HomeMy WebLinkAbout96-26 - Adopting the First Amendment to Development Agreement No. 8 Between the City of Newport Beach and the Ford Motor Land Development Corporation with Respect to the Ford Land/Newport Project•
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ORDINANCE NO. 96-26
AN ORDINANCE OF THE CITY OF NEWPORT BEACH
ADOPTING THE FIRST AMENDMENT TO DEVELOPMENT
AGREEMENT NO. 8 BETWEEN THE CITY OF NEWPORT
BEACH AND THE FORD MOTOR LAND DEVELOPMENT
CORPORATION WITH RESPECT TO THE FORD
LAND/NEWPORT PROJECT
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 amendment of development agreements; and
C. The First Amendment to 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 First Amendment to Development Agreement
No. 8; and
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g. The City Council finds that the amendment to Development Agreement No.
8 is in compliance with the California Environmental Quality Act and Guidelines promulgated
thereunder; and
h. The City Council finds that the amendment to Development Agreement No.
8 is in conformance with the Newport Beach General Plan.
isSECTION 2. The First Amendment to Development Agreement No. 8 is hereby
adopted and made a part hereof by this reference.
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.
SECTION 4. This Ordinance shall be published once in the official newspaper of
the City, and the same shall be effective thirty (3 0) 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 8th day of July 1996, and was adopted on the 2 2nd day
of I u 1 Y, 1996, by the following vote, to wit:
• AYES, COUNCIL MEMBERS HEDGES, DEBAY,
GLOVER, EDWARDS, WATT, O'NEIL, COX
ATTEST:
CITY CLERK
F: \W P51 \PLANNING\ I CC- RM\CC960708\ I DA8- ORD.DOC
NOES, COUNCIL MEMBERS NONE
ABSENT COUNCIL MEMBERS NONE
MAYOR
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Recording Requested By and
When Recorded Return to:
City Clerk
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92660
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062596/058 ! F313314102 f 13774.22
FIRST AMENDED DEVELOPP&ENT AGREEMENT
BETWEEN
THE CITY OF NEWPORT BEACH
ME
PACIFIC BAY HOMES
Original Agreement Approved July 24, 1995
Ordinance No. 95 -27
Amendment Approved . 1996
Ordinance No. 96-_
Submitted By:
Paone Callahan McHolm & Winton
19100 Von Karman Avenue
8th Floor
P.O. Box 19613
Irvine, CA 92713 -9613
FIRST AMENDED DEVELOPMENT AGREEMENT
THIS FIRSTAMENDED DEVELOPMENT AGREEMENT (the "Agreement ") is entered into between the
City of Newport Beach (the "City "), and Pacific Bay Homes, a California corporation and a subsidiary
of the Ford Motor Company.
• 1. R.ECTTALS. This Agreement relates to the following:
1.1 Original Agreement. On July 10, 1995, the City Council of the City approved the
"Development Agreement between the City of Newport Beach and Ford Motor Land
Development Corporation" (the "Original Agreement"). The Original Agreement was
recorded in the official records of the County of Orange on September 16, 1995.
1.2 Ownership Status. At the time of the Original Agreement, Ford Motor Land Development
Corporation ( "Ford Land ") held an equitable interest in the property which is described in
Exhibit A (the "Property "). Ford Land is a subsidiary of Ford Motor Company. In April
1996, The JMDevelopment Company ( "JM "), also a subsidiary of Ford, acquired fee title
to the Property. Since the acquisition, JAI has changed its name to Pacific Bay Homes.
Pacific Bay Homes shall be referred to within this Agreement as "Ford. "
1.3 Planning Status. The City Council conducted public hearings on these matters and the
Original Agreement and certified the EIR on July 10, 1995. The General Plat Amendment
(see Section 2.22 below), the Original PC Text Amendments (see Section 2.29 below), the
Tentative Map (see Section 2.34 below), and the Original Agreement were approved on July
10. 1995. Since the approval of the Original Agreement, site planning has continued for
the Property. As a result of that planning, Ford has proposed certain changes to the
• Planned Community District Regulations (the "PC Text ") which also will resuk in changes
to the Tentative Map. In addition to the .stated purposes of the Original Agreement, this
Agreement intends to make those modifications to the Original Agreement which will allow
the development of the Property (the ",Project ") to proceed consistent -4*h approved
modifications to the PC Text and the Tentative Map.
1.4 General Findings. By approving this Agreement, the City Council finds that the
modifications to the PC Text and this Agreement, when implemented through subsequent
entitlement procedures, such as the subdivision mapping process, are consistent with the
intent of the City Council in approving the Original Agreement.
1.5 CM Compliance. On July 10, 1995, the City Council certified Environmental Impact
Report No. 153 for the Project (the "EIR "). All significant environmental concerns for the
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proposed Project have been addressed in that previously certified Environmental Impact
Report (SCII X94011022), and the City of iVewport Beach intends to use that report for the
Project under consideration, and there are no reasonable alternadves or mitigation measures
that should be considered in conjunction with the Project.
1.6 Effect of Original Agreement. This Agreement is intended to modify the Original
Agreement. The provisions of this Agreement which modify the Original Agreement are the
only provisions intended to be modified. The use of a single document called an "amended
agreement, " rather than the use of a list of modifications or amendments to be used in
• comparison to the Original Agreement, is intended to simplify future reference to this
Agreement. The Effective Date of this Agreement remains the original Effective Date of
the Original Agreement, August 23, 1995. The Approval Date remains July 10, 1995.
1.7 Effective Date of Modifications. The provrsions of this Agreement which represent actrtal
changes from the Original Agreement shall become effective on the effective date of the
ordinance approving this Agreement.
1.8 Purpose of Agreement. This Agreement restates the intent of the Original Agreement as
follows:
a. Provide for the orderly transition of the land use or 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, ',cation, and timing to minimise,
to the extent reasonably feasible, any significant adverse impacts of Ford's proposed
residential development on the environment.
C. Provide the City with greater certainty that the ^roject 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 norm -U mitigation requirements in the
form of (1) substantial financial assistance from Ford in resolving a long- standing
traffic circulation issue in the Eastbluff commtcry, (2) financing by Ford of
extraordinary environmental monitoring of site remediation, and (3) the provision of
assurances by Ford with respect to the funding and e: provision of affordable housing
units within the City.
1.9 Authorization. This Agreement is authorized by, and is consistent with, the provisions of
65864 et seq. of the Government Code of the State of Calrornia, and Chapter 15.45 of the
Newport Beach Municipal Code.
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1.10 Interest of Ford. Ford is the legal owner of approximately 98.1 acres of real property located
in the City and more particularly described in Exhibit "A" (the "Property").
1.11 Development of the Property. Subject to those conditions and mitigation measures identified
in Environmental Impact Report No. 153 for Ford band Newport (the "EIR ") which were
imposed by the City Council as conditions to approval of all or part of the Development Plan.
this Agreement authorizes development on the Property consistent with the Development
Plan.
is 1.12 Condition of Site. At the time of the Original Agreement, the Property was occupied by
buildings constructed over the last thim years to house research, design, and industrial types
of uses. Since the Approval Date and as part of the Development Plan, Ford has
demolished the existing structures. Additionally, prior activities on the site have resulted in
soil and groundwater contamination. Efforts to remediate these conditions, which would
have been made by Ford with or without this Agreement, have moved substantially and
positively forward since the Approval Date,.
1.13 Proiect 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 puns 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.
1.14 Planning Commission /City Council Hearin m- This Agreement. The Planning Commission,
• after giving appropriate notice, held public hearings to consider this Agreement and the
newly proposed PC Text amendments (see Section 2.29 below) on . 1996. The City
Council conducted public hearings on the proposed PC Text amendments and this
Agreement on 1996.
1.15 Consistency_ Like the Original Agreement, 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. Also Uke the Original Agreement, this
Agreement is also consistent with the purpose and intent of state and local laws authorizing
development agreements in that it represents Ford's commitment to comprehensive planning,
provides certainty in the approval of subsequent projects subject to compliance with
conditions, reduces the economic cost of development by providing assurance to Ford that
it may proceed with projects in accordance with existing regulations, and provides assurance
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to adjoining property owners that limits on the height of structures and amount of
development as specified in the Development Plan.
1.16 Police Power. As it did with the Original Agreement, 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 approved in accordance with the provisions of state and
local law that establish procedures for the approval of development agreements.
• 1.17 City Ordinance. On July 10, 1995, the City Council approved the Original Agreement and
conducted the fast reading of Ordinance No. 95 -27 approving and authorizing the City to
enter into the Original Agreement. On July 24, 1995, the City Council completed adoption
of the Adopting Ordinance. The Adopting Ordinance became effective on August 23, 1995.
On . 1996, the City Council approved this Agreement and conducted the first
reading of Ordinance No. 96 -_ approving and authorizing the City to enter into this
Agreement. On . 1996, the City Council completed adoption of this ordinance.
2. DEFINITIONS.
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 "First Amended Development Agreement Between the City of
Newport Beach and Pacific Bay Homes. " The Agreement is also identified by the City as
the City's Development Agreement No. S.
2.3 "Annual Review" refers to the review of Ford's good faith compliance with this Agreement
as set forth in Section 6.
• 2.4 The "Annroval Date" means July 10, 199'i, the date on which the City Council voted to
approve the Original Agreement and the prior Development Plan.
2.5 All forms of use of the verb "assi " 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 "Gifu" refers to the City of Newport Beach, California.
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2.8 "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.
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 Default" refers
• to a default by Ford.
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 (see Section 2.24), (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. The Effective Date is August 23, 1995.
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.
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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" refers to Pacific Bay Homes, a subsidiary of Ford Motor Company.
2.21 "Future General Regulations" means those General Regulations (see Section 2.23 below)
adopted by the City after the Approval Date:.
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. "General Plan" also shall include any general plan amendments
affecting the Property or the Project which are adopted by the City and consented to, in
writing, by Ford.
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 79re "Orit!rnal Agreement" refers to the Development Agreement for the Project which was
approved on July 10, 1995, and recorded! on September 26, 1995. This Agreement
modifies the Original Agreement.
2.29 The "Original PC Text Amendment" refers only to the "Aeronutronic Ford Planned
Community District Regulation" as amended by the City Council on July 10, 1995.
2.30 The "Parties" refers to the City and Ford and a "Party" shall refer to either of the Parties.
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2.31 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,
and all subsequent modifications of the PC Text which are approved by the City Council
and Ford.
2.32 "Planning Commission" refers to the Planning Commission of the City.
2.33 The "Proiect" refers to the proposed development of the Property pursuant to the
Development Plan and this Agreement.
2.34 The "Property" refers to the real property described on Exhibit "A" and depicted on
Exhibit "B."
2.35 The "Tentative Man" refers to the tentative tract map for Tract No. 14925 approved by the
City Council on July 10, 1995, and any subdivision map approved by the City Council after
the Approval Date which substantially conforms with the PC Text at the time of the map's
approval. If a subsequent subdivision map (or maps) replaces or supersedes TIM No.
14925, the new map(s) shall be considered the Tentative Map which is included within the
Development Plan.
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's right to proceed with the development described
in the Development Plan. Ford 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
sienificant effects identified in the EIR;
(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 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
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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. 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 agrees to be bound
by and waives any protest 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 Re lug ations. Ford 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 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 shall also
comply with all provisions of the Uniform Building Code, whether adopted before or after
the Approval Date, which are in effect at the time applications for specific development
permits are submitted.
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 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) imposing conditions inconsistent
with the Development Plan on future discretionary approvals, where such actions directly
result from 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
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Plan until the City Council makes a finding that such action is the only reasonably
necessary means to correct or avoid such injurious or detrimental condition.
b. Any such action taken pursuant to this Section shall apply only to the extent and for
the duration necessary to correct or avoid such injurious or detrimental 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 has complied
As with Mitigation Measures 4, 5, and 6 set forth in Section 3.10 (Public Health and Safety) of
the EIR.
4. BENEFITS TO FORD.
4.1 Right to Develoy. During the term of this Agreement and subject to the provisions of
Sections 3 and 5, Ford shall have a vested right to develop and receive occupancy permits
for construction on the Property to the full extent permitted by the Development Plan,
including grading of the site as contemplated by the elevations shown on the Tentative Map,
subject to: (a) compliance with CEQA, (b) the terms and conditions of this Agreement, (c)
the City's grading ordinance in effect on the Approval Date, and (d) compliance with
conditions imposed on any subdivision map submitted by Ford subsequent to the Effective
Date, provided that the City may only impose subdivision map conditions which are (i)
necessary to mitigate any significant adverse impact not identified in the EIR, (ii) necessary
to ensure compliance with the subdivision design and improvement standards of the City in
effect on the Approval Date, or (iii) necessary to make the findings required by the
Subdivision Map Act. Subject to the provisions of this subsection and Sections 3 and 5, City
shall only take action which complies with and is consistent with the Development Plan and
this Agreement unless Ford otherwise consents in writing. City shall not impose any
condition or requirement (whether in the form of a fee, tax, requirement for dedication or
reservation of land, or any other type of exaction) on the Project, except as expressly
• permitted by this Agreement or required (as opposed to permitted) by state 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 restricts 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 in conjunction with the
application or issuance of any permit authorizing development, construction, use, or operation
of the Property.
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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 in the amount of $3,436,966 in relation to the
construction of the San Joaquin Hills Transportation Corridor. This credit shall be applied
toward any Project fees otherwise payable to the City, the Transportation Corridor Agencies,
or any other agency in connection with the construction of the San Joaquin Hills
Transportation Corridor or any other transportation corridor for which fees are imposed upon
development.
• If (i) this credit is larger than the Project's corridor fee obligation and (ii) Ford and the TCA
enter into an agreement to allow Ford to sell or transfer any credits in excess of the Projects
fee obligation, then the City shall not object to the sale or transfer of the credits on the terms
set forth in that Ford/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" Trah is 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 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. The Project shall comply with all City park requirements through the payment
of park fees in the amount of $6,897.37 per residential unit. Ford 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
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 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 approval's, at any time.
4.10 Extension of Tentative Man. 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
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Map (see Section 2.33 above) and all tentative subdiNision maps applied for by Ford approved
by the City in the future.
4.11 Phased Final Mans. As many as forty phased final cps may be filed for each tentative tract
map approved for the Project.
4.12 Development Standards. 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 rot 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 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. Excect as set forth in Section 4.8 above, the
rates of such fees, taxes, and assessments shall be tle rates in existence at the time said fees,
taxes, and assessments are normally required to be raid to the City.
5. PUBLIC BENEFITS.
5.1 Reduced Impacts. This Agreement confers a subs--antial public benefit by converting an
existing commercial /industrial use to a less intense ;--sidential use. The EIR for the Project
has established specific improvement in environmenr?l conditions related to reduced potential
for impacts arising from traffic, air pollution, the consumption of non - renewable energy
resources, the potential for groundwater pollution, _.d 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 bas�d 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 housing ( "Affordable
Units "). The Housing Element requires residential, developers to provide affordable units,
either on -site or off -site, with the number of units cotangent 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 p %act. The Housing Element specifically
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encourages the use of development agreement and expedited permitting to encourage the
construction and occupancy of affordable housing projects. The City and Ford agree that
this development presents a unique opportunity, possibly in combination with a Development
Agreement between the City and one or more other developers, to construct affordable
housing on vacant sites within the City using a unique public /private planning and financing
process outlined in this Section:
a. Affordable Housing Percentage. The Housing Element requires projects such as this
to provide, to the extent feasible, units affordable to moderate income families and
• individuals equal in number to between 15'% and 25% of the market rates units
produced by the project These units are to be provided for a minimum of twenty
years. The City and Ford agree that the cost and delay attendant to environmental
remediation of the Property, Ford's agreement to advance park fees, and the other
public benefits provided by Ford 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. The Original Agreement contained a
requirement for Ford to satisfy its ajfordable housing requirements by participating
in a "Task Team° to be established by resolution of the City Council to identify,
evaluate, and implement one or more affordable housing projects to implement
Ford's affordable housing obligations under, this Section. Since the Approval Date,
Ford has actively participated in the Task Team, which is implementing its original
goals as set forth in the Original Agreement. The requirement contained in the
Original Agreement remains in place and reads as follows:
"b. Task Team Participation / In Lieu Fees. Ford shall satisfy its affordable
housing requirements by par iicipating, in a "Task Team" to be established by
resolution of the City Council to identify, evaluate, and implement one or
more affordable housing projects to implement Ford 's affordable housing
• obligations under this Section. The Task Team shall consist, at a minimum,
of a member of the City Council, a representative of Ford , 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 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. The Task Team shall report to the City Council no less than
OUS96 -ION / F31-2I = 1 157111]
12
•
•
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. If a project is
identified and implemented, Ford shall contribute $2,500,000 (less $5,000 for
each of the 500 units allowed by the Development Plan which Ford agrees, in
writing, not to build) toward the implementation of that project. Subject to
Ford's ongoing participation in Task Team implementation efforts, payment
of this sum will satisfy Ford's affordable housing obligations.
"c. Option If No Task Team Project. If either (i) the City Council does not
require Ford 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's
affordable housing requirement, then Ford 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 offsite 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:
o $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.
Under this option, Ford's affordable housing in lieu fee shall not be less than
twenty percent of its total financial commitment."
5.4 Environmental Monitoring. Due to existing soil and groundwater contamination on the
Project site, before residential occupancy can occur on the site, Ford is required by law, as
062596610521 F31331-CM/ 15774.12
13
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 also will pay for
the cost of an environmental monitor to be retained by the City to review all Ford submittals
to those agencies. Ford shall provide the monitor with copies of all submittals concurrently
with their delivery to those agencies.
Additionally, if requested by the monitor, Ford shall provide to the City the underlying data
which supports Ford's request to County Health for a Health Risk Assessment of 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 analysis and conclusions
and correspond, if needed, to County Health before its final action. The monitor shall not
perform any independent collection of data. The monitor performing this function may be
the same 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, in turn, may 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.
Any inconsistency between this provision and any mitigation measure for the Project shall be
resolved in favor of the mitigation measure.
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 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 to correct the existing problem. Pursuant to this Agreement,
however, Ford shall contribute to the solution to the existing traffic problem as follows:
a. The determination of a solution shall be dependent upon an agreement between the
Eastbluff community and the City.
b. If the "solution" costs $50,000 or less:
L Ford 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:
azs96-109 i F3MI-02 + imasz
14
L Ford 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.
C. Ford will not be required to make a deposit of funds until a "solution" actually is
approved by the City for implementation. Any funds actually deposited but not used
to implement the solution shall be returned to Ford.
d. If the City and the Eastbluff community have not agreed on a "solution" within one
• year from the Effective Date and the date for agreement has not been extended by
Ford, this obligation shall terminate.
e. If a lawsuit is brought by any person or entity challenging any of the Ford approvals
on the basis of the Eastbluff traffic conditions and that lawsuit is not terminated within
thirty days after service, the provision requiring Ford'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 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;
I The Master Association shall routinely maintain the onsite 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.
5.7 Belcourt Terrace Landscape Screen. This Agreement as originally recorded on September
26, 1995, contained a Section 5.7 which imposed certain obligations upon Ford with respect
to the establishment of a landscape screen along the boundary of the Property and the
Belcourt Terrace project adjacent to the Hillsdale Drive boundary wall. Since the recording
of the Agreement, that condition has been satisfied by the signing of a Landscape Screening
0625961058 7 F31331 1577423
15
Agreement between Ford and the Belcourt Terrace Homeowners Association (the
"Association "). "
6. ANNUAL REVIEW
6.1 City and Ford Responsibilities. At least every twelve (12) months during the Term, the City
shall review Ford'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
shall be conclusive for the purposes of fuvare Annual Reviews or legal action between the
• Parties. Either Patty 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 ithe 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 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. The City shall mail to Ford 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 shall be found in compliance with this Agreement unless the City Council determines,
based upon the evidence presented at the Annual Review, that Ford 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 is found to be in compliance with the
Agreement after the Annual Review, the City shall issue, within ten (10) days of
Ford's written request, a letter to Ford stating that the Agreement remains in effect
and Ford is not in Default.
b. After Cure of Default. If Ford 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's written request, a
letter to Ford stating that the Agreement remains in effect and Ford is not in Default.
06259&10581 F31331.= i 15n4.32
16
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 Parry'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's Default.
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 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 owns any part of the Property, Ford 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 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
as to Ford or any assignees not in Default, the Default shall not constitute their Default, give
06259610581 F31331 -M 115774.22
17
grounds for termination of their rights under this Agreement or be a basis for an enforcement
action against them.
Under no circumstances, shall Ford be relieved of its obligations under Sections 5.3, 5.4,
5.5, and 5.6.
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 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
of its obligations under Sections 5.3, 5.4, 5.5, and 5.6 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.
062596-1058 / F31331 -OM t 13776X!
18
L
•
•9
CONFLICTS OF LAW.
8.1 Conflict with State and Federal Laws anti Reeulations. 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 consents in writing to the modification.
Ford shall have the right to seek judicial review of any proposed modification to ensure
compliance with this Section.
DEFAULT, REMEDIES AND 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 Party must give the defaulting Parry a Notice of intent
to terminate the Agreement if that Party intends to terminate the Agreement. Within thirty
062596-1058 / F31331 -M / 15774.32
19
0
•
(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.
9.3 Notice of Termination. After the City Council hearing described in Section 9.2, the Parry
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 clear and convincing evidence was
presented to the City Council to establish 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. Subject to and after termination of this Agreement in compliance with
Sections 9.1 through 9.3, if Ford Defaults, the City shall have no obligation to perform any
of City's obligations under this Agreement (as opposed to the City's obligations under the
Development Plan and the General Regulations), unless otherwise ordered by a court of law.
The City's election not to perform as permitted by this provision shall not constitute a
Default.
9.6 Default by the City. Subject to and after termination of this Agreement in compliance with
Sections 9.1 through 9.3, if the City Defaults, Ford shall have no obligation to perform any
of Ford's obligations under this Agreement, unless otherwise ordered by a court of law.
Ford's election not to perform as permitted by this provision shall not constitute a Default.
9.7 Spgcifrc 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
under this Agreement and does not limit the remedies of either Parry under any other
provision of law.
06259&:_48 / F31331 -M / 15"4M
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10. ENCUMBRANCES AND RELEASES ON PROPERTY.
10.1 Discretion to Encumber. Ford 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 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 Default at the same time Ford 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 Clerk
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92660
Attention: City Attorney
Attention: Planning Director
To Ford : Pacific Bay homes
Attn: Karin T. Krogius
18400 Von Karman, Suite 900
Irvine, California 92715
06259510561 FKri -O 2 / 15n4M
21
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 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, fires, 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.
11.6 Incorporation of Recitals. The Recitals set forth in Section I 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.
062596/058 / P31331 -M / 15m.22
22
11.8 Covenant of Cooperation. The City shall help Ford 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 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 warrants and
represents that he /she has the authority to do so and the authority to bind Ford to the
performance of Ford'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.
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
06ZW1059 / M1331-OM / 15714M
23
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 Parry 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: . 1996 CITY OF NEWPORT BEACH
Date: , 1996
061596 -1058 / F31331 -M 115774,22
2
Mayor
PACIFIC BAY HOMES
:a
FZI!