HomeMy WebLinkAbout97-22 - Adopting a Development Agreement Between the City of Newport Beach and the Newport Harbor Lutheran Church. (Development Agreement No. 10)• ORDINANCE NO. 97 -22
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
NEWPORT BEACH ADOPTING A DEVELOPMENT
AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH
AND THE NEWPORT HARBOR LUTHERAN CHURCH.
(Development Agreement No. 10)
The City Council of the City of Newport Beach DOES HEREBY 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 proj ect 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
•
Ord 97 -22
• e. Development Agreement No. 10 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 Planning Commission to consider Development AgreementNo. 10; and
g. The Planning Commission finds that Development Agreement No. 10 is in
compliance with the California Environmental Quality Act and Guidelines promulgated thereunder;
and
h. The Planning Commission finds that said Development Agreement No. 10 is in
conformance with the Newport Beach General Plan, as proposed by accompanying General Plan
AmendmentNo. 95 -2 (E); and
• i. The adoption of the Development Agreement will not preclude the City from
conducting future discretionary reviews in connection with the project, nor would it prevent the
City from imposing conditions or requirements to mitigate significant impacts identified in such
reviews provided that the measures do not render the project infeasible.
SECTION2. Development Agreement No. 10 (Ordinance No. 97 -22 ) 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 the Planning Department of the City of Newport Beach.
SECTION 4. The Mayor shall sign and the City Council shall attest to the passage
of this Ordinance. This Ordinance shall be published once in the official newspaper of the City,
• and the same shall become effective thirty (3 0) days after the date of its adoption.
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ord 97 -22
• SECTION 5. This Ordinance was introduced at a regular meeting of the City
Council of the City of Newport Beach held on the 9th day of June 1997, and was
•
•
adopted on the 23rd day of June _ 1997, by the following vote, to wit:
ATTEST:
CITY CLERK
Attachment:
AYES, COUNCIL MEMBERS O'NEIL, EDWARDS, CLOVER,
NOYES, MAYOR DEBAY
NOES, COUNCIL MEMBERS NONE
ABSENT COUNCIL MEMBERS THOMSON, HEDGES
MAYOR
Exhibit 1: Development Agreement No. 10
F: \USER\PLNISHARED\ I PLANCOM\ PENDING\ NHLUTHRN \RESOLUTMC7TYCNL \DA10 -0RD.DOC
3
• EXHIBIT 1
•
•
DEVELOPMENT AGREEMENT NO. 10
rd
Ord 97 -22
Recording Requested by and
• when Recorded Return to:
City Clerk
City of Newport Beach
P.O. Box 1768
3300 Newport Boulevard
Newport Beach, CA, 92658 -1768
Space Above This Line for Recorder's Use Only
DEVELOPMENT AGREEMENT
BETWEEN THE CITY' OF NEWPORT BEACH
AND
NEWPORT HARBOR LUTHERAN CHURCH
• Ordinance No.
Approved)
This Development Agreement is entered into between the City of Newport Beach
(City) and the Newport Harbor Lutheran Church (Church).
1. RECITALS
1.1 Purpose of Agreement. This Agreement is intended to:
a. Grant vested development rights to Church for the expansion of its
facilities and uses on Church Property;
b. Provide for Church's conveyance to City of approximately .65 acres of
Church Property for use as a public parking facility to serve Bob Henry
Park and the Castaways Park in consideration of City's conveyance to
Church of at least .65 acres of City Property;
•
C. Provide for the construction of parking areas and other improvements on
Church Property to, among other things, replace existing parking spaces
located on the property conveyed to City, restore or replace other Church
improvements impacted by City's project and /or in consideration for the
• exchange of property.
d. Provide public benefits to City and its residents by facilitating the
conveyance of Church Property which, when improved, will provide
parking for, and access to, Bob Henry Park and Castaways Park.
e. Document the understandings pursuant to which City and Church shall
work cooperatively to assure that the respective development plans of both
Parties are compatible with the objectives and interests of the other.
1.2 Authorization. This Agreement is authorized by, and is consistent with, the
provisions of Section 65864 et seg. of the Government Code of the State of
California, and Chapter 15.45 of the Newport Beach Municipal Code.
1.3 Interests of Church. Church is the legal and /or equitable owner of approximately
3.0 acres of real property located in City and more particularly described in
Exhibit "A ".
1.4 Planning Commission /City Council Hearings. The Planning Commission, after
giving appropriate notice, held public hearings to consider this Agreement on
1997. The City Council conducted public hearings on this
• Agreement on , 1997.
1.5 Consistency. This Agreement is consistent with the various elements of the
Newport Beach General Plan, and other applicable ordinances, plans, and
policies of City. This Agreement is also consistent with the purpose and intent of
State and local laws authorizing development agreements in that this Agreement:
(a) provides significant public benefits (as more fully described in Section 1.6); (b)
provides certainty relative to Church's expansion of facilities on its Property; (c)
reduces the economic cost of development by Church and reduces the cost to
City of acquiring Church -owned property and constructing public improvements;
(d) provides assurance to Church that it may proceed with expansion of its
facilities in accordance with Existing General Regulations and the Terms of this
Agreement and; (e) provides assurance to adjoining property owners that future
development and expansion of Church facilities will occur in accordance with the
Terms of this Development Agreement.
1.6 Public Benefits: The City Council finds that this Agreement provides significant
public benefits including the following:
a. The Property transfer provisions of this Agreement will facilitate
• construction of the City Project and enable City to provide easier access
to, and more parking for, Castaways Park and Bob Henry Park;
b. The Property transfer provisions of this Agreement will enable City to
• protect an area of open space adjacent to Dover Drive;
C. The potential to further increase parking for Bob Henry Park and parking
for Church members through the mutual use of parking facilities subject to
further agreement of the Parties
1.7 Police Power. City Council has determined that this Agreement is in the best
interests of the health, safety and general welfare of City, its residents and the
public, was entered into pursuant to, and represents a valid exercise of, 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.
1.8 City Ordinance. On _, 1997, the City Council approved this
Agreement and conducted the first. reading of Ordinance No. 97 -_ approving
and authorizing City to enter into this Agreement (the "Adopting Ordinance "). On
, 1997, the City Council completed adoption of the Adopting
Ordinance. The Adopting Ordinance became effective on 1997.
• 2. DEFINITIONS
2.1 "Adopting Ordinance" refers to City Ordinance No. 97-_ adopted by the City
Council on 1997, authorizing City to enter into this
Agreement.
2.2 'Agreement" refers to this "Development Agreement between the City of Newport
Beach and Newport Harbor Lutheran Church." This Agreement is also identified
by City as City's Development Agreement No. _
2.3 "Annual Review" refers to the review of good faith in compliance by the Parties
with this Agreement as set forth in Section 6.
2.4 "Approval Date" shall mean , 1997, the date on which the City
Council voted to approve this Agreement.
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 "Bob Henry Park" shall mean the active recreational facility owned and
• maintained by City which is located on the north side of Castaways Lane and
east of Dover Drive.
2.7 "Castaways Park" is the sixteen (16) acre parcel owned and maintained by City
• and which is situated to the south of Church Property and east of Dover Drive
2.8 "CEQA" and the "CEQA Guidelines" refers to the California Environmental Quality
Act and the CEQA Guidelines promulgated by the Secretary of Resources of the
State of California.
2.9 "Church" refers to the Newport Harbor Lutheran Church and "Church Property"
refers to the property owned by Church after the conveyances contemplated by
this Agreement are recorded.
2.10 "City" refers to the City of Newport Beach, California.
2.11 "City Council" refers to the City Council of City.
2.12 "City Project' means the construction of various public improvements in the vicinity
of Church that are related to Bob Henry Park, the Castaways Park, or the
Castaways' residential project.
2.13 "Cure Period" refers to the period of time during which a Default may be cured
pursuant to Section 9.
• 2.14 "Day" or "Days" refers to a calendar day, unless expressly stated to be a business
day.
2.15 "Default" refers to any material default, breach, or violation of the provisions of
this Agreement. A "City Default" refers to a Default by City, while a "Church
Default" refers to a default by Church.
2.16 "Development Permit(s)" shall mean building permits, grading permits and other
permits authorizing construction activity.
2.17 The "Effective Date" refers to the effective date of the Adopting Ordinance and is
the effective date of this Agreement.
2.18 An "Estoppel Certificate" is the document required by Section 6.5.
2.19 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" Description of Church -owned property prior to the transfer of property
required by this Agreement (Pre- transfer Church Property)
• Exhibit "B" Planned Community Development Plan (the "Development Plan ")
Exhibit "C" Description Church Property and all improvements to be constructed
• by City on Church Property pursuant to this Agreement
Exhibit "D" Description of the property to be conveyed by City to Church
Exhibit "E" Description of the property to be conveyed by Church to City
2.20 "Existing General Regulations" shall mean those General Regulations approved
by 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.
2.21 "Future General Regulations" shall mean those General Regulations (see Section
2.22 below) adopted by City after the Approval Date.
2.22 "General Regulations" shall mean those ordinances, rules, regulations, policies,
and guidelines of City which are generally applicable to the use of land and /or
construction within City and include, the Fair Share Traffic Contribution Fee
Ordinance, the Uniform Building Code, the Uniform Fire Code, other Uniform
Codes, and water and sewer connection fee ordinances.
2.23 "General Plan" refers to City's General Plan in effect on the Approval Date, plus
all amendments to the General Plan adopted by City on or before the Approval
• Date as part of the Development Plan.
2.24 "Improvements" shall mean all of the physical changes to Church Property
required by this Agreement as more specifically described in Section_ and
depicted on Exhibit "_"
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 "Parties" refers to City and Church and a "Party" shall refer to either of the
Parties.
• 2.29 "Planning Commission" refers to the Planning Commission of the City of Newport
Beach.
3. VESTED RIGHTS
• 3.1 Vested Rights Church shall have the vested right, subject only to the conditions
specified in this Agreement, to construct a total of forty thousand (40,000) square
feet of floor area, inclusive of structures existing on Pre - Transfer Church Property
as of the Adoption Date, in accordance with the Development Plan and subject to
provisions of the Coastal Development Permit issued by the California Coastal
Commission or its successor. Church shall also have the vested right to install
temporary buildings in the lawn area behind the sanctuary, the side lawn west of
the sanctuary and /or the preschool yard (as specified in the Development Plan) at
any time during the Term of this Agreement. Church shall also have the right to
install temporary buildings in the area specified in the Development Plan (Main
Parking Lot) prior to, and during, construction of permanent structures subject to
the following: (a) Church has provided City with proof of its ability to fund
construction of permanent structures within the area permitted by the Development
Plan and; (b) Church has filed a complete application for a building permit with City
or has received a building permit and has diligently pursued construction authorized
by the permit.
3.2 Development Plan. Church's vested right to construct the floor area authorized in
Section 3.1 is subject to compliance with the Development Plan including provisions
relating to height, location, parking spaces, the use of structures and Site Plan
• Review.
3.3. Compliance with General Regulations. Church is required to comply with existing
General Regulations. As to those Existing General Regulations which require the
payment of fees, costs, and expenses, the applicable fee, cost, or expense shall be
waived if City is the beneficiary of the fee and has the authority to do so. Church
shall also comply with any Future Getneral Regulation that does not impair or affect
its ability to develop Church Property in accordance with the Terms of this
Agreement. Church 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. Church also
acknowledges and agrees that City may be required to prepare additional
environmental documentation in the future and prior to the issuance of any
development permit, license or approval as necessary to comply with the provisions
of the CEQA and the CEQA Guidelines.
3.4 Public Health and Safety /Uniform Codes. This Agreement does not prevent City
from adopting, and Church shall comply with, Future General Regulations
(including Uniform Building Codes and Uniform Fire Codes) which are based on
recommendations of a multi -state professional organization and become applicable
• throughout City. This Agreement does not prevent City from imposing conditions
inconsistent with this Agreement on future discretionary approvals, where such
actions directly result from findings by the City Council that those actions are
necessary to avoid consequences which are injurious or detrimental to the public
• health and safety so long as City does not refuse to issue or approve any
application or permit or apply to Church or Church Property any conditions or
Future General Regulations if such action would prevent, preclude, delay, alter, or
in any way materially affect (in a manner not satisfactory to Church) the
development of Church Property in accordance with this Agreement unless and
until the City Council makes a finding that such action is the only reasonably
necessary means to correct or avoid the injurious or detrimental condition. Any
action taken pursuant to this Section shall apply only to the extent and for the
duration necessary to correct or avoid the injurious or detrimental condition.
3.5 Coastal Act Compliance. The Property is located in the Coastal Zone of City as
defined by the California Coastal Act codified at Section 30000 et seq. of the
Public Resources Code of the State of California. Prior to commencing any
"development" on the Property, Church must obtain a Coastal Development
Permit.
4. TRANSFERS OF PROPERTY
4.1 Transfer of City Property to Church. City shall grant to Church, in fee, at least
0.65 acres of City-owned Property which is depicted and described on Exhibit
• "D ". Transfer of this Property is in partial consideration of Church's commitments
pursuant to this Agreement.
4.2 Transfer of Church Property to �ijy. Church shall grant to City, in fee,
approximately 0.65 acres of Pre - Transfer Church Property which is depicted and
described on Exhibit "E ". Transfer of this Property is full consideration for City's
commitments pursuant to this Agreement.
5.1 City Required Improvements. City will construct a number of improvements for
the benefit of Church,. These improvements are necessary to compensate for
the loss of parking spaces caused by implementation of the City Project and to
compensate for the difference in value, if any, between the parcels to be
exchanged by the Parties. City shall construct all of the improvements described
in this Agreement and all of the improvements depicted and described in Exhibit
"C ". Iln the event of any conflict between the provisions of Exhibit "C" relative
to the location of improvements, the provisions of Exhibit "C" shall prevail. In
the event of any conflict between the provisions of this Agreement and Exhibit
• "C" as to any other issue, including whether a particular improvement is to be
constructed, the prevailing provision shall be the one which benefits Church to
the greatest extent. All improvements shall be constructed in conformance with
• all City standards, rules and regulations.
5.2 Parking Facilities. City shall construct or reconstruct, as appropriate, a primary
parking facility on a portion of the existing Church parking lot and the major portion
of the Property to be dedicated to Church pursuant to Section 4.1 (the Main
Parking Lot). The Main Parking Lot shall consist of at least one hundred forty (140)
spaces constructed in compliance! with Exhibit "C" and all applicable City
standards. City shall also construct or reconstruct, as appropriate, a secondary
parking facility which is generally located to the rear of the sanctuary in the
northeast corner of Church Property (the Secondary Parking Lot). The Secondary
Parking Lot shall be also be constructed in compliance with Exhibit "C" and all
applicable City standards. In addition, the Main Parking Lot and the Secondary
Parking Lot will contain customary improvements including:
a. Typical parking lot pavement sections including subbase, asphalt concrete
surfacing, concrete curbs and /or gutters. A portion of the Secondary Parking
Lot will be constructed with a heavier subbase and surface (4" over 8" as
opposed to 3" over 6 ") to accommodate refuse trucks and other heavy
vehicles using the facility;
b. Parking lot striping, consistent with City and ADA requirements;
•C. Landscaping of parking lot medians and barrier area with trees, shrubs and
ground cover as well as a new irrigation system for the landscaping;
d. Lighting of the Main Parking Lot, the Secondary Parking Lot, the new
walkway between the Secondary Parking Lot and the administration
building, and the periphery of these areas so that illumination is consistent
with current City standards for City owned parking lots;
e. Drainage facilities, including a subsurface drainage system for the Main
Parking Lot which will connect: to City's storm drain system. The Secondary
Parking Lot shall be graded and improved to provide for surface drainage
onto Castaways Lane;
f. Grading and all site preparation necessary to the construction of the
improvements described above including, without limitation, removal of
trees, landscaping, decorative: wall and appurtenances, existing parking lot
pavement, and removal as well as replacement of irrigation systems;
g. In addition to the construction and /or reconstruction of the parking facilities,
• City shall construct three (3) new driveways to provide access, including
access to Church and City parking facilities from Castaways Lane. City shall
also construct certain concrete walkways and sidewalks, including ramps to
provide access from the Main Parking Lot and the Secondary Parking Lot to
• existing walkways adjacent to Church building all in conformance with the
requirements of State and Federal law, including the Americans with
Disabilities Act, provided, however, City's commitment does not include any
alterations to structures or internal walkways unaffected by the construction
of improvements by City.
5.3. Other Improvements. City shall also make, or cause to be made, the following
improvements:
a. Grading and re- landscaping of the existing playground adjacent to Church's
pre - school, including the replacement of shade trees, turf, irrigation systems,
fencing (style consistent with existing material) and slope stabilization;
b. Fencing and /or screen walls along common property lines that are
consistent with the style of link fencing at Bob Henry Park, with the fencing
on the south side of Church to contain a gate which can be used by Church
members or employees to gain access to the Castaways Park.
C. Landscaping of the area adjacent to Church /Castaways Residential
Community property line, including the removal of trees designated for
removal by Church the installation of replacement trees and landscaping
• that provides an aesthetically pleasing area. In addition, a new irrigation
system shall be installed as necessary to service this area. Retaining
walls necessary to account for changes in grade in this area shall be
constructed on property owned or controlled by the Castaways Community
Association and /or its member(s). Retaining walls constructed on Church
Property by City shall not exceed three (3) feet in height.
d. Landscaping and irrigation of the Castaways Lane median and parking
strip in an aesthetically pleasing manner with maintenance by the City or
the Castaways Community Association.
e. Installation of a subsurface sewer lateral in the Main Parking Lot, and
extending from the terminus of the existing sewer lateral to a point
approximately twenty (20) feet south of the Council Room. With the
exception of this sewer lateral, City shall not be required to install any
electrical, gas, water, or other service facility on or adjacent to Church
Property, provided, however, City shall be responsible for the relocation of
the existing gas meter for Church Property to a location acceptable to
Church and Southern California Gas Company.
• f. Installation of landscaping and irrigation improvements along Castaways
Lane and Dover Drive consistent with all City standards.
g. Installation of an aesthetically pleasing trash enclosure capable of
• accommodating two (2) bins as well as an access pad at the southeast
end of the Secondary Parking Lot.
h. Installation of a memorial plaque in honor of Bob Henry within City right -of-
way (parkway) and a related bench with low level landscaping on Church
Property in proximity to the memorial plaque.
I. Construction of a retaining wall at the easterly corner of Main Parking Lot
adjacent to Lot 6 of the Castaways Residential Development as shown on
Exhibit "C ".
5.4 Other City Commitments. In addition to City improvement commitments in
Sections 5.2 and 5.3, City makes the following additional commitments to Church:
a. City shall maintain, during the Term of this Agreement, signage, left turn
pockets, and other improvements necessary to maintain and facilitate
ingress to Church from vehicles proceeding southbound on Dover Drive
and egress for vehicles exiting Church Property and Castaways Lane to
proceed southbound on Dover Drive.
b. City shall construct identification sign walls on City property in proximity to
• the new City parking lot for Castaways Park as generally depicted on
Exhibit "C ". Church shall provide City with plans and specifications for
the sign walls and shall be responsible for all maintenance. Church shall
have the right to install an additional identification sign, at Church's
expense, along Castaway Lane as specified in the Development Plan.
The size and style of the signs shall be consistent with the Development
Plan. The signs shall not be installed in a manner which is inconsistent
with the sight distance standards of City.
C. City parking lot to be constructed west of the Main Parking Lot shall be
available for parking by members of the general public, including members
of, and visitors to, Church.
d. Except as expressly provided in this Agreement, no dedications or
reservations of Church Property shall be required in conjunction with the
application or issuance of any permit authorizing development,
construction, use, or operation of Church Property.
e. The exchanges of land contemplated by this Agreement will effectively
modify the boundaries of the Parcels owned by the Parties. City is
required, at its sole cost and expense, to conduct appropriate field work
• and surveys, prepare required maps, records, and documents, and
process, through and including approval and recordation by the County of
Orange, all maps, records of surveys or legal descriptions necessary to
insure that Church Property constitutes a legal parcel with an accurate
• legal description. Church shall cooperate with City by, among other things,
providing requested information and necessary signatures.
6. ANNUAL REVIEW
6.1 City and Church Responsibilities. At least every twelve (12) months during the
Term, City shall review the Party's good faith substantial compliance with this
Agreement (the "Annual Review "). After the Annual Review, City's finding of
good faith compliance by Church shall be conclusive for the purposes of future
Annual Reviews or legal action between the Parties. Either Party may address
any requirements of this Agreement during the Annual Review. However, fifteen
(15) days written Notice of any requirement to be addressed shall be given to the
other Party 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 (60) days at the request of either Party to afford
sufficient time for analysis and preparation of a response.
6.2 Opportunity to be Heard. Church shall be permitted an opportunity to be heard
orally and in writing at any noticed public hearing or meeting relating to the
Annual Review.
• 6.3 Notice to Church. City shall provide Church with at least fifteen (15) days written
notice of the Annual Review. The written notice provided to Church by City shall
include a copy of any City staff report, document or exhibit proposed to be
submitted to the City Council in conjunction with the Annual Review of this
Agreement.
6.4 Review Letter.
a. After Finding of Compliance. If Church is found to be in compliance with
this Agreement after the Annual Review, City shall issue, within ten (10)
days of Church's written request, a letter to Church stating that this
Agreement remains in effect and Church is not in Default.
b. After Cure of Default. If Church 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, City shall issue, within ten (10)
days of Church's written request, a letter to Church stating that this
Agreement remains in effect and Church is not in Default.
• 6.5 Estoppel Certificate. Either Party may at any time deliver a written Notice to the
other Party requesting an Estoppel certificate (the "Estoppel Certificate ") stating
the following:
• a. This Agreement is in full force and effect and is a binding obligation of the
Parties.
b. This Agreement has not been amended or modified either orally or in
writing or, if so amended, identifies the amendments.
C. To the best of the signing Party's knowledge, no Default in the
performance of the requesting Party's obligations under this Agreement
exists or, if a Default does exist, the nature and amount of any Default.
d. 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 City. An Estoppel Certificate may be relied on by assignees and
Mortgagees.
6.6 Failure to Conduct Annual Review. City's failure to conduct an Annual Review
shall not constitute or be asserted by City as Church's Default or asserted by
Church as a City 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. Church has the absolute right to assign 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 Church, or its parent body, the Evangelical Lutheran
Church in America, owns any part of the Property, Church 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 Church of the corresponding obligations.
• a. 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 Church 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.
b. Under no circumstances, shall Church be relieved of its obligations under
Section 4.2.
7.4 Amendment of Agreement. 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, the Newport Beach Municipal
Code and /or this Agreement. After any amendment, the Term "Agreement" shall
refer to the amended Agreement.
7.5 Enforcement. This Agreement is enforceable by each of the Parties and their
respective successors and assigns.
7.6 Termination. This Agreement shall Ibe 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. Entry, after all appeals have been exhausted, of a final judgment or
• issuance of a final order directing City to set aside, withdraw, or abrogate
City's approval of this Agreement; or
C. The effective date of a Party's election to terminate this Agreement as
provided in Section 9.3 of this Agreement.
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. 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. Church consents in writing to the modification.
g. Church shall have the right to seek judicial review of any proposed
modification to ensure compliance with this Section.
9. DEFAULT, REMEDIES AND TERMINATION
9.1 General Provisions. In the event of a Default (see Section 6.1), 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 this
• 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 Party a
Notice of Intent to Terminate this Agreement if that Party intends to terminate this
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.
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 this Agreement to the other Party and this 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 11.16, 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 Church. Subject to all other provisions of this Agreement, and after
termination of this Agreement in compliance with Sections 9.1 through 9.3, if
Church defaults, City shall have no obligation to perform any of City's obligations
under this Agreement, unless othennrise ordered by a Court of law. City's election
not to perform as permitted by this provision shall not constitute a Default.
9.6 Default by City. Subject to all other provisions of this Agreement, and after
termination of this Agreement in compliance with Sections 9.1 through 9.3, if City
Defaults, Church shall have no obligation to perform any of Church's obligations
under this Agreement, unless otherwise ordered by a Court of law. Church'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 of any of their respective
rights under this Agreement may not be compensable by an award of monetary
damages. Therefore, except as otherwise specifically provided in this
Agreement, 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 Party under any other provision of law.
10. ENCUMBRANCES AND RELEASES ON PROPERTY
10.1 Discretion to Encumber. Church may encumber all or any portion of Church
Property in any manner. City acknowledges that lenders providing financing may
require technical modifications to this Agreement which do not materially alter the
intent of the Parties. City agrees to meet, upon request, with Church and /or
lenders to negotiate in good faith any lender request for modification. City agrees
not unreasonably to withhold 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 City, shall be entitled to receive from City written
Notice of any Church Default at the same time Church is provided with Notice
pursuant to Section 6.3.
• 11. MISCELLANEOUS PROVISIONS
11.1 Notices. All Notices 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 City: City Clerk
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92660
Attention: City Attorney
Attention: Planning Director
. To Church: Reverend Bill Kirlin- Hackett
Newport Harbor Lutheran Church
798 Dover Drive
Newport Beach, CA 92663
President of the Church Council
Newport Harbor Lutheran Church
798 Dover Drive
Newport Beach, CA 92663
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, 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 this Agreement is found by a Court to be
invalid, void, or illegal, the Parties :shall modify this Agreement to implement the
original intent of the Parties. These! steps may include the waiver by either of the
Parties of their rights under the unenforceable provision. If, however, this
Agreement objectively cannot be modified to implement the original intent of the
Parties and the Party substantially benefited by the material provision does not
waive its rights under the unenforceable provision, this 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 Sections 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 1 are part of this
Agreement.
• 11.7 Covenant of Good Faith and Fair Dealin . 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. City shall help Church obtain any permits from either
City or other public agencies which may be required for development of the
Property or as a result of any modifications, suspensions, or alternate courses of
action allowed by this Agreement. Church 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 Church 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 this 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 City,
and in particular, City's police powers or to surrender or abrogate City's
governmental powers over the Property.
11.12 Authority to Execute. The person executing this Agreement on behalf of Church
warrants and represents that he /she has the authority to do so and the authority
to bind Church to the performance of Church's obligations pursuant to
Congregational approval of 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 Church Property as to which this Agreement is terminated.
11.15 Recording. The City Clerk shall cause a copy of this Agreement to be executed
by 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 City to record the Agreement as required by
this Section and Government Code Section 65868.5 does not make this
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 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.
• IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed on the day and year first below written.
•
•
0
APPROVED AS TO FORM:
By:
City Attorney
ATTEST
By:
City Clerk
FAcat\ag \I utheranl053097.doc
da/11:55
CITY OF NEWPORT BEACH,
a municipal corporation
0
City Manager
NEWPORT HARBOR
LUTHERAN CHURCH
A-
STATE OF CALIFORNIA )
• ) ss:
COUNTY OF ORANGE )
On 1997, before me, the undersigned, a Notary Public in and
for the State, personally appeared Kevin Murphy, City Manager, known to me to
be the Mayor of the City of Newport Beach and LaVonne Harkless, known to me to be the City
Clerk of the City of Newport Beach, known to me to be the persons whose names are
subscribed to the within instrument, and acknowledged to me that they executed the same.
WITNESS my hand and official seal.
Notary Public in and for said State
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
• On . 1997, before me,
personally appeared
.personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person(s) whose name(s) is /are subscribed to the within instrument and
acknowledged to me that he /she /they executed the same in his /her /their authorized
capacity(ies), and that by his /her /their signature(s) on the instrument the person(s) or the entity
upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal
Signature
(This area for official notaries seal)
•
STATE OF CALIFORNIA }
COUNTY OF ORANGE } ss.
CITY OF NEWPORT BEACH }
I, LAVONNE M. HARKLESS, City Clerk of the City of Newport Beach, California, do
hereby certify that the whole number of members of the City Council is seven; that the foregoing
ordinance, being Ordinance No. 97 -22 was duly and regularly introduced before and adopted by the
City Council of said City at a regular meeting of said Council, duly and regularly held on the 23rd
day of June, 1997, and that the same was so passed and adopted by the following vote, to wit:
Ayes: O'Neil, Edwards, Glover, Noyes, and Mayor Debay
Noes: None
Absent: Thomson, Hedges
Abstain: None
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the
official seal of said City this 24th day of June, 1997.
(Seal)
STATE OF CALIFORNIA )
COUNTY OF ORANGE
CITY OF NEWPORT BEACH )
�� ( %c %f7 , /,a,&
City Clerk of the City of
Newport Beach, California
3ERTIFICATE OF PUBLICATION
I, LAVONNE M. HARKLESS, City Clerk of the City of Newport Beach, California, do hereby
certify that Ordinance No. 97 -22 has been duly and regularly published according to law and the
order of the City Council of said City and that same was so published in The Daily Pilot, a daily
newspaper of general circulation on the following date, to wit: June 28, 1997.
In witness whereof, I have hereunto subscribed my name this 7th day of
July 1997.
City Clerk of the City of
Newport Beach, California