HomeMy WebLinkAbout95-27 - Approving a Development Agreement Between the City of Newport Beach and Ford Motor Land Development Corporation (Development Agreement No. 8)ORDINANCE NO. 95 -27
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
NEWPORT BEACH APPROVING A DEVELOPMENT
AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND
FORD MOTOR LAND DEVELOPMENT CORPORATION
(DEVELOPMENT AGREEMENT NO. 8)
The City Council of the City of Newport Beach DOES ORDAIN as
follows:
SECTION 1. The City Council finds and declares that:
a. The State Legislature and the City Council have
determined that the lack of certainty in the approval of
development projects can result in a waste of resources,
escalate the cost of housing and other development to the
consumer, and discourage investment in and commitment to
comprehensive planning which would make maximum efficient
utilization of resources at the least economic cost to the
• public; and
b. Assurance that an applicant may proceed with a
project in accordance with existing policies, rules and
regulations, and subject to conditions of approval, will
strengthen the public planning process, encourage private
participation in comprehensive planning, and reduce the
economic costs of development; and
C. California Government Code Section 65864 et
seq. authorizes cities to enter into development agreements
with any person having a legal or equitable interest in real
• property for the development of the property; and
d. Chapter 15.45 of the Newport Beach Municipal
Code provides requirements and procedures for the adoption of
development agreements; and
e. The amended Development Agreement No. 8 has
been prepared in compliance with state law and the Newport
Beach Municipal Code; and
• f. In compliance with state law and city
ordinance, a duly noticed public hearing was held by the City
Council to consider the amended Development Agreement No.8;
and
g. The City Council finds that said Development
Agreement is in compliance with the California Environmental
Quality Act and Guidelines promulgated thereunder; and
h. The City Council finds that said Development
Agreement is in conformance with the Newport Beach General
Plan, as amended.
• SECTION 2. Pursuant to Chapter 15.45 of the Newport
Beach Municipal Code establishing procedures and requirements
for the consideration of development agreements, the amended
Development Agreement No. 8 for Ford Motor Land Development
Corporation attached hereto as Exhibit "A ", is hereby
approved.
SECTION 3. Copies of said Development Agreement are on
file in the offices of the City Clerk and Planning Department
of the City of Newport Beach and said Development Agreement is
made a part hereof by this reference.
• SECTION 4. This Ordinance shall be published once in the
official newspaper of the City, and the same shall be
effective thirty (30) days after the date of its adoption.
This Ordinance was introduced at a regular meeting
of the City Council of the City of Newport Beach held on the
10th day of
July , 1995, and was adopted on the
24thday of July 1995, by the following vote, to wit:
• AYES, COUNCIL MEMBERS EDWARDS,
WATT, DEBAY, HEDGES, COX, GLOVER, O'NEIL
•
•
ATTEST:
Z
CITY CLERK
NOES, COUNCIL MEMBERS NONE
ABSENT COUNCIL, MEMBERS NONE
.AA",-D
MAYOR
Attachment
Exhibit "A": Amended Development Agreement No
Motor Land Development Corporation
gj \ag \fordord.doc
8 for Ford
Recording Requested By and
When Recorded Return to:
City Clerk
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92660
0-
DEVELOPMENT AGREEMENT
BETWEEN
THE CITY OF NEWPORT BEACH
AND
FORD NSOTOR LAND DEVELOPMENT CORPORATION
NO. 8
• Approved July 24, 1995
Ordinance No. 95-27
Submitted By:
Paone, Callahan, McHolm & Winton
19100 Von Karman Avenue,
8th Floor
P.O. Box 19613
Irvine, CA 92713 -9613
071495 / F31331 -M / 15774.16
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (the "Agreement ") is entered into between the City of Newport
Beach (the "City"), and Ford Motor Land Development Corporation ( "Ford Land ").
r
•
Amk
RECITALS. This Agreement relates to the following:
1.1 Purpose of Agreement. This Agreement is intended to:
a. Provide for the orderly transition of the land use on a property commonly known as
the "Loral Site" from commercial /industrial uses to less intense residential uses.
b. Establish the parameters of building height, density, location, and timing to minimize,
to the extent reasonably feasible, any significant adverse impacts of Ford Land's
proposed residential development on the environment.
C. Provide the City with greater certainty that the project will be implemented as
presently planned so that the City will receive the substantial economic benefits
projected by the project's fiscal impact study.
d. Provide public benefits to the City in excess of normal mitigation requirements in the
form of (1) substantial financial assistance from Ford Land in resolving a long-
standing traffic circulation issue in the Eastbluff community, (2) financing by Ford
Land of extraordinary environmental monitoring of site remediation, and (3) and the
provision of assurances by Ford Land with respect to the funding and /or provision of
affordable housing units within the City.
1.2 Authorization. This Agreement is authorized by, and is consistent with, the provisions of
65864 et seq. of the Government Code of the State of California, and Chapter 15.45 of the
Newport Beach Municipal Code.
1.3 Interest of Ford Land. Ford Land is the legal and /or equitable owner of approximately 98.1
acres of real property located in the City and more particularly described in Exhibit "A" (the
"Property").
1.4 Development of the Property. Subject to those conditions and mitigation measures identified
in Environmental Impact Report No. 153 for Ford Land Newport (the "EIR ") which were
imposed by the City Council as conditions to approval of all or part of the Development Plan,
071495 / F31331 -OM / 15774.16
I
this Agreement authorizes development on the Property consistent with the Development
Plan.
1.5 Condition of Site. The Property is occupied by buildings constructed over the last thirty
years to house research, design, and industrial types of uses. As part of the Development
Plan, Ford Land will demolish the existing structures. Additionally, prior activities on the
site have resulted in soil and groundwater contamination which would be remediated by Ford
Land with or without this Agreement.
• 1.6 Proieect Benefits. While the landowner has the right to continue the presently permitted uses
on the Property, existing circumstances present the City with the opportunity to establish,
with the landowner's cooperation, new economically and environmentally viable uses on the
Property. The proposed project presents a relatively unique opportunity to reduce the
intensity of land uses occurring on the site. The EIR has demonstrated that the conversion
of the existing research and development uses on the Property to residential uses will provide
substantial benefits to the community through the improvement of environmental conditions
related to traffic, air pollution, the potential for groundwater pollution, the consumption of
non - renewable energy resources, and noise. Additionally, a review of the fiscal impacts of
the proposed project indicates that the City will derive increased revenues from property and
sales tax as a result of the proposed project.
1.7 Planning Commission/City Council HearinLs. The Planning Commission, after giving
appropriate notice, held public hearings to consider this Agreement, the General Plan
Amendment (see Section 2.22 below), the proposed PC Text amendments (see Section 2.29
below), and the EIR on June 8, 1995. The City Council conducted public hearings on the
Development Plan, the Development Agreement, and the EIR on July 10, 1995.
1.8 Consistency. This Agreement is consistent with the various elements of the Newport Beach
General Plan, the Development Plan, and other applicable ordinances, plans, and policies of
the City. This Agreement is also consistent with the purpose and intent of state and local
• laws authorizing development agreements in that it represents Ford Land's commitment to
comprehensive planning, provides certainty in the approval of subsequent projects subject to
compliance with conditions, reduces the economic costs of development by providing
assurance to Ford Land that it may proceed with projects in accordance with existing
regulations, and provides assurance to adjoining property owners that limits on the height of
structures and amount of development as specified in the Development Plan will remain in
full force and effect during the term of this Agreement.
1.9 Police Power. The City Council has determined that this Agreement is in the best interests
of the health, safety and general welfare of the City, its residents and the public, was entered
into pursuant to, and represents a valid exercise of, the City's police power, and has been
071495 / F31331 -M 1 15776.16
2
Iu
approved in accordance with the provisions of state and local law that establish procedures
for the approval of development agreements.
1.10 City Ordinance. On July 10, 1995, the City Council approved this Agreement and conducted
the first reading of Ordinance No. 95 -27 approving and authorizing the City to enter into this
Agreement (the "Adopting Ordinance "). On July 24, 1995, the City Council completed
adoption of the Adopting Ordinance. The Adopting Ordinance became effective on
August 23, 1995.
2.1 The "Adopting Ordinance" refers to City Ordinance No. 95 -27 adopted by the City Council
on July 24, 1995, authorizing the City to enter into this Agreement.
2.2 "Agreement" refers to this "Development Agreement Between the City of Newport Beach and
Ford Motor Land Development Corporation." The Agreement is also identified by the City
as the City's Development Agreement No. 8.
2.3 "Annual Review" refers to the review of Ford Land's good faith compliance with this
Agreement as set forth in Section 6.
2.4 The "Approval Date" means July 24, 1995, the date on which the City Council voted to
approve this Agreement and the Adopting Ordinance.
2.5 All forms of use of the verb "assign" and the nouns "assignment" and "assignee" shall include
all contexts of hypothecations, sales, conveyances, transfers, leases, and assignments.
2.6 "CEOA" and the "CEOA Guidelines" refers to the California Environmental Quality Act and
the CEQA Guideline promulgated by the Secretary of Resources of the State of California.
• 2.7 "City" refers to the City of Newport Beach, California.
2.8 "City Council" refers to the City Council of the City.
2.9 "Cure Period" refers to the period of time during which a Default may be cured pursuant to
Section 9.
2.10 A "day„ or "days" refers to a calendar day, unless expressly stated to be a business day.
072495 / F31331 -OM 115774.16
KI
2.11 A "Default" refers to any material default, breach, or violation of the provisions of this
Agreement. A "City Default" refers to a Default by the City, while a "Ford Land Default"
refers to a default by Ford Land.
2.12 "Development Permit" means building permits, grading permits and other permits authorizing
construction activity.
2.13 The "Development Plan" refers to (i) the General Plan Amendment (see Section 2.22), (ii)
•the PC Text (see Section 2.29), and (iii) the Tentative Map (see Section 2.33 below).
2.14 The "Effective Date" refers to the effective date of the Adopting Ordinance and is the
effective date of this Agreement.
2.15 The "EIR" refers to Environmental Impact Report No. 153 of the City of Newport Beach.
2.16 An "Estoppel Certificate" refers to the document certifying the status of this Agreement
required by Section 6.6 in the form of Exhibit "D ".
2.17 An "Exhibit" refers to an exhibit to this Agreement. All Exhibits are incorporated as a
substantive part of this Agreement. The Exhibits to this Agreement are:
Exhibit A: Legal Description of the Property
Exhibit B: Map of the Property
Exhibit C: List of Project Conditions
Exhibit D: Estoppel Certificate
2.18 "Existing General Regulations" means those General Regulations approved by the City on or
before the Approval Date (irrespective of their effective date) and not rescinded or superseded
by City action taken on or before the Approval Date.
. 2.19 Financing District. "Financing District" for purposes of this Agreement means any
assessment district, special district, community facilities district, maintenance district, or
other similar district, legal entity, or mechanism formed pursuant to the provisions of
legislation in effect at the time the Financing District is formed. The purpose of a Financing
District is to finance the cost of public improvements, facilities, maintenance, or services.
Examples include districts formed under the Municipal Improvement Acts of 1911 and 1913
and the Mello -Roos Community Facilities District Act of 1982.
2.20 "Ford Land" refers to Ford Motor Land Development Corporation.
2.21 "Future General Regulations" means those General Regulations (see Section 2.23 below)
adopted by the City after the Approval Date.
071495 1 "1331 = 1 15774.16
4
2.22 The "General Plan Amendment" means GPA- 93 -2(A) amending the general plan of the City
as approved by the City Council on July 10, 1995.
2.23 "General Regulations" means those ordinances, rules, regulations, policies, and guidelines
of the City, which are generally applicable to the use of land and /or construction within the
City and include, the Fair Share Traffic Contribution Fee Ordinance, Uniform Building Codes
and water and sewer connection and fee ordinances.
• 2.24 "General Plan" refers to the City's General Plan in effect on the Approval Date, plus all
amendments to the General Plan adopted by the City on or before the Approval Date as part
of the Development Plan.
2.25 "Includes" and all contexts and forms of the words "includes" and "including" shall be
interpreted to also state "but not limited to. "
2.26 "Mortgagee" refers to the holder of a beneficial interest under any mortgage, deed of trust,
sale - leaseback agreement, or other transaction under which all or a portion of the Property,
including those portions acquired by assignees, is used as security (a "Mortgage ") or the
owner of any interest in all or any portion of the Property under a Mortgage, including those
portions acquired by assignees.
2.27 "Notice" refers to any written notice or demand between the Parties required or permitted by
this Agreement.
2.28 The "Parties" refers to the City and Ford. Land and a "Party„ shall refer to either of the
Parties.
2.29 The "PC Text" refers to the "Aeronutronic Ford Planned Community District Regulation"
as amended by the City Council on July 10, 1995, with the approval of Amendment No. 800.
• 2.30 "Planning Commission" refers to the Planning Commission of the City.
2.31 The "Project" refers to the proposed development of the Property pursuant to the
Development Plan and this Agreement.
2.32 The "Property" refers to the real property described on Exhibit "A" and depicted on
Exhibit "B."
2.33 The "Tentative Man" refers to the tentative tract map for Tract No. 14925 approved by the
City Council on July 10, 1995.
071495 / F71331 -=! 15774.16
5
3. CONDITIONS TO DEVELOPMENT.
3.1 Introduction. The provisions of this Section express the intent of the Parties regarding the
extent to which this Agreement vests Ford Land's right to proceed with the development
described in the Development Plan. Ford Land acknowledges that its right to proceed with
development described in the Development Plan is subject to numerous conditions including
the following:
• (a) The specific limitations and restrictions contained in the Development Plan;
(b) Conditions and mitigation measures imposed by the City Council to mitigate
sign ficant effects identified in the FIR;
(c) Conditions imposed by the City as a result of subsequent or supplement environmental
analysis pursuant to provisions of CEQA and the CEQA Guidelines;
(d) Compliance with the terms and conditions specified in this Agreement; and
(e) Compliance with the Existing General Regulations.
3.2 Compliance with Development Plan Conditions /Mitigation Measures. Ford Land
acknowledges that City Council approval of the Development Plan and this Agreement was
subject to compliance with numerous conditions and mitigation measures designed to
minimize or eliminate the significant adverse effects of the Project and insure the health,
safety, and welfare of nearby residents as well as residents of the proposed project. Pursuant
to CEQA, many of these conditions and mitigation measures impose specific development
standards and requirements to be implemented in conjunction with further study and analysis
of site or subsurface conditions before certain specified development activity is permitted. In
certain instances, these mitigation measures may exceed those which might otherwise be
appropriate under "nexus" and "rough proportionality" tests. By entering into this
• Agreement, Ford Land agrees to be bound by and waives any protest of any such project
conditions. The conditions and mitigation measures adopted by the City Council are set forth
in Exhibit C.
3.3 Compliance with General Regulations. Ford Land is required to comply with the Existing
General Regulations. As to those Existing General Regulations which require the payment
of fees, costs, and expenses, for a development application, the applicable fee, cost, or
expense shall be that in effect on the date such an application is determined by the City to be
complete. Ford Land shall also comply with any Future General Regulation that does not
impair or affect its ability to develop the Property in accordance with the Development Plan.
Ford Land shall also comply with all provisions of the Uniform Building Code, whether
071495 / F31331-002 / 15774.16
Adak
M
adopted before or after the Approval Date, which are in effect at the time applications for
specific development permits are deemed complete.
3.4 Water Capital Improvement Charges. Section 14.33.040 of the City's Municipal Code
provides for the payment of a "water capital improvement charge" for lands designated
pursuant to Section 14.33.030 of the Municipal Code. Section 14.33.040 of the Municipal
Code relates only to system facilities that will be needed to serve an "undeveloped area."
Because the Project consists of replacement of an existing use on a previously developed site
• which can be adequately served from existing City water facilities, Ford Land shall not be
required to pay water capital improvement fees to the City.
3.5 Public Health and Safety /Uniform Codes. This Agreement shall not prevent the City from
either (i) adopting Future General Regulations (including uniform codes which are based on
recommendations of a multi -state professional organization and become applicable throughout
City, such as, but not limited to, the Uniform Building Code, Uniform Electrical Code,
Uniform Mechanical Code or Uniform Fire Code) or (ii) taking action or imposing conditions
inconsistent with the Development Plan on future discretionary approvals, where such actions
or conditions are the direct result of findings by the City that those actions are necessary to
avoid consequences which are injurious or detrimental to the public health and safety. This
reservation of authority is subject to the following:
a. City shall neither (i) refuse to issue or approve any application or permit nor (ii) apply
to the Project or the Property any conditions or Future General Regulations if such
action would prevent, preclude, delay, alter, or in any way affect (in a manner not
satisfactory to Owner) the implementation of all or any portion of the Development
Plan until the City Council makes a finding that such action is the only feasible means
to correct or avoid such injurious or detrimental consequence.
b. Any such action taken pursuant to this Section shall apply only to the extent, and for
the duration, necessary to correct, avoid or mitigate such injurious or detrimental
• consequence condition.
3.6 Environmental Remediation. Certain portion(s) of the Property will require environmental
remediation before occupancy. Subject to all other provisions of this Agreement, occupancy
permits shall be issued by the City for those portions of the Property if Ford Land has
complied with Mitigation Measures 4, 5, and 6 set forth in Section 3.10 (Public Health and
Safety) of the EIR and the environmental remediations in Exhibit C.
4. BENEFITS TO FORD LAND.
4.1 Right to Develop. During the term of this Agreement and subject to the provisions of
Sections 3 and 5, Ford Land shall have a vested right to develop, and receive occupancy
071495 / F31331 -ON / 15774.16
permits for construction on, the Property to the full extent permi-- tr r ]e Development
Plan, including grading of the site as contemplated by the elevations Fa on the Tentative
Map, all subject to:
(a) Compliance with CEQA;
(b) Compliance with the terms and conditions of this Agreemem
• (c) Compliance with the City's grading ordinance in effect on cLe: _- �proval Date; and
(d) Compliance with conditions imposed on any subdivision map = i-- -ritted by Ford Land
subsequent to the Effective Date, provided that the City may impose subdivision
map conditions which are:
(i) Necessary to mitigate any significant adverse impact -rc 33entified in the EIR;
(ii) Necessary to ensure compliance with the subdivision � _=n and improvement
standards of the City in effect on the Approval Date. •_-r
(iii) Necessary to make the findings required by the Sub:i-•�-ion Map Act.
Subject to the provisions of this subsection and Sections 3 and 5, City shall ._`y take action which
complies with and is consistent with the Development Plant and this Agreement un':-� Ford Land otherwise
consents in writing. City shall not impose any condition or requirement (whether ire form of a fee, tax,
requirement for dedication or reservation of land, or any other type of exaction) e- :�)e Project, except as
expressly permitted by this Agreement or required (as opposed to permitted) by st__e or federal law.
4.2 Conflicting Measures. Except as expressly provided in this Agreement. no initiative measure,
moratorium, referendum (except as provided in Government Code Section 65857.5),
ordinance, statute or other provision of law which in any way limits or r,:stricts development
• of the Property to the full extent permitted by the Development Plan and this Agreement
(including density, intensity, timing, phasing, and sequencing) shall be applied to the Property
during the term of this Agreement.
4.3 Reservations or Dedications of Land. Except as expressly provided in this Agreement, no
dedications or reservations of the Property shall be required of Ford Land in conjunction with
the application or issuance of any permit authorizing development, construction, use, or
operation of the Property.
4.4 TCA Credit. As a result of the reduction in traffic impacts generated by converting the
Project site to less intense uses than presently exist, the Transportation Corridor Agencies (the
"TCA ") have acknowledged a credit to Ford Land in the amount of $3,436,966 in relation
071495 / F31331-002 / 15774.16
Aighk
0
to the construction of the San Joaquin Hills Transportation Corridor (SJHTC). This credit
shall be applied toward any Project fees otherwise payable to the City and /or the TCA in
connection with the construction of the SJHTC or any other transportation corridor for which
fees are imposed upon development.
If this credit is larger than the Project's SJHTC corridor fee obligation and Ford Land and
the TCA enter into an agreement to allow Ford Land to sell or transfer any credits in excess
of the Project's SJHTC fee obligation, the City shall not object to the sale or transfer of the
• credits on the terms set forth in that Ford Land /TCA agreement.
4.5 Fair Share Ordinance. As a result of the reduction in traffic impacts generated by the Project
and the traffic improvements included within the Project, no fees shall be payable for the
Project under the City's Fair Share Traffic Contribution Ordinance.
4.6 Sewer Connection. The City shall provide sewer service to the Project through a connection
to existing City sewer lines serving the adjacent Belcourt communities and the existing Loral
site. City shall provide sewer facilities only to the boundaries of the Project and Ford Land
shall pay any sewer connection or sewer service fees required by the Existing General
Regulations.
4.7 Storm Drains. The City shall provide drainage capacity to the Project by allowing connection
to existing City storm drains.
4.8 Park Fees. Ford Land shall comply with all City park dedication and park in lieu fee
requirements through the payment of park fees in the amount of $6,897.37 per residential
unit. Ford Land shall advance Five Hundred Thousand Dollars ($500,000) in park fees to
the City within sixty days after the Effective: Date. The fees paid in advance shall be credited
toward, and satisfy park fees for, the first seventy -three residential building permits issued
for the Project. Thereafter, Ford Land shall pay $6897.37 per residential unit until all park
fees required by this Agreement have been paid. These payments shall satisfy the City's Park
Dedication Ordinance. No dedications or reservations of land except as expressly identified
in the Development Plan shall be required of the Project.
4.9 Time for Construction and Completion of Project. Subject to the provisions of this
Agreement and the Development Plan, Ford Land shall have the right to decide the timing,
phasing, and sequencing of construction on the Property and shall be entitled to apply for,
and receive timely approval of, permits or approvals at any time.
4.10 Extension of Tentative Map. To the extent permitted by law, the City shall extend through
the term of this Agreement (pursuant to Government Code Section 66452.6) the Tentative
Map (see Section 2.33 above) and all tentative subdivision maps applied for by Ford Land
and approved by the City in the future.
071495 / F31331-002 ! 15774.16
9
4.11 Phased Final Mans. Ford Land or any successor may file as many as forty phased final maps
for each tentative tract map approved for the Project.
4.12 Development Standards. The PC Text has been adopted by City Resolution No. 95 -89.
Because this Development Plan has been prepared to meet the unique design parameters of
this Project, the City Council has determined that rigid consistency with the City's
development standards for other areas of the City is neither necessary nor appropriate.
Therefore, as to this Project, the provisions of the Development Plan and this Agreement
• shall prevail over any conflicting provision of any other City ordinance or resolution.
4.13 Fees. Taxes. and Assessments. The City shall not impose any additional fee, tax, or
assessment on all or any portion of the Project or the Property, whether as a condition to a
Future General Regulation or otherwise, except such fees, taxes, and assessments as are
described in or required by this Agreement. Ford Land shall be responsible only for those
fees, taxes, and assessments which presently are applicable to the Property under the General
Regulations in effect on the Approval Date. Except as set forth in Section 4.8 above, the
rates of such fees, taxes, and assessments shall be the rates in existence at the time said fees,
taxes, and assessments are normally required to be paid to the City.
5. PUBLIC BENEFITS.
5.1 Reduced Impacts. This Agreement confers a substantial public benefit by converting an
existing commercial /industrial use to a less intense residential use. The EIR for the Project
has established specific improvement in environmental conditions related to reduced potential
for impacts arising from traffic, air pollution, the consumption of non - renewable energy
resources, the potential for groundwater pollution, and noise.
5.2 Fiscal Benefits. The project's Fiscal Impact Report projects that, at maximum Project
buildout, the City will receive net recurring revenues of approximately $571,700 per year in
• constant 1995 dollars. The recurring surplus is based on projected annual Project revenues
of $963,600 and projected annual costs of $391,000.
5.3 Affordable Housing. The City's Housing Element presently sets forth goals and strategies
for providing housing units for very low, low, and moderate income families and individuals
( "Affordable Units "). The Housing Element requires residential developers to provide
affordable units, either on -site or off -site, with the range of affordability and the number of
units contingent upon numerous factors including the presence or absence of development
incentives, the extent of any financial contribution to the development by public entities, and
the overall feasibility of providing affordable housing given the unique characteristics of the
project. The Housing Element specifically encourages the use of development agreements
and expedited permitting to encourage the construction and occupancy of affordable housing
071095 1 F31331 -M 1 15770.16
III]
AlEk
projects. The City and Ford Land agree that this development presents a unique opportunity,
possibly in combination with one or more other land owners having affordable housing
obligations to construct affordable housing on vacant land within the City using a unique
public /private planning and financing process outlined in this Section:
a. Affordable Housing Percentage. The Housing Element requires a project such as this
to provide a number of affordable units ranging between 15% and 25% of the
residential units constructed by the landowner to the extent feasible. These units are
• to remain affordable for a minimum of twenty years. The City and Ford Land agree
that the cost and delay attendant to environmental remediation of the Property, Ford
Land's agreement to advance park fees, and the other public benefits provided by
Ford Land under this Agreement make infeasible the production of affordable housing
in excess of 15% of the total number of residential units constructed pursuant to the
Development Plan.
b. Task Team Participation / In Lieu Fees. Ford Land shall satisfy its affordable
housing requirements by participating in a "Task Team" to be established by
resolution of the City Council. The primary duties of the Task Team will be to
identify, evaluate, and implement one or more affordable housing projects to satisfy
Ford Land's affordable housing obligations pursuant to the Housing Element and this
Agreement. The Task Team shall consist, at a minimum, of a member of the City
Council, a representative of Ford Land, and members of the City staff. The City
Council also may appoint to the Task: Team representatives of other property owners,
builders, or persons experienced in the development of affordable housing. Ford
Land shall make available to the Task Team its experience and expertise in land
development upon reasonable request by the Task Team.
The Task Team shall submit to the City Council a statement of goals and priorities
within ninety days after the later of (i) the Effective Date or (ii) the appointment of
• the Task Team by the City Council. The Task Team shall have a single term of two
years, unless extended by mutual agreement of the City and Ford Land. The Task
Team shall report to the City Council no less than once every ninety days after
submittal of its statement of goals and priorities. The goal of the Task Team shall be
to submit to the City Council, within two years after the Effective Date, a report
identifying one or more affordable housing projects to be funded in whole or in part
by Ford Land. If a project is identified and implemented, Ford Land shall contribute
$2,500,000 (less $5,000 for each of the 500 units allowed by the Development Plan
which Ford Land agrees, in writing, not to build) toward the implementation of that
project. Subject to Ford Land's ongoing participation in Task Team implementation
efforts, payment of this sum will satisfy Ford Land's affordable housing obligations.
071495 / n]331-002 / 15774.16
I1
C. Option If No Task Team Project. If either (i) the City Council does not require Ford
Land to financially contribute to implementation of a Task Team project as described
in Subparagraph b above or (ii) the Task Team does not recommend implementation
of an affordable housing project to satisfy Ford Land's affordable housing
requirement, then Ford Land shall have the option, within sixty days after the term
of the Task Team expires, to satisfy that requirement by notifying the City that it will
either:
• L construct or rehabilitate off -site residential units within the City and make
those units affordable to moderate income families or individuals for 20 years
or more from the date of occupancy; or
ii. pay an affordable housing in lieu fee of $5,500 for each residential building
permit issued within the Project; or
iii. construct fewer than the number of affordable units required under Subsection
c(i) above and pay an affordable housing in lieu fee equal to:
• $5,500 for every residential building permit issued for the Project
minus
$36,000 multiplied by the number of affordable units constructed
and/or refurbished by Ford Land.
Under this option (iii), Ford Land's affordable housing in lieu fee shall not be
less than twenty percent of Ford Land's total maximum financial commitment
pursuant to option (ii).
• 5.4 Environmental Monitoring. Due to existing soil and groundwater contamination on the
Project site, before City will authorize occupancy of any residential structure on the property,
Ford Land is required by law, as well as by the City's conditions and mitigation measures
for the Project, to obtain approvals from other public agencies, such as the Regional Water
Quality Control Board and the Orange County Health Care Agency ( "County Health "). By
this Agreement, Ford Land also will pay for the cost of an environmental monitor to be
retained by the City to review all Ford Land submittal to those agencies. Ford Land shall
provide the monitor with copies of all submittal concurrently with their delivery to those
agencies.
Additionally, Ford Land shall, if requested by the monitor, provide to the City the underlying
data which supports Ford Land's request to County Health for a Health Risk Assessment of
071495 / F31331 -M / 15774.16
12
•
the Project site. The City may have either the monitor or another consultant review and
independently verify the accuracy and validity of the Health Risk Assessment and related
analysis and conclusions. City may advise County Health, in writing and prior to any final
action by that agency, of any material or potentially significant effort or apparent error, and
the Health Risk Assessment or any related analysis or conclusion. The monitor shall not
perform any independent collection of data. The monitor performing this function may be
the same as, or may be different than, the monitor performing the general overview described
in the first paragraph above.
In performing either function, the monitor may report his or her findings to the City Council
and the City Council may, in turn, take any action it deems appropriate which is not
inconsistent with this Agreement. The selection of the monitor and the data consultant and
their scope of work shall be subject to the mutual approval of the City and Ford Land.
The provisions of this Section are intended, and shall be construed, to supplement mitigation
measures imposed by the City Council relative to site remediation as specified in Exhibit C
and, in the event of any inconsistency between the provisions of this Section and Project
mitigation measures, the mitigation measure shall control.
5.5 Eastbluff Traffic. The Eastbluff community in the vicinity of the Project site has had a
historical concern regarding the impact of through traffic on its streets. The EIR has
concluded that the Project will not contribute sufficient through traffic to constitute a
significant impact on this existing problem. Further, Ford Land has no legal obligation to
correct the existing problem and the City has no authority independent of this Agreement to
impose a condition requiring Ford Land to correct the existing problem. Pursuant to this
Agreement, however, Ford Land shall contribute to the solution to the existing traffic
problem as follows:
A
a
The determination of a solution shall be dependent upon an agreement between the
Eastbluff community and the City.
If the "solution" costs $50,000 or less:
i. Ford Land will pay one - hundred percent of the total cost of the capital
improvements /traffic studies (as opposed to long -term maintenance) of the
solution as actually implemented; or
If the "solution" costs more than $50,000:
Ford Land will pay one -third of the total cost of the capital
improvements /traffic studies as actually implemented, with a minimum
payment of $50,000 and a maximum payment of $75,000.
071495 / M331 -M 1 15774.16
13
C. Ford Land will not be required to make a deposit of funds until a "solo: ion" actually
is approved by the City for implementation. Any funds actually deposited but not
used to implement the solution shall be returned to Ford Land.
d. If the City and the Eastbluff community have not agreed on a "solution' within one
year from the Effective Date, this obligation shall terminate.
e. If a lawsuit is brought by any person or entity challenging any of the Ford Land
• approvals on the basis of the Eastbluff traffic conditions and that lawsuit is not
terminated within thirty days after service, the provision requiring Ford Land's
contribution to the traffic solution will terminate.
5.6 Drainage. Concerns have been expressed in the public process regarding the impacts of the
Project's drainage on nearby residential communities. The EIR has established that the
Project will not have any significant drainage impacts on any other residential communities.
Nonetheless, pursuant to this Agreement Ford Land will take the following actions:
a. Upon formation of the Master Community Association, the conditions, covenants, and
restrictions will provide that:
i. All structures shall have gutters and downspouts;
ii. The Master Association shall routinely maintain the on -site storm drain system
to facilitate proper operation of the system; and
iii. The submittal of landscape plans for each individual lot shall provide that
water from downspouts will be transported to the street through an appropriate
collection system.
b. The Project site will be graded so that surface drainage will flow to the streets where
• it will be collected and channeled into a closed storm drain system.
S.7 Belcourt Terrace Landscape Screen. A landscape screen shall be provided along the
boundary of the property and the Belcourt Terrace project adjacent to the Hillsdale Drive
boundary wall. Ford land shall plant additional trees to supplement the screening provided
by existing trees that Ford Land will preserve subsequent to development. The design details
for the landscape screen, including the size, species and spacing of trees as well as
appropriate conditions, covenants and restrictions to facilitate the long term maintenance of
the landscape screen by individual lot owners will be reviewed and approved as part of the
"B Map" tentative tract map approval process. City shall notify all property owners on
Hillsdale Drive prior to the public hearing on any tentative tract map submitted for this
portion of the property.
071495 / F31331-002 1 15774.16
14
6. ANNUAL REVIEW.
6.1 City and Ford Land Responsibilities. At least every twelve (12) months during the Term,
the City shall review Ford Land's good faith substantial compliance with this Agreement (the
"Annual Review "). After the Annual Review, the City's finding of good faith compliance
by Ford Land shall be conclusive for the purposes of future Annual Reviews or legal action
between the Parties unless the City is unaware of substantial evidence of non - compliance and
could not have discovered the evidence through the exercise of reasonable diligence. Either
• Party may address any requirements of the Agreement during the Annual Review. However,
fifteen (15) days' written Notice of any requirement to be addressed shall be made by the
requesting Party. If, at the time of the review, an issue not previously identified in writing
is required to be addressed, the review shall be continued for no more than sixty days at the
request of either Party to afford sufficient time for analysis and preparation of a response.
6.2 Opportunity to be Heard. Ford Land shall be permitted an opportunity to be heard orally and
in writing at any noticed public hearing or meeting related to the Annual Review.
6.3 Information to be Provided to Ford Land. The City shall mail to Ford Land a copy of the
staff report and related exhibits concerning Agreement performance a minimum of fifteen (15)
days before the Annual Review.
6.4 Mitigation Monitoring. The Annual Review shall include an analysis of compliance with the
various conditions and mitigation measures contained within the mitigation monitoring plan.
Ford Land shall be found in compliance with this Agreement unless the City Council
determines, based upon the evidence presented at the Annual Review, that Ford Iand has not
complied with one or more mitigation measures or conditions (including those imposed as a
result of subsequent environmental analysis) applicable to the grading of, and building on,
the Property as of the date of the Annual Review.
• 6.5 Review Letter.
a. _After Finding of Compliance. If Ford Land is found to be in compliance with the
Agreement after the Annual Review, the City shall issue, within ten (10) days of Ford
Land's written request, a letter to Ford Land stating that the Agreement remains in
effect and Ford Land is not in Default.
b. After Cure of Default. If Ford Land is found to be in Default under this Agreement
at the Annual Review, but subsequently cures that default in the manner provided by
this Agreement, the City shall issue, within ten (10) days of Ford Iand's written
request, a letter to Ford Land stating that the Agreement remains in effect and Ford
Land is not in Default.
071495 / F3133I-0OM / 15774.16
15
6.6 Estoppel Certificate. Either Party may at any time deliver written Notice to the other Party
requesting an estoppel certificate (the "Estoppel Certificate ") stating:
(a) The Agreement is in full force and effect and is a binding obligation of the Parties.
(b) The Agreement has not been amended or modified either orally or in writing or, if so
amended, identifying the amendments.
. (c) To the best of the signing Party's knowledge, no Default in the performance of the
requesting Party's obligations under the Agreement exists or, if a Default does exist,
the nature and amount of any Default.
A Party receiving a request for an Estoppel Certificate shall provide a signed certificate to
the requesting Party within thirty (30) days after receipt of the request. The Planning
Director may sign Estoppel Certificates on behalf of the City. An Estoppel Certificate may
be relied on by assignees and Mortgagees. The Estoppel Certificate shall be substantially in
the same form as Exhibit "D."
6.7 Failure to Conduct Annual Review. The City's failure to conduct an Annual Review shall
not constitute or be asserted by the City as Ford Land's Default.
7. GENERAL PROVISIONS.
7.1 Effective Date. This Agreement and the obligations of the Parties shall be effective as of the
Effective Date. However, this Agreement shall bind the Parties as of the Approval Date,
subject only to the Adopting Ordinance becoming effective pursuant to California law.
7.2 Term of Agreement. The term of this Agreement (the "Term ") shall begin on the Effective
Date and continue for twenty -five (25) years unless otherwise terminated or modified pursuant
• to this Agreement.
7.3 Assignment. Ford Land has the absolute right to assign (see Section 2.5) its rights and /or
delegate its obligations under this Agreement as part of an assignment of all or a portion of
the Property. Any assignment shall be subject to the provisions of this Agreement. As long
as Ford Land owns any part of the Property, Ford Land may assign the benefits of this
Agreement without delegating the obligations for the portion of the Property assigned. If that
occurs, however, the benefits assigned shall remain subject to the performance by Ford Land
of the corresponding obligations.
Where an assignment includes the delegation of the corresponding obligations, those
obligations become solely the obligations of the assignee. If an assignee is in Default, then
071495 / F3]331 -= / 15774.16
16
as to Ford Land or any assignees not in Default, the Default shall not constitute their Default,
give grounds for termination of their rights under this Agreement or be a basis for an
enforcement action against them.
Under no circumstances, shall Ford Land be relieved of its obligations under Sections 5.3,
5.4, 5.5, 5.6 and 5.7.
7.4 Amendment of Agreement.
• (a) Subject to the provisions of Subsection (b), this Agreement may be amended from
time to time by the mutual consent of the Parties, or their successors in interest, but
only in the manner provided by the Government Code and this Agreement. After any
amendment, the term "Agreement" shall refer to the amended Agreement.
(b) The City Council shall not approve, and Ford Land shall not request, any amendment
to the provisions of the Development Plan or this Agreement that would increase the
maximum permitted gross floor area or the maximum permitted building height above
that established as of the Effective Date of this Agreement. This Subsection shall
prevail over any conflicting ordinance, resolution, policy or plan adopted by the City
Council.
7.5 Enforcement. This Agreement is enforceable by each of the Parties and their respective
successors and assigns.
7.6 Termination. This Agreement shall be deemed terminated and of no further effect upon the
occurrence of any of the following events:
(a) Expiration of the twenty-five (25) year term;
(b) Completion of the Project in accordance with the Development Plan and the City's
• issuance of all occupancy permits necessary to fully implement the Project, the
acceptance of all dedications required by this Agreement, and the satisfaction by Ford
Land of its obligations under Sections 5.3, 5.4, 5.5, 5.6, and 5.7 above.
(c) Entry, after all appeals have been exhausted, of a final judgment or issuance of a final
order directing the City to set aside, withdraw, or abrogate the City's approval of this
Agreement or any material part of the Project; or,
(d) The effective date of a Party's election to terminate the Agreement as provided in
Section 9.3 of this Agreement.
071495 1 F31331 -= 1 15774.16
17
8. CONFLICTS OF LAW.
8.1 Conflict with State and Federal Laws and Regulations. Where state or federal laws or
regulations prevent compliance with one or more provisions of this Agreement, those
provisions shall be modified, through revision or suspension, to the extent necessary to
comply with such state or federal laws or regulations and the modified Agreement shall
remain in effect, subject to the following:
• (a) the City shall not request modification of this Agreement pursuant to this provision
unless and until the City Council makes a finding that such modification is required
(as opposed to permitted) by state and federal laws or regulations;
(b) the modifications must be limited to those required (as opposed to permitted) by the
state or federal laws;
(c) the modified Agreement must be consistent with the state or federal laws or
regulations required modification or suspension;
(d) the intended material benefits of this Agreement must still be received by each of the
Parties after modification;
(e) neither the modification nor any applicable local, state, or federal laws or regulations,
may render the modified Agreement impractical to enforce; and
(f) Ford Land consents in writing to the modification.
Ford Land shall have the right to seek judicial review of any proposed modification to ensure
compliance with this Section.
DEFAULT, REMEDIES ANTI) TERMINATION.
9.1 General Provisions. In the event of a Default (see Section 2.11), the Party alleging a Default
shall give the other Party a written Notice of Default. The Notice of Default shall specify
the nature of the alleged Default, and a reasonable manner and sufficient period of time (not
less than thirty (30) days) in which the Default must be cured (the "Cure Period "). During
the Cure Period, the Party charged shall not be considered in Default for the purposes of
termination of the Agreement or institution of legal proceedings. If the alleged Default is
cured within the Cure Period, then a Default shall be deemed not to exist.
9.2 Option to Institute Legal Proceedings or to Terminate. If an alleged Default is not cured
within the Cure Period, the noticing Parry must give the defaulting Party a Notice of intent
071495 / F31331-002 / 15774.16
18
to terminate the Agreement if that Party intends to terminate the Agreement. Within thirty
(30) days after giving of the Notice, the City Council shall hold a public hearing in the
manner set forth in Government Code Sections 65865,65867, and 65868, as amended, to
consider and review the matter. This hearing shall utilize the procedures outlined for the
Annual Review in Section 6 above. The City Council may preside over the hearing or may
appoint a hearing officer to take evidence and submit findings and recommendations to the
City Council.
• 9.3 Notice of Termination. After the City Council hearing described in Section 9.2, the Party
alleging the Default, at its option, may give written Notice of termination of the Agreement
to the other Party and the Agreement shall be terminated immediately upon giving the Notice.
A termination shall be valid only if good cause exists and a preponderance of the evidence
presented to the City Council established the continued existence of a Default after the Cure
Period. The findings of the City Council as to the existence of a Default shall have no weight
in any legal proceeding brought to determine the existence of a Default. The validity of any
termination may be challenged pursuant to Section 11.17, in which case the court shall render
an independent judgment as to the existence of a Default and good cause for termination.
Termination may result only from a material Default of a material provision of this
Agreement.
9.4 Waiver. Failure or delay in giving Notice of Default shall not waive a Party's right to give
future Notice of the same or any other Default.
9.5 Default by Ford Land. In the event of a termination of this Agreement pursuant to Sections
9.1 through 9.3 because of a Default by Ford Land, the City shall have no obligation to
perform any of City's obligations under this Agreement, City's obligations pursuant to the
Development Plan and general regulations shall be unaffected by any Ford Land Default
pursuant to this Agreement unless the Default also constitutes a violation of any of the
conditions specified in Exhibit C. The City's election not to perform as permitted by this
provision shall not constitute a Default.
• 9.6 Default by the City. In the event of a termination of this Agreement pursuant to Sections 9.1
through 9.3 because of a Default by City, Ford Land shall have no obligation to perform any
of Ford Land's obligations under this Agreement, unless otherwise ordered by a court of law.
Ford Land's election not to perform as permitted by this provision shall not constitute a
Default.
9.7 Specific Performance. The Parties agree that the loss by either of them of their respective
rights under this Agreement may not be compensable through monetary damages. Therefore,
the remedy for a Default for each Party shall be limited to specific performance and /or
injunctive relief. This provision applies only to actions related to the Parties' performance
071495 / F31331-002 / 15774.16
19
under this Agreement and does not limit the remedies of either Party under any other
provision of law.
10. ENCUMBRANCES AND RELEASES ON PROPERTY.
10.1 Discretion to Encumber. Ford Land may encumber all or any portion of the Property in any
manner. The City acknowledges that lenders providing financing may require technical
• modifications to the Agreement which do not materially alter the intent of the Parties. The
City agrees to meet, upon request, with Ford Land and /or lenders to negotiate in good faith
any lender request for modification. The City agrees to not withhold unreasonably its consent
to such modification, provided the proposed modification does not materially alter the terms
and provisions of this Agreement, the obligations imposed upon either Party, or the benefits
received by either Party.
10.2 Entitlement to Written Notice of Default. Any Mortgagee and its successors and assigns,
upon written request to the City, shall be entitled to receive from the City written Notice of
any Ford Land Default at the same time Ford Land is provided with Notice pursuant to
Section 6.1.
11. MISCELLANEOUS PROVISIONS.
11.1 Notices. All Notices (see Section 2.27) shall be written and delivered by personal delivery
(including Federal Express and other commercial express delivery services providing
acknowledgments or receipt), registered, certified, or express mail, or telegram to the
addresses set forth below. Receipt shall be deemed complete as follows:
(a) For personal delivery, upon actual receipt;
(b) For registered, certified, or express mail, upon the delivery date or attempted delivery
• date as shown on the return receipt; and
Notices shall be addressed as follows:
To the City: City Manager
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92660
Attention: City Attorney
Attention: Planning Director
071495 1 F313314W 1 15774.16
20
To Ford Land: Ford Motor Land Servlices Corporation
341 -A E. Capitol Avenue, Suite 200
Milpitas, CA 95035
Attention: VP /Western Region
Attention: Development Manager
With a copy to:
• Tim Paone
Paone, Callahan, McHolm &Winton
19100 Von Karman, 8th Floor
P.O. Box 19613
Irvine, CA 92713 -9613
The addresses to which Notices shall be sent may be changed by giving Notice of a new
address.
11.2 Enforced Delay: Extension of Time of Performance. Neither Party shall be deemed to be in
Default where delays or non - performance are due to war, insurrection, strikes, walkouts,
riots, floods, earthquakes, cues, oil spills, casualties, acts of nature, unavailability of
materials, governmental restrictions imposed or mandated by governmental entities,
suspension of rights in accordance with the existence of unforeseen circumstances, litigation,
or similar bases for excused performance. An extension of time for performance shall be
deemed granted for the period of the delay, or longer as may be mutually agreed upon.
11.3 Severability. If any material part of the Agreement is found by a court to be invalid, void,
or illegal, the Parties shall modify the Agreement to implement the original intent of the
Parties. These steps may include the waiver by either of the Parties of their right under the
unenforceable provision. If, however, the Agreement objectively cannot be modified to
implement the original intent of the Parties and the Party substantially benefitted by the
material provision does not waive its rights under the unenforceable provision, the entire
Agreement shall become void. For purposes of this Section, and without excluding the
possible materiality of other provisions of this Agreement, all provisions of Section 4 and 5
are deemed "material."
11.4 Entire Agreement. This Agreement constitutes the entire understanding and Agreement of
the Parties regarding the subject matter of this Agreement. This Agreement supersedes all
negotiations and previous agreements between the Parties regarding that subject matter.
11.5 Waivers. All waivers of the provisions of this Agreement must be in writing and signed by
the Party making the waiver.
071495 / F31331-002 ! 15774.16
21
11.6 Incorporation of Recitals. The Recitals set forth in Section 1 are part of this Agreement.
11.7 Covenant of Good Faith and Fair Dealing. Neither Party shall do anything which shall have
the effect of harming or injuring the right of the other Party to receive the benefits of this
Agreement.
11.8 Covenant of Cooperation. The City shall help Ford Land obtain any permits from either the
City or other public agencies which may be required for development of the Project or as a
• result of any modifications, suspensions, or alternate courses of action allowed by this
Agreement. Ford Land may challenge any such ordinance, measure, moratorium, or other
limitation in a court of law if it becomes necessary to protect the development rights vested
in the Property pursuant to this Agreement.
11.9 Further Actions and Instruments. Upon the request of either Party, the other Party shall
promptly execute, with acknowledgment or affidavit if reasonably required, and file or record
such required instruments and writings and take any actions as may be reasonably necessary
under the terms of this Agreement or to evidence or consummate the transactions
contemplated by this Agreement.
11.10 Successors and Assigns. Subject to Section 7.3 above, the burdens of this Agreement shall
be binding upon, and the benefits of the Agreement inure to, all successors -in- interest and
assigns of the Parties.
11.11 Construction of Agreement. All language in all parts of this Agreement shall be construed
as a whole and given its fair meaning. The captions of the paragraphs and subparagraphs are
for convenience only and shall not be considered or referred to in resolving questions of
construction. This Agreement shall be governed by the laws of the State of California. This
Agreement is not intended to impermissibly contract away the legislative and governmental
functions of the City, and in particular, the City's police powers or to surrender or abrogate
the City's governmental powers over the Property.
• 11.12 Authority to Execute. The person executing this Agreement on behalf of Ford Land warrants
and represents that he /she has the authority to do so and the authority to bind Ford Land to
the performance of Ford Land's obligations under this Agreement.
11.13 Consent. Any consent required by the Parties in carrying out the terms of this Agreement
shall not unreasonably be withheld.
11.14 Effect on Title. This Agreement shall not continue as an encumbrance against any portion
of the Property as to which this Agreement has terminated.
071495 F31331-002115774.16
22
11.15 Recording. The City Clerk shall cause a copy of this Agreement to be executed by the City
and recorded in the Official Records of Orange County no later than ten (10) days after the
Effective Date. The recordation of this Agreement is deemed a ministerial act and the failure
of the City to record the Agreement as required by this Section and Government Code Section
65868.5 does not make the Agreement void or ineffective.
11.16 Institution of Legal Action. In addition to any other rights or remedies, either Party may
institute legal action to cure, correct, or remedy any Default, to enforce any provision of this
is Agreement, to enjoin any threatened or attempted violation of this Agreement, to recover
damages for any Default, or to obtain any remedies consistent with the purpose of this
Agreement. Legal actions shall be instituted in the Superior Court of the County of Orange,
State of California, or in the Federal District Court in the Central District of California.
11.17 Attorneys' Fees. In any arbitration, quasi - judicial, administrative, or judicial proceeding
between the Parties initiated with respect to this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees and all costs, expenses, and disbursements in connection
with such action.
11.18 No Third Party Beneficiaries. There are no third party beneficiaries to this Agreement or to
any provision of this Agreement, including the public benefit provisions of Section 5.
Date: , 1995 CITY OF NEWPORT BEACH
0
Mayor
&ate: , 1995 Ford Motor Land Development Corporation
U1
gi \ag \forddev.719
0714951 n1331-002115774.16
23
t
•
EXHIBIT "A"
Legal Description of the Property
Parcel 4 of Parcel Map 79 -717, as shown on Map Recorded in Book 140, Pages 1 through 6 of
Parcel Maps, County of Orange, State of California.
071995 / F31331 -002 136069.1
IN
All
t.
44,
Uf
44,
EXHIBIT "..f."
Approved by the Planning Commission 6/8/95
Approved by the City Council 7/10/95
FINDINGS AND CONDITIONS FOR APPROVAL
ENVIRONMENTAL IMPACT REPORT NO. 153
GENERAL PLAN AMENDMENT 93 -2(A)
• AMENDMENT NO. 800
DEVELOPMENT AGREEMENT NO.8
TENTATIVE MAP OF TRACT NO. 14925
(Ford Land/Newport)
A. Environmental Impact Report No 153
Findings:
That an Environmental Impact Report has been prepared for the project in compliance with the
California Environmental Quality Act (CEQA), the State CEQA Guidelines and City Policy.
2. That the proposed Final EIR, which includes the Draft EIR, Comments and Responses,
revisions to the Draft EIR, and all related documents in the record is complete and adequate to
satisfy all the requirements of CEQA for the proposed project.
3. That the analysis and conclusions contained in the proposed Final EIR reflect the independent
judgment of the Planning Commission.
4. That the Planning Commission has reviewed and considered the information contained in the
isproposed Final EIR prior to making its recommendations to the City Council.
Mitigation Measures:
Short-Term Impacts from Demolition and Construction- related Activiti es. (See Sub - section 3.3.3.1.1
in Impact Analysis)
1. Soil disturbance shall be halted when winds in excess of 25 mph make dust control impractical.
2. To minimize emissions by reducing interference of construction traffic with regional non-
project traffic movement, the following measures shall be implemented where possible:
Scheduling receipt of construction materials to non -peak travel periods.
Exhibit A - Final Findings and Conditions
GPA 93 -2(AyA 800MM 14925/DA 8
Page 1
Routing construction traffic through areas of least impact sensitivity.
Providing ride -share incentives for contractors and subcontractor personnel.
3. To avoid spill-over impacts on neighboring roadways, construction vehicles shall be hosed
down before entering public roadways from any dirt road project areas, or shall be
limited to exiting the site from only paved roads.
4. The project access to public roadways shall be washed/swept at regular intervals to minimize
• dirt impacts on neighboring roadways.
5. Emissions from on -site construction equipment shall be controlled through a routine mandatory
maintenance program
Demolition and Construction - related Noise (see Sub - section 3.4.3.1.1 in Impact Analysis)
A note stating these requirements shall be placed on all demolition, grading and construction plans:
6. No stationary construction equipment shall be permitted to operate in a manner that results in
either:
a. An exterior noise level greater than 55 dBA Leq (daytime) or 50 dBA (nighttime) at the
property line of any occupied residence, or
b. An interior noise level greater than 45 dBA Leq in any occupied residence.
7. Prior to the issuance of any demolition, grading or building permits the project applicant shall
demonstrate that all construction staging shall be performed on -site as far as feasible from
occupied dwelling.
• Remediation Equipment Noise (see Sub - section 3.4.3.1.2 in Impact Analysis)
8. Prior to issuance of any building permit for remediation equipment, the applicant shall submit
to the Building Department a report prepared by a licensed acoustical engineer certifying that
operation of the equipment will not cause an increase in ambient noise of greater than I dBA
nor exceed an exterior noise level of 55 dBA Leq (daytime) or 50 dBA Leq (night time), or an
interior level of 45 dBA Leq, or as set forth in the City's Noise Ordinance.
9. Soil Remediation (see Sub - section 3.6.3.2.1 for Impact Analysis)
Prior to issuance of a grading permit the applicant shall submit evidence acceptable to the
Building Department that the additional investigations and/or remedial activities at APECs
identified in Tables 2 through 8 contained in Appendix I (referred to in section 3.10 —Public
Health and Safety) have been performed and all shallow soil contamination within the plarm ing
Exlubit A - Final Findings and Conditions
GPA 93 -2(AyA 800frrM 14925/DA 8
Page 2
area for that project phase has been remediated to acceptable levels as defined by the Health
Risk Assessment(s) and approved by the OCHCA
10. Demolition Sampling Plan (see Sub - section 3.6.3.2.1 for Impact Analysis)
Prior to the issuance of general grading permits, the project proponent shall submit a Post
Demolition Investigation Work Plan to the City. The plan shall be based on the potential
presence of contaminated soils, and include procedures to be followed to identify contaminated
soil during the subject facility demolition process. This plan shall include a stipulation that
• areas of contaminated soil will not be left uncovered during the rainy season.
11. Remedial Action Plan (see Sub - section 3.6.3.2.2 for Impact Analysis)
Prior to approval of any Final Subdivision Map that would create a legal building site for
residential development, the project proponent shall provide the Newport Beach Planning
Department a Groundwater Remedial Action Plan approved by the Regional Water Quality
Control Board.
Light and Glare (see Sub - section 3.8.3.3 of Impact Analysis)
12. Prior to the issuance of any building permit for any community recreation facility or common
area that includes exterior lighting the applicant shall demonstrate to the Building Department
that the lighting system shall be designed, directed, and maintained in such a manner as to
conceal the light source and to minimize light spillage and glare to the adjacent residential uses.
The plans shall be prepared and signed by a licensed Architect or Electrical Engineer, with a
letter from the Architect or Engineer stating that in his or her opinion, this requirement has
been satisfied.
Screening ofRemediation Systems (see Sub - section 3.8.3.4 of Impact Analysis)
• 13. Prior to issuance of any building permit for a remediation system, the applicant shall
demonstrate to the Planning Department that the screening for the structure
substantially conforms to the illustrations provided in Figure 21 of the EIR For
purposes of this requirement, "interim facilities" shall mean those intended for an
operation period of less than one year, and "long -term facilities" shall mean those
intended for an operation period of one year or more.
Fire Protection (see Sub - section 3.9.3.1 in Impact Analysis)
14. Prior to approval of tract maps or site plans, the project proponent shall make appropriate
Provisions to permit access by the Fire Department at all entry gates.
Extdbit A - Final Findings and Conditions
GPA 93-2(A)IA SOOM -M 14925/DA 9
Page 3
Police (see Sub - section 3.9.3.2 in Impact Analysis)
15. Before approval of any residential building permit, the project proponent shall consult with the
Police Department regarding appropriate crime prevention features in site and building design
and construction.
16. Prior to approval of tract maps or site plans, the project proponent shall make appropriate
provisions to permit access by police at all entry gates.
• 17. Project Demolition
Prior to issuance of any demolition or grading permit a Project Demolition Manual shall be submitted
by the applicant and approved by the Building and Fire Departments. All demolition plans and permits
shall contain a note stating that all work shall be done according to the requirements and specifications
contained in the manual. A copy of the approved manual shall be kept on site at all times and shall be
made available to City inspectors, contractors and employees upon request. The manual shall include
the following components:
a. Removal of Hazardous Substances
The manual shall describe the hazardous substances to be removed prior to demolition of
structures, the cleanup standards to be met, and the procedures to be followed by the
contractor.
b. Health and Safety Plan
The Health and Safety Plan shall be based on the potential presence of hazardous
substances in buildings, equipment and in subsurface soils, and shall outline proper
procedures and safe work practices to ensure the safety and protection of all workers
• involved in the demolition, environmental clean-up and general site activities, as well as
residents of the surrounding area and the general public. The plan shall meet all applicable
federal, state and local requirements.
c. Demolition Sampling Plan
The Demolition Sampling Plan shall be based on the potential presence of contaminated
soils, and include procedures to be followed to identify contaminated soil during the site
demolition process.
d. Air Monitoring and Response Plan
The manual shall include a plan for on -site and perimeter air monitoring to be conducted
during demolition and grading, and a response plan describing remedial actions to be taken
in the event that unacceptable levels of air emissions are detected.
Exldbit A - Final Findings and Conditions
GPA 93-2(A)IA 800MM 149251DA 8
Page 4
18. Pre - Demolition Building Certification
Prior to the issuance of a demolition permit for each building, the project proponent shall demonstrate
to the Building Department that all pre - demolition clean -up has been completed in compliance with the
Project Demolition Manual. This certification shall include the following:
a. Removal of Hazardous Substances
• The applicant shall demonstrate that hazardous substance removal has been completed in
accordance with the Project Demolition Manual.
19. Soil Remediation
Prior to issuance of a grading permit the applicant shall submit evidence acceptable to the Building
Department (m coordination with the Planning Department) that the additional investigations and/or
remedial activities at APECs identified in Tables 2 through 8 contained in Appendix I have been
performed and all shallow soil contamination within the planning area for that project phase has been
remediated to acceptable levels as defined by the Health Risk Assessment(s) and approved by the
OCHCA
20. Remedial Action Plan
Prior to approval of any Final Subdivision Map that would create a legal building site for residential
development, the project proponent shall provide to the Newport Beach Planning Department a
Groundwater Remedial Action Plan approved by the Regional Water Quality Control Board.
21. Pre- Development Health Risk Assessments
Prior to approval of any Final Subdivision Map that would create a legal building site for residential
• development, the project proponent shall submit to the Planning Department an OCHCA- approved
Health Risk Assessment(s) and Health -Based Cleanup Levels (HBBCLs) demonstrating that all potential
health risks associated with soil and groundwater contamination will be eliminated prior to residential
construction. Health Risk Assessment(s) shall include both construction worker and residential
scenarios. Concurrent with submittal to OCHCA, the applicant shall provide all data and reports in
support ofthe Health Risk Assessment to the City for its independent review and analysis.
Prior to issuance of any residential building permit the applicant shall demonstrate that either: 1) all
appropriate remedial actions have been completed to the satisfaction of OCHCA and RWQCB; or 2)
any remedial actions that continue after commencement of residential construction have been
determined by OCHCA to have no health risk to occupants.
Ex1u'bit A - Final Findings and Conditions
GPA 93 -2(AyA 8OOMM 14925/DA 8
Page 5
22. Post - Development Health Risk Assessments
Prior to issuance of a building permit for any remedial action that would remain in operation after
commencement of residential development and may involve air emissions, the proponent shall provide
the Building Department with a copy of the air permit issued by the South Coast Air Quality
Management District ( SCAQMD). SCAQMD uses risk assessment data to establish allowable air
emissions which are stipulated in the permit conditions.
23. City Monitoring of Closure, Demolition and Remediation Activities
• Prior to issuance of any demolition or grading permit the City shall select and retain a qualified
hazardous materials consultant to monitor and verify compliance with all adopted mitigation measures
related to site closure, demolition, remediation and health risk assessment activities, with the cost of
this consultant to be paid by the applicant. Both the consultant and the consultant's scope of work
shall be acceptable to both the City and Ford.
The applicant shall provide to the City or its designee in a timely fashion copies of all written
correspondence with the OCHCA, RWQCB, and any other agency involved in review and approval of
soil and groundwater remediation of the site.
B General Plan Amendment 93 -2(A)
Adopt Resolution No. 1393 recommending City Council approval of GPA 93 -2(A).
C. Amendment No. 800
Adopt Resolution No. 1394 recommending City Council approval of Amendment No. 800.
• D Development Agreement No 8
Adopt Resolution No. 1395 recommending City Council approval of Development Agreement
No. 8.
In addition, the Planning Commission recommends that the following provisions be incorporated
into the Development Agreement:
1. That as a public benefit, Ford Motor Land shall pay the cost of a traffic study evaluating
potential solutions to the problem of through traffic from the Bison Avenue entrance in the
Eastbluff neighborhood, and shall also pay the cost of implementing a solution agreed
upon by the City and the Eastbluff community with the stipulation that if a solution other
than the four possibilities outlined by the City Traffic Engineer is adopted, Ford's financial
obligation shall not exceed the cost of the most expensive of those four solutions; and
Exhibit A - Final Findings and Conditions
GPA 93-2(A)IA 800fr M 14925/DA 8
Page 6
2. That the Development Agreement reflect all of the conditions and mitigation measures
contained in the EK and
That the City Council consider including in the Development Agreement a provision for
indemnifying the City from liability related to contamination of the site.
E. Tentative Map of Tract No. 14925•
• Findings:
That the subdivision, together with the provisions for its design and improvement, is
consistent with the General Plan and its objectives, policies, general land uses and programs,
and the Aeronutronic Ford Planned Community Development Plan and District Regulations.
2. That the site is physically suitable for the type of development proposed.
3. That the site is physically suitable. for the density of development proposed.
4. That the design of the subdivision and proposed improvements are not likely to cause
substantial environmental damage or substantially and avoidably injure fish or wildlife or their
habitat.
5. That the design of the subdivision is not likely to cause serious public health problems.
6. That the design of the subdivision improvements will not conflict with any casements acquired
by the public at large for access through or use of property within the proposed subdivision.
7. That public improvements may be required of a developer per Section 19.08.020 of the
• Municipal Code and Section 66415 of the Subdivision Map Act.
Conditions:
That a final map be recorded. That the final neap be prepared so that the Bearings relate
to the State Plane Coordinate System. The final map shall be prepared on the California
coordinate system (NAD83) and that prior to recordation of the final map, the
surveyor /engineer preparing the map shall submit to the County Surveyor a digital - graphic
file of said map in a manner described in Section 7 -9 -330 and 7 -9 -337 of the Orange
County Subdivision Code and Orange County Subdivision Manual, Subarticle 18. That
prior to recordation of the final map, the surveyor /engineer preparing the map shall tie the
boundary of the map into the Horizontal Control System established by the County
Surveyor in a manner described in Section s 7 -9 -330 and 7 -9 -337 of the Orange County
Subdivision Code and Orange County Subdivision Manual, Subarticle 18. Monuments
Exhibit A - Final Findings and Conditions
GPA 93 -2(AYA 800MM 14925/DA 8
Page 7
(one inch iron pipe with tag) shall be set On Each Lot Comer unless otherwise approved
by the Subdivision Engineer. Monuments shall be protected in place if installed prior to
completion of construction project.
2. That all improvements be constructed as required by Ordinance and the Public Works
Department.
3. That a standard subdivision agreement and accompanying surety be provided in order to
guarantee satisfactory completion of the Public improvements if it is desired to record a
• tract map or obtain a building permit prior to completion of the public improvements.
4. That each dwelling unit be served with an individual water service and sewer lateral
connection to the public water and sewer systems unless otherwise approved by the Public
Works Department and the Building Department.
•
5. That the on -site parking, vehicular circulation and pedestrian circulation systems be
subject to further review by the Traffic Engineer.
6. That the design of the private streets and drives conform with the City's Private Street
Policy (L-4), except as approved by the Public Works Department. The basic roadway
width shall be a minimum of 36 feet with parking on both sides. That the collector ring
road shall have a minimum width of 40' curb to curb. That the cul -de -sacs shall be
designed to conform to minimum City standards as shown in City Std. 103 -L with planters
or other designs as approved by the Public Works Department and Fire Department. That
all bends in roadway shall be designed using the City standard knuckle Standard No. 104 -
L or other designs as approved by the Public Works Department to provide an adequate
turning radius for moving vans and fire trucks. That all street curb returns shall have a
minimum radius of 25'. That the location of all underground utilities in the private streets
shall conform to City Std. 101 -L. That a minimum centerline radius for private streets
shall be 150', unless otherwise approved by the Public Works Department. The location,
width, configuration, and concept of the private street and drive systems shall be subject
to further review and approval by the City Traffic Engineer.
7. That an Encroachment Agreement be executed for all non - standard paving improvements
proposed in private streets and utility easements.
8. That the intersection of the private streets and drives be designed to provide sight distance
for a speed of 25 miles per hour. Slopes, landscape, walls and other obstruction shall be
considered in the sight distance requirements. Landscaping within the sight line shall not
exceed twenty-four inches in height. The sight distance requirement may be modified at
non - critical locations, subject to approval of the Traffic Engineer, and trees with canopies
above 8 feet will be considered.
Exhibit A - Final Findings and Conditions
GPA 93 -2(AYA 800MM 14925/13A 8
Page 8
9. That easements for ingress and egress be provided for all lots that do not have frontage
along the private street system unless otherwise approved by the Public Works
Department.
10. That the California Vehicle Code be enforced on the private streets and drives, and that
the delineation acceptable to the Police Department and Public Works Department be
provided along the sidelines of the private streets and drives.
11. That if it is desired to have a control gate at the entrance, a turnaround shall be provided
• prior to the gate. The gated entry shall have a minimum of two lanes in (one for visitors
and one for owners). The guard gate shall be positioned so that a minimum of 80' is
provided for automobile stacking. The design of the controlled entrance shall be reviewed
and approved by the Public Works Department and Fire Department.
12. That easements for public emergency and security ingress, egress and public utility
purposes on all private streets be dedicated to the City and that all easements be shown on
the tract map.
13. That asphalt or concrete access roads shall be provided to all public utilities, vaults,
manholes, and junction structure locations, with width to be approved by the Public
Works Department.
14. That all vehicular access rights to Jamboree Road be released and relinquished to the City
of Newport Beach.
15. That the following improvements be completed:
a. On Jamboree Road: That the left turn lane and traffic signal be removed at the
Ford -Loral entrance. This will require the construction of a median island and
landscaping, removal of the north bound deceleration lane into Ford -Loral which
• will require the construction of new curb, gutter and sidewalk improvements along
a portion of the Jamboree Road frontage and possible installation of additional
street lighting where the traffic signal was removed as approved by the Public
Works Department.
b. On Ford Road: That the unused drive aprons be removed and replaced with curb,
gutter and sidewalk, and that the unused left turn lane be removed and replace with
a median island and landscaping as approved by the Public Works Department.
C. That deteriorated or displaced sections of sidewalk be reconstructed along the
Jamboree Road and Ford Road frontages.
That all work be completed under an encroachment permit issued by the Public Works
Department.
Exhibit A - Final Findings and Conditions
GPA 93 -2(AYA 800MM 14925/DA 8
Page 9
16. That street, drainage and utility improvements be shown of standard improvement plans
prepared by a licensed civil engineer.
17. That a hydrology and hydraulic study be prepared by the applicant and approved by the
Public Works Department, along with a master plan of water, sewer and storm drain
facilities for the on -site improvements prior to recording of the tract map. Any
modifications or extensions to the existing storm drain, water and sewer systems shown to
be required by the study shall be the responsibility of the developer.
• 18. That the drainage from the slopes adjacent to Jamboree Road and Ford Road be picked up
in concrete drainage swales and conveyed to the storm dram unless otherwise approved by
the Public Works Department.
19, That the drainage along the northerly tract boundary adjacent to Hartford Drive and
Hillsdale Drive be directed away from tract boundaries and conveyed to the storm drain
system.
20. That the Water Capital Improvement fee be paid, unless otherwise modified or waived by
the City Council.
21. That prior to issuance of any grading or building permits for the site, the applicant shall
demonstrate to the satisfaction of the Public Works Department and the Planning
Department that adequate sewer facilities will be available for the project. Such
demonstration shall include verification from the Orange County Sanitation District and
the City s Utilities Department.
22. That County Sanitation District fees be paid prior to issuance of any building permits.
23. That the Public Works Department plan check and inspection fee be paid.
• 24. Disruption caused by construction work along roadways and by movement of construction
vehicles shall be minimized by proper use of traffic control equipment and flagmen.
Traffic control and transportation of equipment and materials shall be conducted in
accordance with state and local requirements. There shall be no construction storage or
delivery of materials within the Jamboree Road, Bison Avenue or Ford Road rights -of-
way.
25. That a fire protection system acceptable to the Fire Department be installed by the
developer and tested by the Fire Department prior to storage of any combustible materials
or start of any structural framing.
26. That this map is for financing and conveyance purposes only, and no legal residential
building sites shall be created until subsequent subdivision maps are approved and
recorded. Building permits for non - residential structures (e.g., recreation facilities and
Exhibit A - Final Findings and Conditions
GPA 93 -2(AyA 800M -M 14925/DA 8
Page 10
guard gate entrances) may be issued upon recordation of this map and satisfaction of all
applicable requirements, however.
27. That all lettered lots shall be privately owned, landscaped and maintained.
28. Prior to recordation of any final map the subdivider shall submit a street naming program
for approval by the Planning Commission.
• F:\ WINDOWS\ PLANNING \\JOHN- D\FORD\FC\F &C- FINL.DOC
Fabibit A - Final. Findings and Conditions
GPA 93 -2(AyA 8WnW 14925/DA S
Page 11
•
•
1*3011: Ymno
Estoppel Certificate
Date Requested:
Date of Certificate:
On July 24, 1995, the City of Newport Beach (the "City") approved City Development
Agreement No. 8 (the "Agreement ") entitled "Development Agreement between the City of
Newport Beach and Ford Motor Land Development Corporation." Within this Estoppel
Certificate, Ford Motor Land Development Corporation shall be referred to as "Owner."
This Estoppel Certificate certifies that, to the best of the City's knowledge as of the "Date of
Certificate" set forth above:
(CHECK WHERE APPLICABLEI
1. The Development Agreement remains binding and
effective;
2. The Development Agreement has not been amended;
3. The Development Agreement has been amended in the
following aspects:
4. Neither Owner nor any of its successors is in
default under the Development Agreement;
071995 / F31331 -002 / 36069.1
5. The following defaults exist under the Development
Agreement:
•
This Estoppel Certificate may be relied upon by any transferee or mortgagee of any interest in
the property which is the subject of the Development Agreement.
•
071995 1 F31331 -M 1 36069.1
CITY OF NEWPORT BEACH