HomeMy WebLinkAbout2009-8 - Approving Development Agreement no. 2005-002 between the City of Newport Beach, JGKallins Newport Investments, LLC, and Sunstone Jamboree, LLC, for the Hyatt Regency Newport Beach Hotel Expansion and Timeshare Project Located at 1107 Jamboree RoaORDINANCE NO. 2009-8
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
NEWPORT BEACH APPROVING DEVELOPMENT
AGREEMENT NO. 2005 -002 BETWEEN THE CITY OF
NEWPORT BEACH, JGKALLINS NEWPORT INVESTMENTS,
LLC, AND SUNSTONE JAMBOREE, LLC, FOR THE HYATT
REGENCY NEWPORT BEACH HOTEL EXPANSION AND
TIMESHARE PROJECT LOCATED AT 1107 JAMBOREE
ROAD (PA2005 -212).
WHEREAS, an application was filed by Sunstone Jamboree, LLC ( "Sunstone "),
requesting approval of Parcel Map No. 2007 -003, Use Permit No. 2005 -046,
Modification Permit No. 2007 -095, and Development Agreement No. 2005 -002, with
respect to property located at 1107 Jamboree Road, and legally described as Parcels 1
and 2 as shown on a Parcel Map recorded in Book 17, Page 3, of Maps in the Office of the
County Recorder of Orange County (`Property"), to expand the existing Hyatt Regency
Newport Beach hotel. Proposed improvements include the addition of 88 timeshare
units, a new 800 -seat ballroom facility, a new 10,072- square -foot spa and fitness center,
a new housekeeping and engineering building, and a two -level parking garage. Project
implementation requires the demolition of 12 existing hotel rooms, the existing 3,190 -
square -foot Terrace ballroom, and the existing engineering and maintenance building,
and removal of the existing nine -hole golf course; and
WHEREAS, pursuant to Section 20.84.050 of the Newport Beach Municipal
Code (Development Agreement), the City and the operator of a timeshare project are
required to enter into a development agreement under the provisions of Chapter 15.45
of the Newport Beach Municipal Code to set forth the amount payable to the City by a
timeshare owner for the right of occupancy of any timeshare unit; and
WHEREAS, Newport Beach Municipal Code section 15.45.040 requires that
development agreements include the term, permitted uses, density and intensity of
development, and the maximum height and size of proposed buildings; and
WHEREAS, a Development Agreement between the City of Newport Beach,
JGKallins Newport Investments, LLC, the fee owner of the Property ( "JGKallins "), and
Sunstone, the leaseholder of the Property (collectively Sunstone and JGKallins are
referred to hereafter as the "Landowner"), has been prepared and is attached as Exhibit
"A "; and
WHEREAS, during the term of the Development Agreement, the Landowner
shall have a vested right to develop the Property in accordance with the Development
Agreement and project approvals, subject to the terms and conditions of the
Development Agreement, Parcel Map No. 2007 -003, Use Permit No. 2005 -046,
Modification Permit No. 2007 -095, and the Certified Final Environmental Impact Report
(State Clearing House No. 2006121052); and
WHEREAS, adoption of this ordinance and approval of the Development
Agreement rescinds and cancels Landowner's remaining rights and obligations under
the Circulation Improvement and Open Space Agreement ( "CIOSA ") upon the effective
date of the Development Agreement; and
WHEREAS, the Landowner has agreed to provide public benefits as
consideration for the Development Agreement, including the timeshare development fee
required by Chapter 20.84 of the Newport Beach Municipal Code in the amount of
Three Million Dollars ($3,000,000); a visitor and recreational facilities fee in the amount
of Two Million Dollars ($2,000,000) to be used for improvements that provide visitor and
recreational facilities at Marina Park or at any other site designated by the City; an off -
site water quality improvement fee in the amount of One Million Dollars ($1,000,000);
and a bayfront walkway connection fee in the amount of One Hundred Thousand
Dollars ($100,000) to be used towards the cost of public improvements that expands
access to the bayfront, such as the Marine Avenue Bridge /Bayside Drive bayfront
walkway connection; and
WHEREAS, the Planning Commission held a public hearing on October 23, 2008
and November 6, 2008 in the City Hall Council Chambers, 3300 Newport Boulevard,
Newport Beach, California, at which time the Planning Commission considered the
proposed project, including the parcel map, use permit, modification permit, and
development agreement, the Final Environmental Impact Report, and the full
administrative record. A notice of time, place, and purpose of the hearing was given in
accordance with the Municipal Code. Evidence, both written and oral, was presented to
and considered by the Planning Commission at the hearing. At the conclusion of the
hearing and after considering the evidence and arguments submitted by the City staff,
the Landowner, and all interested parties, the Planning Commission adopted: (1)
Resolution No. 1770 recommending certification of the Final Environmental Impact
Report (SCH#2006121052) prepared for the project, and (2) Resolution No. 1776
recommending adoption of Statement of Overriding Considerations and approval of
Parcel Map No. 2007 -003, Use Permit No. 2005 -046, Modification Permit No. 2007 -095,
and Development Agreement No. 2005 -002 to the City Council; and
WHEREAS, pursuant to Section 15.45.050 of the Newport Beach Municipal Code,
the City Council held a noticed public hearing on February 24, 2009, in the City Hall
Council Chambers, 3300 Newport Boulevard, Newport Beach, California to consider the
recommendation of the Planning Commission. A notice of time, place and purpose of the
meeting was given in accordance with the Municipal Code. Evidence, both written and
oral, was presented to and considered by the City Council at this meeting; and
WHEREAS, the Land Use Element of the General Plan designates the project site
as Visitor Serving Commercial (CV), which is intended to provide for accommodation,
goods, and services intended to primarily serve visitors to the City. The project site, in
particular, is allocated a maximum development limitation of 479 hotel rooms (Anomaly
No. 52). The demolition of the 12 traditional hotel rooms and construction of the 88 new
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timeshare rooms results in a total room count of 479 rooms, consistent with maximum
development limitation for the site. The project has also been reviewed for consistency
with all applicable policies of the General Plan and been determined to be consistent
each applicable policy; and
WHEREAS, the Coastal Land Use Plan (CLUP) of the Local Coastal Program
sets forth goals, objectives, and policies that govern the use of land and water in the
coastal zone within the City and addresses land use and development, public access
and recreation, and coastal resource protection in accordance with the California
Coastal Act. The project site is designated as Visitor - Serving Commercial (CV -B). This
designation is intended to provide for accommodations, goods, and services intended for
visitors to the City. The proposed project will provide expanded accommodations and
services in the City and result in a total gross floor area of 374,104 square feet. This
equates to a 0.34 floor area to land area ratio, which is below the 0.50 to 1.25 floor area
ratio permitted under the CV -B land use designation. The project has also been reviewed
for consistency with all applicable policies of the CLUP and been determined to be
consistent each applicable policy; and
WHEREAS, the City Council has reviewed and considered the information in the
Development Agreement and in the full administrative record, and found that:
1. The Development Agreement is entered into pursuant to, and constitutes a present
exercise of, the City's police power.
2. The Development Agreement is in the best interests of the health, safety, and
general welfare of the City, its residents, and the public.
3. The Development Agreement is compatible and consistent with the objectives,
policies, general land uses, and programs specified in the General Plan and Coastal
Land Use Plan, and does not create any direct conflict with the General Plan or
Coastal Land Use Plan.
4. The Development Agreement is consistent with Newport Beach Municipal Code
Sections 15.45.040 and 20.84.050, and includes all the contents required for
development agreements by the City of Newport Beach.
5. The Development Agreement Amendment is consistent with provisions of state law
(California Government Code Sections 65864 - 65869.5) and local law (Municipal
Code chapter 15.45) that authorize binding agreements that: (i) encourage
investment in, and commitment to, comprehensive planning and public facilities
financing; (ii) strengthen the public planning process and encourage private
implementation of the local general plan; (iii) provide certainty in the approval of
projects to avoid waste of time and resources; and (iv) reduce the economic costs of
development by providing assurance to the property owners that they may proceed
with projects consistent with existing policies, rules, and regulations. More
specifically, the Development Agreement is consistent and has been approved in
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SDN611846.4
accordance with provisions of California Government Code Section 65867 and
Municipal Code Chapters 15.45.
6. A Final Environmental Impact Report (SCH No. 2006121052) was prepared in
accordance with the provisions of the California Environmental Quality Act (CEQA),
Public Resources Code § §21000, et seq., and the State CEQA Guidelines,
California Code of Regulations § §15000, et seq. The City Council considered and
certified the Final Environmental Impact Report on February 24, 2009, by adopting
certain CEQA Findings of Facts contained within Resolution No. 2009- 9 , which
are hereby incorporated by reference.
7. The Development Agreement provides significant public benefits to the City of
Newport Beach.
WHEREAS, the City Council finds that judicial challenges to the City s CEQA
determinations and approvals of land use projects are costly and time consuming. In
addition, project opponents often seek an award of attorneys' fees in such challenges.
As project applicants are the primary beneficiaries of such approvals, it is appropriate
that such applicants should bear the expense of defending against any such judicial
challenge, and bear the responsibility for any costs, attorney's fees, and damages which
may be awarded to a successful challenger. Based thereon, the Landowner shall be
required to indemnify, hold harmless and defend the City as provided for in the
Development Agreement and project conditions of approval; and
THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH DOES HEREBY ORDAIN
AS FOLLOWS:
SECTION 1: Development Agreement No. 2005 -002 attached hereto as
Exhibit 'A," including rescission of Landowner's remaining rights and obligations under
CIOSA, is adopted and approved.
SECTION 2: The
of this Ordinance. This
the City, and the same
adoption.
SDW11846.4
Mayor shall sign and the City Clerk shall attest to the passage
Ordinance shall be published once in the official newspaper of
shall become effective thirty (30) days after the date of its
13
This Ordinance was introduced at a regular meeting of the City Council of the
City of Newport Beach held on February 24, 2009, and adopted on March 10, 2009, by
the following vote, to wit:
AYES, COUNCIL MEMBERS
Henn, Rosansky,
Curry, Webb, Gardner, Daigle, Mayor Selich
NOES, COUNCIL MEMBERS
ABSENT COUNCIL
MAYOR
ATTEST:
None
None
CITY CLERK
IF
APPROVED TO AS FORM:
CITY ATTORNEY
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SD%11846.4
EXHIBIT "A"
Development Agreement No. 2005 -002
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92663 -3884
Attn: City Clerk
(Space Above This Line Is for Recorder's Use Only)
This Agreement is recorded at the request and
for the benefit of the City of Newport Beach
and is exempt from the payment of a recording
fee pursuant to Government Code §§ 6103 and
27383.
DEVELOPMENT AGREEMENT
Between
CITY OF NEWPORT BEACH,
JGKALLINS NEWPORT INVESTMENTS, LLC
and
SUNSTONE JAMBOREE, LLC
CONCERNING THE HYATT REGENCY NEWPORT BEACH PROPERTY
(1107 JAMBOREE ROAD)
TABLE OF CONTENTS
Pape
1. Definitions ............................................................................................. ..............................4
1.1 "Adopting Ordinances" ................................................... ..............................4
1.2 "Agreement" .................................................................. ..............................4
1.3 "Approval Date" ............................................................. ..............................4
1.4 "Cancellation" ............................................................... ............................... 5
1.5 " CEQA .......................................................................................................... 5
1.6 " CIOSA ........................................................................................................ 5
1.7 "City" .......................................................................... ..............................5
1.8 "City Council" ................................................................. ..............................5
1.9 " Develop" ....................................................................... ..............................5
1.10 "Development Fees" ...................................................... ..............................5
1.11 "Development Plan" ....................................................... ..............................5
1.12 "Effective Date" .............................................................. ..............................5
1.13 "EIR" .......................................................................... ..............................5
1.14 "ENR Index" ................................................................... ..............................5
1.15 " Exhibit" ......................................................................... ..............................6
1.16 "Existing General Regulations" ...................................... ..............................6
1.17 "Fair Share Traffic Contribution Ordinance" ....................... ............................... 6
1.18 "First Time -Share Building Permit" ................................ ..............................6
1.19 "Future General Regulations" ........................................ ..............................6
1.20 `General Plan" ............................................................... ..............................6
1.21 "General Regulations" ............................................................. ..............................6
1.22 "Governmental Reservations" ........................................ ..............................7
1.23 " Include" ........................................................................ ..............................7
1.24 " Mortgage" ..................................................................... ..............................8
TABLE OF CONTENTS
Page
1.25 " Mortgagee" .............................................................................. ..............................8
1.26 "Off -Site Water Quality Fee" .......................................... ..............................8
1.27 "Party" or " Parties" ......................................................... ..............................8
1.28 " Project" ......................................................................... ..............................8
1.29 "Project Approvals" ........................................................ ..............................8
1.30 "Project Conditions" ....................................................... ..............................8
1.31 "Property" ...................................................................... ..............................9
1.32 "Single Site Time-Share Plan" ....................................... ..............................9
1.33 "Single Time -Share Property" ........................................ ..............................9
1.34 "Subsequent Approvals" ................................................ ..............................9
1.35 "Term" .......................................................................... ..............................9
1.36 "Time -Share Fee" .......................................................... ..............................9
1.37 "Time -Share Unit" .......................................................... ..............................9
1.38 "Time -Share Unit Purchaser" ......................................... ..............................9
1.39 "Time -Shan: Use" .......................................................... ..............................9
1.40 "Vested Entitlement" or " Entitlement" ............................. ..............................9
1.41 "Visitor Serving and Recreational Facilities Fee" ........... ..............................9
1.42 "Walkway Connection Fee" ........................................... ......................:.......9
2. Development of Property ................................................................... ..............................9
2.1 Development Program ................................................... ..............................9
2.2 Compliance with Project Conditions ............................. .............................11
2.3 Compliance with General Regulations .......................... .............................11
2.4 No Conflicting Enactments ........................................... .............................11
2.5 Public Health and Safety /Uniform Codes ..................... .............................12
2.6 Police Power ................................................................. .............................12
TABLE OF CONTENTS
Paae
2.7 Public Works Improvements ......................................... .............................13
2.8 Overriding Federal and State Laws and Regulations ... .............................13
2.9 Procedural Regulations ................................................ .............................14
3. Benefits to Owner .............................................................................. .............................14
3.1 Right to Develop ........................................................... .............................14
3.2 Benefits to Landowner .................................................. .............................15
3.3 Reservations or Dedications of Land ............................ .............................15
3.4 No Additional Traffic Related Fees or Conditions ......... .............................15
3.5 Time for Construction and Completion of Project ......... .............................15
3.6 Tentative Maps ............................................................. .............................16
3.7 Processing and Issuance of Permits ............................ .............................16
3.8 Future Approvals .......................................................... .............................17
4. Fees ...................................................................................................... .............................17
4.1 Time -Share Development ............................................. .............................17
4.2 Visitor Serving and Recreational Facilities — Marina Park Marina ............. 17
4.3 Off-Site Water Quality Improvements ........................... .............................18
4.4 Bayfront Walkway Connection ...................................... .............................19
4.5 ENR Index .................................................................... .............................19
4.6 Development Fees ...................................................... .............................20
4.7 Permitted Increases in Development Fees Applicable to Property . ........... 21
5. CIOSA ................................................................................................. .............................21
5.1 Cancellation of CIOSA .................................................. .............................21
5.2 Maintenance of CIOSA Pre -Paid Transportation Fund . .............................21
5.3 No Payments Due from City ......................................... .............................21
6. Sales Tax ............................................................................................ .............................22
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6.1 Project Construction ..................................................... .............................22
6.2 Direct Payment Process ............................................... .............................22
6.3 Fixtures, Materials and Equipment ............................... .............................22
7. Project as Private Undertaking ....................................................... .............................23
8. Effective Date; Term .............................................................. .............................23
9. Amendment or Cancellation of Agreement ............................ .............................23
10. Enforcement .......................................................................... .............................23
11. Periodic Review of Compliance ............................................. .............................23
12. Events of Default .................................................................... .............................23
12.1 Default by Landowner ................................................... .............................23
12.2 Default by City .............................................................. .............................24
12.3 Specific Performance and Damages Remedies ........... .............................24
12.4 Limited Recovery of Legal Expenses by Prevailing Party in Any
Action......................................................................... .............................24
13. Cooperation ........................................................................................ .............................25
14. Force Majeure ........................................................................ .............................25
15. Indemnity ............................................................................. ............................... 25
16. Third Party Legal Challenge .................................................. .............................25
17. Mortgagee Rights ................................................................... .............................26
17.1 Encumbrances on Property .......................................... .............................26
17.2 Mortgagee Protection ................................................... .............................26
17.3 Mortgagee Not Obligated ............................................. .............................26
17.4 Notice of Default to Mortgagee; Right of Mortgagee to Cure .....................26
18. Assignment ......................................................................................... .............................27
18.1 Right to Assign ........................................................... ............................... 27
18.2 Agreement Binding on Successors and Assigns .......... .............................27
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TABLE OF CONTENTS
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19. Estoppel Certificate ........................................................................... .............................28
20. Further Actions and Instruments ............................................ .............................28
21. Notices ................................................................................... .............................28
22. Rules of Construction and Miscellaneous Terms ................... .............................29
22.1 Rules of Construction ................................................... .............................29
22.2 Time Is of the Essence ................................................. .............................29
22.3 Waiver .......................................................................... .............................29
22.4 Counterparts ................................................................. .............................30
22.5 Entire Agreement .......................................................... .............................30
22.6 Severability ................................................................... .............................30
22.7 Construction ................................................................. .............................30
22.8 Constructive Notice and Acceptance ............................ .............................30
22.9 No Third Party Beneficiaries ......................................... .............................30
22.10 Applicable Law and Venue ........................................... .............................31
22.11 Non - Liability of City Officers and Employees ................ .............................31
22.12 Section Headings ......................................................... .............................31
22.13 Covenant Not To Sue ................................................... .............................31
22.14 Eminent Domain ........................................................... .............................31
22.15 No Brokers ................................................................... .............................31
23. Authority to Execute ............................................................... .............................31
24. Recordation ........................................................................... .............................32
EXHIBITA .................................................................................... ............................... A -1
EXHIBITB .................................................................................... ............................... B -1
EXHIBITC .................................................................................... ............................... C -1
v
DEVELOPMENT AGREEMENT
Hyatt Regency Newport Beach
(Pursuant to California Government Code sections 6586465869.5)
This DEVELOPMENT AGREEMENT (the "Agreement ") is entered into on March 10,
2009, by and between: (1) CITY OF NEWPORT BEACH, a municipal corporation and
charter City ( "C�it "); (2) JGKALLINS NEWPORT INVESTMENTS, LLC, a California
limited liability company ( "JGKallins "); and (3) SUNSTONE JAMBOREE, LLC, a
Delaware limited liability company ( "Sunstone ") (JGKallins and Sunstone are collectively
referred to herein as "Landowner"). City and Landowner are sometimes collectively
referred to in this Agreement as the "Parties" and individually as a "Pagy."
RECITALS
A. Property /Ownership Status. JGKallins is the fee owner of a 25.7 -acre parcel of
real property (the "Propert y ") that is described in the legal description attached
hereto as Exhibit A and depicted on the site map attached hereto as Exhibit B.
Sunstone is the leaseholder of the Property pursuant to an assignment of lease
dated May 13, 2005 between WHP Hotel Owner -1, L.P., a Delaware limited
partnership, the assignor, and Sunstone, the assignee. The Property is under
the City's land use jurisdiction and is developed with the Hyatt Regency Newport
Beach Hotel ( "Hyatt Hotel ") located at 1107 Jamboree Road. The Property is
located in the California Coastal Zone and therefore this Agreement will require
approval by the California Coastal Commission in compliance with Section 65869
of the California Government Code.
B. CIOSA Agreement. On September 14, 1992, the City Council of the City of
Newport Beach ( "City Council ") adopted Ordinance No. 92 -35, through which
City and Landowner's predecessor -in- interest, The Irvine Company, a Michigan
corporation, entered into the Circulation Improvement and Open Space
Agreement pertaining to twelve (12) parcels of real property located in City,
including the parcel owned by Landowner. On September 11, 1995, City
adopted Ordinance No. 95 -42 approving the First Amendment to the Circulation
Improvement and Open Space Agreement dated March 12, 1996 ( "CIOSA
Amendment "). The original Circulation Improvement and Open Space
Agreement and the CIOSA Amendment are collectively referred to herein as the
"CIOSA."
C. Public Benefits under the CIOSA. Under the CIOSA, Landowner: (1) Committed
to road improvements adjacent to proposed projects, made an interest -free loan
to City, and pre -paid required fair share road improvement fees that City used as
matching funds when obtaining outside transportation funding; and (2)
Committed to dedicating 138.1 acres for open space and public facilities which
was more than was required for the twelve (12) parcels under the City of Newport
Beach General Plan and the City of Newport Beach Park Dedication Ordinance,
in effect at the time.
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D. CIOSA Building Entitlements. The CIOSA provided Landowner with certain
building entitlements with respect to the Property including the right to develop 68
hotel rooms at the Property for a total of 479 hotel rooms. To date, Landowner
has not developed the 68 additional hotel rooms provided for in CIOSA.
E. CIOSA Status. Although Landowner did not utilize all of the building entitlements
provided by CIOSA as set forth in Recital D, it fulfilled all the public benefits listed
in Recital C as if it had done so.
F. Proiect. Landowner has asked City to approve this Development Agreement, a
Use Permit, a Modification Permit, and a Parcel Map which would authorize the
Landowner to: (1) exceed the base height limit of 26 feet to allow the seven (7)
buildings constructed on the Single Time -Share Property and the Ballroom,
defined below, to be constructed at heights of up to 35 feet; (2) exceed the
maximum height limit of 35 feet for an architectural cupola and tower feature of
the proposed Ballroom, as defnied below; (3) allow commercial tandem valet
parking; (4) reconfigure two existing lots allowing for a SingleTime-S hare
Property to be governed by a Single Site Time -Share Plan to be located on one
parcel and the hotel to remain on the other parcel; (5) establish finish grades for
the purposes of measuring height; (6) construct 88 Time -Share Units within
seven buildings on the SingleTime -Share Property to be governed by a Single
Site Time -Share Plan and which will allow the Landowner to sell, lease or convey
Time -Share Use interests in the SingleTime-S hare Property; (7) construct a new
800 -seat ballroom facility (the "Ballroom "); (8) construct a new 10,072 square -
foot spa and fitness center, including a new outdoor pool facility; (9) convert an
existing building used for storage to a housekeeping and engineering use; and
(10) construct a new two -level parking garage (collectively the "Project "). To
implement the Project without exceeding the overall entitlement cap of 479 hotel
rooms, Landowner is proposing to demolish 12 existing villas (rooms) so that the
net number of hotel rooms at the Property will be 391 hotel rooms and construct
88 Time -Share Units for a total of 479 hotel rooms/time -share units. In addition,
implementation of the Project would require the demolition of the existing 3,190 -
square -foot Terrace Ballroom as well as the existing engineering and
maintenance building, and removal of the existing nine -hole golf course. The
Project will also require the removal and reconfiguration of a recreational
courtyard located in the center of the main hotel complex, and associated hotel
parking areas, hardscape, and landscape. The majority of the Project consists of
redevelopment in the northern, northwestern, and southern portions of the
Property. Other upgrades included in the Project would also occur in the central
portion of the Property. The total area for the Project is approximately 14 acres,
or about 55 percent, of the Property. Landowner anticipates developing the
Project in two phases with the ballroom, spa and garage being constructed in
phase one prior to the Time -Share Units to be developed in phase two.
G. CIOSA Cancellation. Given the proposed Time -Share Use of the Single Time -
Share Property and that CIOSA is no longer needed for the development of the
Property, this Agreement provides for the rescission and cancellation of the
03.02.09 Clean 2
Landowner's remaining rights and obligations under CIOSA on the Effective Date
( "Cancellation').
H. Public Benefit. Subject to the provisions in Section 4 below, and in exchange for
the approvals, any authorization contained in Recital F and the other promises
and covenants herein, Landowner has agreed to provide public benefits as
consideration for this Agreement enabling City to fund and complete Visitor
Serving and Recreational Facilities, Marine Avenue Bridge — Bayside Drive
Bayfront Walkway Connection, as well as Off -Site Water Quality Improvements
as follows: (1) Landowner's payment of Two Million Dollars ($2,000,000) in fees
for Visitor Serving and Recreational Facilities; (2) Landowner's payment of One
Hundred Thousand Dollars ($100,000) in fees for the Marine Avenue Bridge —
Bayside Drive Bayfront Walkway Connection; and (3) Landowner's payment of
One Million Dollars ($1,000,000) in fees for Off -Site Water Quality Improvements.
Time -Share Developments. On March 24, 1997, the City Council adopted
Ordinance No. 97 -09, which added Chapter 20.84 entitled "Time -Share
Developments" to the City of Newport Beach Municipal Code (the "Time -Share
Developments Ordinance "). On March 13, 2007, the City Council adopted
Ordinance No. 2007 -6, entitled "Ordinance Amending Chapter 15.45 of City of
Newport Beach Municipal Code Regarding Development Agreements" (the
"Development Agreement Ordinance "). This Agreement is consistent with the
Time -Share Developments Ordinance and the Development Agreement
Ordinance, which requires the amount payable to the City by any Time -Share
Unit Purchaser for the right of occupancy of any Time -Share Unit to be set forth
in an approved development agreement, which has been determined to be and is
set forth herein as Three Million Dollars ($3,000,000).
J. Consistency with State and Local Laws. This Agreement is consistent with
provisions of State law (California Government Code sections 65864- 65869.5)
and local law (City of Newport Beach Municipal Code Chapter 15.45 and 20.84)
that authorize binding vested rights agreements between the City and persons
having a legal or equitable interest in real property to: (1) encourage investment
in, and commitment to, comprehensive planning and public facilities financing; (2)
strengthen the public planning process and encourage private implementation of
the local General Plan; (3) provide certainty in the approval of projects to avoid
waste of time and resources; and (4) reduce the economic costs of development
by providing assurance to property owners that they may proceed with projects
consistent with existing policies, rules, and regulations during the term of the
vested rights agreements.
K. Findings. In recognition of the significant public benefits that this Agreement
provides, the City Council has found that this Agreement: (1) is consistent with
the City of Newport Beach General Plan as of the date of this Agreement; (2) is
in the best interests of the health, safety, and general welfare of City, its
residents, and the public; (3) is entered into pursuant to, and constitutes a
present exercise of, City's police power; (4) is consistent and has been approved
consistent with the Final Environmental Impact Report for the Project (State
03.02.09 cim 3
Clearinghouse No. 2006121052), which analyzed the environmental effect of the
proposed development of the Project on the Property; and (5) is consistent with
and has been approved in a manner consistent with provisions of California
Government Code section 65867 and City of Newport Beach Municipal Code
Chapters 15.45 and 20.84.
L. Planning Commission Hearing - Recommendation. On November 6, 2008, the
City's Planning Commission held a public hearing to consider the terms and
conditions of this Agreement, made findings and determinations with respect to
this Agreement, and recommended to the City Council that the City Council
approve this Agreement.
M. City Council Hearing - Approval. On February 24, 2009, the City Council also
held a public hearing on this Agreement and considered the Planning
Commission's recommendations and the testimony and information submitted by
City staff, Landowner, and members of the public. On March 10, 2009, pursuant
to the applicable state law (California Government Code sections 65864-
65869.5) and local law (City of Newport Beach Municipal Code Chapters 15.45
and 20.84), the City Council adopted its Ordinance No. 2009 -8, finding this
Agreement to be consistent with the City of Newport Beach General Plan and
approving this Agreement.
AGREEMENT
NOW, THEREFORE, incorporating the Recitals and Exhibits set forth in this Agreement.
City and Landowner agree as follows:
Definitions. The following terms when used in this Agreement shall have the
meanings set forth below:
1.1 "Adopting Ordinances" shall mean:
(a) Ordinance No. 2009 -8 adopted by the City Council on March 10,
2009, approving this Agreement;
(b) Resolution No. 2009 -10 adopted by the City Council on
February 24, 2009 approving Use Permit No. 2005 -046, Parcel
Map No. 2007 -003, and Modification Permit No. 2007 -095;
(c) Resolution No. 2009 -9 adopted by the City Council on February 24,
2009 certifying the EIR as fully compliant with CEQA and the CEQA
Guidelines, adopting all feasible mitigation measures.
1.2 "Agreement" shall mean this Development Agreement.
1.3 "Approval Date" shall mean March 10, 2009, the date on which the City
Council approved the Adopting Ordinances.
03.02.09 dean 4
1.4 "Cancellation" shall have the meaning ascribed in Recital G of this
Agreement.
1.5 "CEQA' shall mean the California Environmental Quality Act (California
Public Resources Code sections 21000 - 21177).
1.6 "CIOSA" shall have the meaning ascribed in Recital B of this Agreement.
1.7 "Cshall mean the City of Newport Beach, a chartered municipal
corporation.
1.8 "Gh-Council" shall mean the governing body of City.
1.9 "Develop shall mean all forms of use of the verb "develop" and the noun
"Development ", whether or not capitalized, means the improvement of the
Property for the purposes of completing the structures, improvements and
facilities comprising the Project including, but not limited to: grading; the
construction of infrastructure and public facilities related to the Project
whether located within or outside the Property; the construction of
buildings and structures; and the installation of landscaping and parking
facilities and improvements. "Develop" or "Development" also includes the
maintenance, repair, alteration, reconstruction or redevelopment of any
building, structure, improvement, landscaping or facility after the initial
construction and completion so long as the work is consistent with the
Project Approvals, Project Conditions, the Development Plan and this
Agreement.
1.10 "Development Fees" shall mean the Time -Share Fee, the Visitor Serving
and Recreational Facilities Fee, the Off -Site Water Quality Fee, and the
Walkway Connection Fee all as set forth in Section 4 of this Agreement.
1.11 "Development Plan" shall mean and constitutes the plan for the
development of the Property, as embodied and stated in the Project
Approvals, Project Conditions and this Agreement.
1.12 "Effective Date" shall mean the date this Agreement is recorded in the
Office of the Orange County Recorder.
1.13 "EIR" shall mean Final Environmental Impact Report (State Clearinghouse
No. 2006121052), prepared for the Project and certified as fully compliant
with CEQA and the CEQA Guidelines by the City Council on the Approval
Date.
1.14 "ENR Index" shall mean the Engineering News Record Construction Cost
Index.
03.02.09 cti= 5
1.15 "Exhibit" shall mean the Exhibits to this Agreement. All Exhibits are
incorporated as a substantive part of this Agreement. The Exhibits to this
Agreement are as follows:
(a) Legal Description of the Property (Exhibit A ;
(b) Map depicting the Property (Exhibit B);
(c) Project Approvals and Project Conditions (Exhibit C).
1.16 "Existing General Regulations" shall mean 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.
1.17 "Fair Share Traffic Contribution Ordinance" shall mean City's Fair Share
Traffic Contribution Ordinance, codified in Chapter 15.35 of City's
Municipal Code, together with resolutions implementing said ordinance.
1.15 "First Time -Share Building Permit" shall mean the first building permit
issued for time -share development on any portion of the Property.
1.19 "Future General Regulations" shall mean those General Regulations
adopted or approved by the City in any way, after the Approval Date.
1.20 "General Plan" shall mean City's 2006 General Plan adopted by the City
Council on July 25, 2006, by Resolution No. 2006 -76 and any
amendments thereto, excluding any amendments after the Approval Date
unless specifically agreed to by Landowner in writing or authorized herein.
The Land Use Plan of the Land Use Element of the General Plan was
approved by City voters in a general election on November 7, 2006.
1.21 "General Regulations" shall mean all laws, ordinances, resolutions, codes,
rules, regulations and official policies of City governing the development
and permitted uses of land, including, without limitation, the permitted use
of land, the density or intensity of use, subdivision requirements, the
maximum height and size of proposed buildings, the provisions for
reservation or dedication of land for public purposes, and the design,
improvement and construction standards and specifications applicable to
the development of the Property and provisions relating to applicable fees,
charges, assessments and levies. General Regulations do not include
any City ordinance, resolution, code, rule, regulation or official policy
identified in or governing the following ( "Governmental Exceptions "):
(a) The provisions of Titles 1, 3, 5, 6, 7, 9, 10, 11, 12, 13, 14, 15 of the
Newport Beach Municipal Code;
03.02.09 Ciao 6
(b) The provision of Title 19 and 20 of the Newport Beach Municipal
Code to the extent Landowner seeks approval from the City to
subdivide any portion of the Single Time -Share Property including,
but not limited to, the subdivision of any of the Time -Share Units
located on the Single Time -Share Property, which future
subdivision is not contemplated, approved or entitled by this
Agreement;
(c) Property taxes and assessments;
(d) The control and abatement of Nuisances (subject to the provisions
of Section 2.5);
(e) The exercise of the power of eminent domain;
(f) The provision of, or charges for, water, sewer, refuse, police, fire
and other municipal services that are generally applicable to all
owners or lessees of commercial property in the City;
(g) The manner in which Property is used that are related to the
amount and time of noise from permitted activities, the use of
alcohol, and the nature and timing of special events; and
(h) The provisions of Chapter 3.16 and 3.28 of the Newport Beach
Municipal Code shall apply to all hotel rooms located at the
Property and to the occupancy of any Time -Share Unit that: (1) is
occupied by any person who is not a Time -Share Unit Purchaser or
a guest of the Time -Share Unit Purchaser, and (2) any portion of a
Time -Share Unit not expressly sold, leased or conveyed to a Time -
Share Unit Purchaser.
1.22 "Governmental Reservations" shall.mean those actions that City may take
that may affect the Project or the operation of the Project, as follows:
(a) Enforcement of the specific provisions, limitations and restrictions
contained in the Project, Project Approvals, Development Plan and
Project Conditions;
(b) Enforcement of the provisions and conditions of this Agreement;
(c) Enforcement of, or pursuant to, Governmental Exceptions or
Governmental Reservations; and
(d) Enforcement of Existing General Regulations.
1.23 " nclude" and all contexts and forms of the words "includes" and
"Including" shall be interpreted to also state "but not limited to."
03.02.09 clan 7
1.24 "Mortgage" shall mean a mortgage, deed of trust, sale and leaseback
arrangement, or any other form of conveyance in which the Property, or a
part or interest in the Property, is pledged as security and contracted for in
good faith and for fair value.
1.25 " Mortgagee" shall mean the holder of a beneficial interest under a
Mortgage or any successor or assignee of the Mortgagee.
1.26 "Off -Site Water Qualitv Fee" shall have the meaning set forth in Section
4.3 of this Agreement.
1.27 "Party' or "Parties" shall mean either City or Landowner or both, as
determined by the context.
1.28 `Project" shall mean the existing and proposed development of the
Property described generally in Recital F and pursuant to, and consistent
with the Project Approvals, consistent with and subject to Project
Conditions, and as described in this Agreement. The Project includes
those improvements existing on the Property as of the Effective Date.
1.29 `Project Approvals" shall mean all approvals, amendments, permits,
licenses, consents, rights and privileges, and other actions required or
authorized to be approved, issued or taken by City in connection with
development of the Property, including but not limited to the following
discretionary actions:
(a) Use Permit No. 2005 -046;
(b) Modification Permit No. 2007 -095;
(c) Parcel Map No. 2007 -003; and
(d) Environmental Impact Report (State Clearinghouse No.
2006121052).
Project Approvals shall also include any Subsequent Approvals
contemplated in this Agreement that are necessary to implement this
Agreement and all discretionary or ministerial permits related to
construction of the Project including grading permits, building permits, and
occupancy permits.
1.30 " Project Conditions" shall mean all conditions to Landowner's right to
proceed with Development pursuant to the Project Approvals, including
the provisions of this Agreement, the mitigation measures identified in the
EIR and adopted by the City Council, conditions to Project Approvals,
Existing General Regulations, Governmental Exceptions and
Governmental Reservations. The Project Conditions. are generally
described in Exhibit C.
03.02.09 Clean 8
1.31 "Pro e "is described in Exhibit A and depicted on Exhibit B.
1.32 "Single Site Time -Share Plan" shall have the meaning set forth in
California Business and Professions Code Section 11212(z)(1).
1.33 "Single Time -Share Property" shall refer to parcel 2 approved by Parcel
Map No. _, the location where Landowner plans to construct the 88
Time -Share Units.
1.34 "Subsequent Approvals" shall mean all Project Approvals granted or
issued by the City subsequent to the Approval Date in connection with
development of the Property.
1.35 "Teo" shall have the meaning ascribed in Section 8 of this Agreement.
1.36 "Time -Share Fee" shall have the meaning set forth in Section 4.1 of this
Agreement.
1.37 "Time -Share Unit" shall mean the specific and defined portion of the
Single Time -Share Property that is divided into time -share intervals and
sold, leased or conveyed to a Time Share Unit Purchaser.
1.38 "Time -Share Unit Purchaser" shall mean a person who has received a
right in perpetuity, for life, or for a term of years, to the recurrent, exclusive
use or occupancy of Time -Share Unit annually or on some other seasonal
or periodic basis, for a fixed period of time that has been or will be allotted
from the use or occupancy periods into which the Project has been
divided.
1.39 "Time -Share Use" shall mean a right to occupy a Sing leTime -Share
Property by a Time -Share Unit Purchaser, which right is neither coupled
with a freehold interest, nor coupled with an estate for years with a future
interest in a Single Time -Share Property.
1.40 "Vested Entitlement" or "Entitlement" refers to the development rights
granted Landowner pursuant to this Agreement and the Project Approvals
that are subject to Project Conditions.
1.41 "Visitor Serving and Recreational Facilities Fee" shall have the meaning
set forth in Section 4.2 of this Agreement.
1.42 "Walkway Connection Fee" shall have the meaning set forth in Section 4.4
of this Agreement.
2. Development of Propertv.
2.1 Development Program. This Agreement vests. Landowner's right to
proceed with the development described in the Project Approvals,
Development Plan and this Agreement. Landowner also acknowledges
03.02.09 Clean 9
and agrees that its right to proceed with the Vested Entitlement is subject
to the Project Conditions. The Parties also expressly acknowledge and
agree that this Agreement does not vest Landowner with the right to
subdivide the Single Time -Share Property (or portion thereof) including,
but not limited to, any of the Time -Share Units located on the Single Time -
Share Property and that any proposal to subdivide the Single Time -Share
Property (or portions thereof) including, but not limited to, any of the Time -
Share Units located on the Single Time -Share Property would require an
Amendment of this Agreement. Landowner acknowledges that City grants
no assurance that Landowner will receive necessary permits or approvals
from any other public agency with jurisdiction over the Project or that
Project Approvals will not be subject to and affected by legal or other
challenges or procedures initiated by third parties.
(a) Permitted Uses. The Property shall be used and developed only in
the manner provided in the Project Approvals, the Development
Plan and this Agreement and shall be subject to the Project
Conditions. City acknowledges that, from time -to -time, Landowner
may seek and obtain, in accordance with applicable provisions of
State and local law, minor amendments to the Development Plan
and the Project Approvals. The Planning Director of the City
("Planning Director') shall determine, subject to appeal by
Landowner to the Planning Commission, whether a proposed
amendment is a "minor amendment' for purposes of this
Agreement. A minor amendment is one that does not materially
modify, alter or change a material term of this Agreement and one
that does not increase trips, noise or other environmental impacts
associated with Project Approvals or the Development Plan. City
acknowledges that the tentative parcel map may require corrections
or amendments prior to the approval and recording of a final parcel
map. The tentative parcel map may be amended or corrected
provided that Landowner complies with the applicable procedures
set forth in Title 19 and this Agreement. City may impose standard
conditions of approval on any subdivision or resubdivision
requested by Landowner and authorized by this Agreement, so
long as the condition(s) do not reduce the permitted density or
intensity, or substantially increase the cost of the development,
allowed in the Project Approvals and described in the Development
Plan.
(b) Permitted Density of Development. Landowner shall have the
vested right to develop the Property consistent with the permitted
density and level of intensity authorized by the Project Approvals,
Development Plan and this Agreement, subject to the Project
Conditions. City shall not impose any condition on any Project
Approval that reduces the permitted density and level of intensity
allowed in the discretionary Project Approvals.
03.02.09 Clean 10
(c) Maximum Height and Size of Structures. Landowner shall have the
vested right to develop the Property with the maximum height and
size of structures as set forth in the Development Plan and the
Project Approvals.
2.2 Compliance with Project Conditions. Landowner acknowledges that City
Council approval of the Project Approvals, the Development Plan and this
Agreement is subject to compliance with the Project Conditions. The
Project Conditions are, among other things, designed to minimize or
eliminate any adverse impacts of the Project and protect and enhance the
environment. In certain instances, the Project Conditions exceed those
that might otherwise be appropriate under "nexus" and "rough
proportionality" tests articulated by the courts. By entering into this
Agreement, Landowner agrees to be bound by, and waives any protest of,
any Project Conditions. Any Project Conditions imposed by the City after
the Effective Date shall be consistent with the Project Approvals,
Development Plan and this Agreement.
2.3 Compliance with General Regulations. Landowner shall comply with the
Existing General Regulations. Except as otherwise specified in this
Agreement, Landowner shall not be obligated to comply with any Future
General Regulations that are in conflict with the Development Plan or this
Agreement, Any Future General Regulation(s) that are inconsistent with
this Agreement and/or the Development Plan and which do not fall within
the definition of Governmental Reservations or Governmental Exceptions
shall not be applicable to the development or use of the Property. With
respect to Existing General Regulations that require the payment of fees,
costs, and expenses, the applicable fee, cost, or expense shall be that in
effect on the Approval Date subject to any increases or decreases
authorized by the text of the Existing General Regulation as of the
Approval Date. Landowner shall, however, comply with any Future
General Regulation that does not impair or affect its ability to develop the
Property in accordance with the Development Plan or impact the
development of the Property at the cost, rate, timing and sequencing that
the Landowner deems appropriate. Landowner shall also comply with all
provisions of the Uniform Codes including, but not limited to, building, fire,
plumbing, mechanical, swimming pool, and electrical, whether adopted
before or after the Approval Date by the City, which are In effect at the
time applications for specific Project Approvals are submitted.
2.4 No Conflicting Enactments. Except to the extent City reserves its
discretion as expressly set forth in this Agreement, during the Term of this
Agreement City shall not apply to the Project any ordinance, policy, rule,
regulation, or other measure relating to development of the Project that is
enacted or becomes effective after the Approval Date to the extent it
conflicts with this Agreement. This Section shall not restrict City's ability to
enact an ordinance, policy, rule, regulation, or other measure applicable to
03.02.09 Om 11
the Project pursuant to California Government Code section 65866. In
Pardee Construction Co. v. City of Camarillo (1984) 37 Cal.3d 465, the
California Supreme Court held that a construction company was not
exempt from a City's growth control ordinance even though the City and
construction company had entered into a consent judgment (tantamount to
a contract under California law) establishing the company's vested rights
to develop its property consistent with the zoning. The California Supreme
Court reached this result because the consent judgment failed to address
the timing of development. The Parties intend to avoid the result of the
Pardee case by acknowledging and providing in this Agreement that
Landowner shall have the vested right to develop the Property at the rate,
timing, and sequencing that Landowner deems appropriate within the
exercise of Landowner's sole subjective business judgment provided that
such development occurs in accordance with this Agreement and the
Development Regulations, notwithstanding adoption by City's electorate of
an initiative to the contrary after the Approval Date. No City moratorium or
other similar limitation relating to the rate, timing, or sequencing of the
development of the Property or construction of all or any part of the
Project and whether enacted by initiative or another method, affecting
subdivision maps, use permits, modifications, EIR certification, terms of
this Agreement, building permits, occupancy certificates, or other
entitlement to use, shall apply to the Project to the extent such moratorium
or other similar limitation restricts Landowner's vested rights in this
Agreement or otherwise conflicts with the express provisions of this
Agreement.
2.5 Public Health and Safety /Uniform Codes. This Agreement shall not
prevent the' City from adopting, and applying to the Project, Future
General Regulations, including Uniform Codes (as referred to above), that
are based on recommendations of a multi -state professional organization
relating to the specifications for the constructions of improvements
( "Building Codes ") and become applicable throughout the City. This
Agreement shall not prevent the City from adopting, and applying to the
Project, conditions inconsistent with the Development Plan or Project
Approvals, when the conditions are adopted by the City Council after a
noticed public hearing and pursuant to a determination by the City Council
that the conditions are necessary to abate a public nuisance (Nuisance).
In no event shall the City impose any condition pursuant to a
determination of Nuisance unless the Landowner has been given notice
of, and the right to present evidence at, a public hearing. Any
determination of Nuisance, and the rational relationship between the
Nuisance and the conditions imposed, must be supported by substantial
evidence in the record of the hearing.
2.6 Police Power. In all respects not provided for in this Agreement, City shall
retain full rights to exercise its police power to regulate the development of
the Property. Any uses or developments requiring a use permit, tentative
03.02.09 Cl a 12
tract or parcel map, modification, EIR certification, or other discretionary
permit or approval in accordance with the Existing Development
Regulations or Future Development Regulations shall require a permit or
approval pursuant to this Agreement, and, notwithstanding any other
provision set forth herein, this Agreement is not intended to vest
Landowner's right to the issuance of such permit or approval nor to restrict
City's exercise of discretion with respect thereto, provided that pursuant to
Government Code section 65865.2, "such conditions, terms, restrictions,
and requirements for subsequent discretionary actions shall not prevent
development of the land for the uses and to the density or intensity of
development" set forth in this Agreement. Not by way of limitation of the
foregoing, it is specifically understood that City reserves the right to
amend, pursuant.to procedures provided by law and this Agreement, City
laws, rules, regulations, and policies applicable to the Property as to which
Landowner's rights are not expressly vested and such amendment or
amendments shall be binding on the Property except to the extent that the
same conflict with the express provisions of this Agreement.
2.7 Public Works Improvements. To the extent Landowner constructs or
installs public works or facilities, the City standards in effect for such public
works or facilities at the time of City's issuance of a permit, license, or
other authorization for construction or installation of same shall apply.
2.8 Overriding Federal and State Laws and Regulations. Federal and state
laws and regulations that override Landowner's vested rights set forth in
this Agreement shall apply to the Property, together with any City
ordinances, resolutions, regulations, and official policies that are
necessary to enable City to comply with the overriding federal and state
laws and regulations, provided that:
(a) Landowner does not waive its right to challenge or contest the
validity of any such federal, state, or local laws, regulations, or
official policies; and
(b) Upon the discovery of a federal or state law or regulation (or City
ordinance, resolution, regulation, or official policy undertaken
pursuant to those laws and regulations), that prevents or precludes
compliance with any provision of this Agreement, City or
Landowner shall provide the other Party with written notice of the
state or federal law or regulation, provide a copy of the law or
regulation, and a written statement of conflict(s) with the provisions
of this Agreement. Promptly thereafter City and Landowner shall
meet and confer in good faith in a reasonable attempt to determine
whether a modification or suspension of this Agreement, in whole
or in part, is necessary to comply with such federal or state law or
regulation. In such negotiations, City and Landowner agree to
preserve the terms of this Agreement and the rights of Landowner
as derived from this Agreement to the maximum feasible extent
03.02.09 cr= 13
while resolving the conflict. City agrees to cooperate with
Landowner at no cost to City in resolving the conflict in a manner
which minimizes any financial impact of the conflict upon
Landowner. City also agrees to process in a prompt manner
Landowner's proposed changes to the Project and any of the
Development Regulations as may be necessary to comply with
such federal or state law; provided, however, that the approval of
such changes by City shall be subject to the discretion of City,
consistent with this Agreement.
2.9 Procedural Regulations. Procedural regulations relating to hearing
bodies, petitions, applications, notices, findings, records, hearings,
reports, recommendations, appeals, and any other matter of procedure
shall apply to the Property, provided that they are adopted and applied
City -wide or to all other properties similarly situated in City.
3. Benefits to Owner.
3.1 Right to Develop. Except to the extent City reserves its discretion as
expressly set forth in this Agreement, during the term of this Agreement,
Landowner shall have a vested right to develop, and receive building and
occupancy permits for construction on the Property to the full extent
permitted by this Agreement, the Project Approvals and the Development
Plan, subject to the Project Conditions. City shall only take action with
respect to the Property that complies and is consistent with the Project
Approval and the Development Plan unless Landowner gives its written
consent to the action or City is permitted to take the action pursuant to this
Agreement. Where applicable, Landowner may refuse to grant consent in
Landowner's sole and absolute discretion. City shall not impose or
increase any condition or requirement (whether in the form of a fee, tax,
requirement for dedication or reservation of and, or any other type of
exaction) on the Project, except as expressly permitted by this Agreement,
Existing General Regulations, Governmental Reservations or
Governmental Exceptions. However, City may impose or increase a
condition or requirement when such action is required (as opposed to
permitted) by state or federal law and then only to the minimum extent and
duration necessary to comply with state or federal law. Except as
otherwise provided by this Agreement, the ordinances, plans, resolutions,
and policies governing the permitted use and development of the Property
shall be those described in the Project Approvals and the Development
Plan. The Parties acknowledge that the vested rights described in this
Section provide that Landowner has a vested right to develop the following
improvements on the Property, all as described in the Project Approvals
and the Development Plan and subject to the Project Conditions:
(a) Construct 88 Time -Share Units within seven building on the Single
Time -Share Property to be governed by a Single Site Time -Share
Plan and which will allow the Landowner to sell, lease or otherwise
03.02.00 Clean 14
convey a Time -Share Use interests in the Single Time -Share
Property (provided that the total number of Time Share Units and
hotel rooms does not exceed a combined total of 479 Time Share
Units /hotel rooms);
(b) Construct a new 800 -seat ballroom facility;
(c) Construct a new 10,072 square -foot spa and fitness center,
including a new outdoor pool facility;
(d) Construct a new housekeeping and engineering building; and
(e) Construct a new two -level parking garage.
3.2 Benefits to Landowner. Landowner has expended and will continue to
expend substantial amounts of time and money on the planning of the
Project and construction of infrastructure for and in conjunction with the
Project. Landowner represents and City acknowledges that Landowner
would not make these expenditures without this Agreement, and that
Landowner makes these expenditures in reliance upon this Agreement. A
benefit to Landowner under this Agreement is the assurance that
Landowner will preserve the right to develop the Property in accordance
with the terms of this Agreement. City acknowledges that Landowner will
be investing money and planning efforts in the Project in reliance on City's
covenants and representations in this Agreement. City agrees that
Landowner may reasonably and justifiably rely on City's covenants and
representations in this Agreement and on the enforceability of this
Agreement.
3.3 Reservations or Dedications of Land. Except as may be provided in the
Project Approvals, Project Conditions, Development Plan or this
Agreement, no dedications or reservations of all or a portion of the
Property shall be required of Landowner in conjunction with the application
or issuance of any Project Approval authorizing development,
construction, use, or operation of the Property.
3.4 No Additional Traffic Related Fees or Conditions. Under CIOSA,
Landowner has paid all required fair share traffic fees required to be paid
under the Fair Share Traffic Contribution Ordinance. City shall not impose
any traffic- related fee, charge, dedication, or improvement relative to, or
as a condition to, development of the Project except as provided in this
Agreement, the Project Approvals or Project Conditions.
3.5 Time for Construction and Completion of Proiect. Landowner shall have
the right to develop the - Project in the manner and at the time that
Landowner deems appropriate in the exercise of its business judgment.
The Parties acknowledge that Landowner cannot predict the timing of the
development of the Project because of numerous factors not within the
03.02.09 crm 15
control of Landowner, such as market demand, economic conditions,
interest rates and competition.
3.6 Tentative Maps.
(a) Improvement Security. As a condition of approving a final
subdivision map or any future resubdivision for all or a portion of
the Property as authorized by this Agreement, the City may require
the furnishing of appropriate and reasonable improvement
agreements and security pursuant to the Municipal Code and the
Subdivision Map Act. Nothing in this Agreement shall be construed
as altering or relieving Landowner of any obligation imposed
pursuant to the Municipal Code or the Subdivision Map Act. The
improvement requirements, exactions or other conditions of
approval of a subdivision map, parcel map or lot line adjustment
shall be consistent with this Agreement but City may impose
standard conditions of approval generally applicable to similar
projects subject to the provisions Section 2.1(b).
(b) Expiration. Any current or future tentative maps for resubdivision of
the Property shall expire concurrently with the termination of this
Agreement or after the maximum period for the expiration of
tentative maps authorized by Government Code Section 66452.6,
whichever is later. Should the time periods authorized by
Government Code Section 66452.6 be lengthened after the
execution of this Agreement, Landowner shall be entitled to further
extensions of any tentative subdivision map applicable to the
Property, to the maximum extent authorized by law.
(c) Adiustments. The Parties acknowledge that lot line adjustments, or
similar modifications may be necessary to develop the Project and
are contemplated by this Agreement. These modifications or
adjustments shall be approved provided they are in substantial
conformance with the Development Plan and the Project Approvals.
(d) Time -Share Units. The Parties acknowledge and agree that the
subdivision of the Single Time -Share Property (or any portion
thereof) including, but not limited, any of the Time -Share Units
located on the Single Time -Share Property is not contemplated,
authorized or entitled by this Agreement and would require an
Amendment of this Agreement.
3.7 Processing and Issuance of Permits.
(a) Processing of Permits. As a material term of this Agreement
benefiting Landowner, the City shall promptly accept for
processing /review, and expeditiously approve, permit applications
for the development and use of the Property that are in substantial
03.02.09 ct= 16
conformance with the Project Approvals, Development Plan,
Existing General Regulations, and this Agreement.
(b) Issuance of Ministerial Proiect Approvals. City shall issue to
Landowner all necessary use, building, occupancy, and other
permits and approvals upon request, provided that applications are
submitted in accordance with the Existing General Regulations and
are in substantial conformance with the Project Approvals,
Development Plan and this Agreement.
(c) Vesting of Project Approvals. Any permit, license or approval
issued pursuant to this Agreement shall be vested and deemed a
Project Approval when granted.
3.8 Future Approvals. The future approval or issuance of any Project
Approval that is determined by the Planning Director to be a minor
amendment as provided in Section 2.1(a) shall not require an amendment
of this Agreement.
4. Fees.
4.1 Time -Share Development. For the vested right to construct the 88 Time -
Share Units on the Single Time -Share Property, which vested right is
subject to the terms and conditions contained in this Agreement and the
Project Conditions, Landowner shall pay Three Million Dollars
($3,000,000) ( "Time -Share Fee ") to the City. The Time -Share Fee shall
be paid at the time the First Time -Share Building Permit is issued by the
City. Beginning two years after the Effective Date of this Agreement and
every year thereafter for the Tenn of this Agreement or until the Time -
Share Fee is paid in full, the amount of the Time -Share Fee shall be
adjusted in accordance with Section 4.5.
4.2. Visitor Serving and Recreational Facilities — Marina Park Mar
Landowner shall pay to City the sum of Two Million Dollars ($2,000,C
( "Visitor Serving and Recreational Facilities Fee ") to be paid as follows:
• Five Hundred Thousand Dollars ($500,000) at the time the final
parcel map for the Project is recorded or June 30, 2013, if any
building permit for the construction of any time -share is issued for
the Project, whichever is sooner.
• One Million Dollars ($1,000,000) at the time the City issues the
Certificate of Occupancy for the Ballroom or June 30, 2013, if any
building permit for the construction of any time -share is issued for
the Project, whichever is sooner.
• Five Hundred Thousand Dollars ($500,000) at the time the First
Time -Share Building Permit is issued.
03.02.09 Clean 17
The Visitor Serving and Recreational Facilities Fee shall be used by City
for improvements that provide visitor serving or recreational facilities either
at Marina Park Marina or at any other site designated by City in City's sole
discretion. The Visitor Serving and Recreational Facilities Fee may be
used by City to provide public access to Newport Bay, public parking,
picnic areas, playground equipment, basketball and tennis courts,
concessions, recreational programs or any other visitor serving or
recreational use. Should the California Coastal Commission require
mitigation in the form of a monetary contribution to support the provision of
visitor serving uses in the City's coastal zone as a condition of approval of
the coastal development permit issued for the Project, all said monetary
contributions that are expressly allocated to Marina Park Marina for visitor
serving uses shall be applied by City to off -set and provide a credit against
the Visitor Serving and Recreational Facilities Fee. Because the specific
improvements that will be selected by City are not known at this time, City
shall have the responsibility to conduct all appropriate environmental
review as required by state or federal law, and to implement any identified
mitigation measures. City shall have the responsibility to obtain any and
all state and federal permits and approvals that may be required for
construction, operation and maintenance of the Visitor Serving and
Recreational Facilities. Beginning two years after the Effective Date of
this Agreement and every year thereafter for the Term of this Agreement
and until the Visitor Serving and Recreational Facilities Fee is paid in full,
the amount of the Visitor Serving and Recreational Facilities Fee shall be
adjusted with Section 4.5.
4.3 Off-Site Water Quality Improvements. City and the Landowner have
agreed that water quality improvements beyond those required for the
Project's Water Quality Management Plan would be of benefit to the City,
its residents and visitors to the City. Landowner has agreed to pay to the
City the sum of One Million Dollars ($1,000,000) for off -site water quality
improvements ( "Off -Site Water Quality Fee'). This Off -Site Water Quality
Fee shall be paid at the time the final parcel map for the Project is
recorded or June 30, 2013, if any building permit for the construction of
any time -share is issued for the Project, whichever is sooner. The City
shall use the Off -Site Water Quality Fee to pay for water quality
improvements to be selected by the City in the City's sole discretion.
Because the specific improvements that will be selected by the City are
not known at this time, the City shall have the responsibility to conduct all
appropriate environmental review as required by state or federal law, and
to implement any identified mitigation measures. The City shall have the
responsibility to obtain any and all state and federal permits and approvals
that may be required in order to implement the Off-Site Water Quality
improvements, including but not limited to coastal development permits
and Clean Water Act permits that may be required for construction,
operation and maintenance of the water quality improvements. Beginning
two years after the Effective Date of this Agreement and every year
03.02.09 Clean 18
thereafter for the Term of this Agreement and until the Off -Site Water
Quality Fee is paid in full, the amount of the Off -Site Water Quality Fee
shall be adjusted in accordance with Section 4.5.
4.4 Bayfront Walkway Connection. Landowner shall pay to the City at the
time of execution of this Agreement by the Parties the sum of One
Hundred Thousand Dollars ($100,000) to be used by the City towards a
public improvements project that increase access to the bayfront
("Walkway Connection Fee ") including, but not limited to, projects such as
the Marine Avenue Bridge Bayside Drive Bayfront walkway connection.
Because the speck improvements that will be selected by the City, in its
sole discretion, are not known at this time, the City shall have the
responsibility to conduct all appropriate environmental review as required
by state or federal law, and to implement any identified mitigation
measures. The City shall have the responsibility to obtain any and all
state and federal permits and approvals that may be required in order to
implement the the public improvements.
4.5 ENR Index. Beginning two years after the Effective Date of this
Agreement, and every year on the anniversary date of the Effective Date
thereafter ( "generally referred to herein as the "Adjustment Date "), any
unpaid portion of each of the Time -Share Fee, the Visitor Serving and
Recreational Facilities Fee, and the Off -Site Water Quality Fee (including
prior year increases to the Time -Share Fee, the Visitor Serving and
Recreational Facilities Fee, and the Off -Site Water Quality Fee made
pursuant to this Section which remain unpaid) shall be increased in
proportion to changes in the ENR Index. Such adjustment to the Time -
Share Fee, the Visitor Serving and Recreational Facilities Fee, and the
Off -Site Water Quality Fee shall be made on the Adjustment Date by
multiplying the unpaid portion of each of the Time -Share Fee, the Visitor
Serving and Recreational Facilities Fee, and the Off -Site Water Quality
Fee (including prior year increases to the Time -Share Fee, the Visitor
Serving and Recreational Facilities Fee, and the Off -Site Water Quality
Fee made pursuant to this Section which remain unpaid) by a fraction, the
numerator of which is the value of the ENR Index for the calendar month
preceding the Adjustment Date and the denominator of which is the value
of the ENR Index for the same calendar month one year prior to the
Adjustment Date. However, in no event shall the amount of Time -Share
Fee, the Visitor Serving and Recreational Facilities Fee, and the Off -Site
Water Quality Fee be reduced below the amount of the Time -Share Fee,
the Visitor Serving and Recreational Facilities Fee, and the Off -Site Water
Quality Fee (including prior year increases to the Time -Share Fee, the
Visitor Serving and Recreational Facilities Fee, and the Off -Site Water
Quality Fee made pursuant to this Section which remain unpaid) in effect
immediately preceding such adjustment.
03.02.0 Clem 19
4.6 Development Fees. During the Term of this Agreement, the
"Development Fees" shall be the Time -Share Fee, the Visitor Serving and
Recreational Facilities Fee, the Off -Site Water Quality Fee, and Walkway
Connection Fee as set forth in Sections 4.1, 4.2, 4.3 and 4.4 and subject
to increase as provided in Section 4.5. City shall retain the right to
increase the Development Fees or impose other monetary exactions
charged by City in connection with a development project for the purpose
of defraying all or a portion of the cost of public facilities related to
development of the Project as it may adopt, and whatever applicable rate
City may adopt, to any development of the Property beyond the
development of the Property contemplated by this Agreement. The
Parties acknowledge that for purposes of this Agreement, the term
Development Fees is limited to the Time -Share Fee, the Visitor Serving
and Recreational Facilities Fee, the Off -Site Water Quality Fee, and
Walkway Connection Fee as set forth in Sections 4.1, 4.2, 4.3 and 4.4 and
subject to increase as provided in Section 4.5 and that all other fees,
taxes, and charges do not constitute Development Fees and that nothing
in this Agreement is intended or shall be construed to release Landowner
from the obligation to pay such fees, taxes, and charges, including
increases, if and when they become due including, but not limited to, the
following:
(a) City's normal fees for processing, environmental assessment and
review, tentative tract and parcel map review, plan checking, site
review and approval, administrative review, building permit, grading
permit, inspection, and similar fees imposed to recover City's costs
associated with processing, reviewing, and inspecting project
applications, plans, and specifications;
(b) Fees and charges levied by any other public agency, utility, district,
or joint powers authority, regardless of whether City collects those
fees and charges;
(c) Taxes and fees set forth in Chapter 3 of the Newport Beach
Municipal Code including, sales and use taxes, Property
Development Taxes under Section 3.12 of City's Municipal Cade
and Transient Occupancy Taxes set forth in Chapter 3.16 and
Visitor Service Fee as set forth in Chapter 3.28 of the Newport
Beach Municipal Code which shall apply to all hotel rooms located
at the Property and to the occupancy of any Time -Share Unit that:
(1) is occupied by any person who is not a Time -Share Unit
Purchaser or a guest of the Time -Share Unit Purchaser; and (2)
any portion of a Time -Share Unit not expressly sold, leased or
conveyed to a Time -Share Unit Purchaser, and
(d) Community facility district special taxes or special district
assessments or similar assessments, business license fees, bonds
or other security required for public improvements, property taxes,
03.02.09 Cis 20
sewer lateral connection fees, water service connection fees, and
new water meter fees.
This Agreement does not authorize Landowner to transfer any fees paid or
fee credits to any other property outside the Property that is the subject of
this Agreement. Once the Term of this Agreement has ended, Landowner
shall not receive any credit for future planned development of the Property
based on the fees paid pursuant to this Agreement.
4.7 Permitted Increases in Development Fees Applicable to Property. During
the Term of this Agreement, City shall not increase the amount of the
Time -Share Fee, the Visitor Serving and Recreational Facilities Fee, the
Off -Site Water Quality Fee, or Walkway Connection Fee except as set
forth in Sections 4.1, 4.2, 4.3, 4.4 and 4.5.
This Agreement does not vest Landowner against increases in any other
fees other than Development Fees that are payable by Landowner,
including without limitation the Property Development Tax referred to in
subparagraph (c) of Section 4.6.
5. CIOSA.
5.1 Cancellation of CIOSA. Pursuant to the ordinance adopted by the City
Council approving this Agreement, the CIOSA shall automatically
terminate on the Effective Date ( "Cancellation "). The Parties shall
cooperate in executing and recording against the Property a written
instrument memorializing the termination of said agreement in such form
as to permit the CIOSA to be removed as an encumbrance upon title. The
Cancellation shall not affect the rights and obligations of any third parties
under the CIOSA.
5.2 Maintenance of CIOSA Pre -Paid Transportation Fund. The Cancellation
referred to in Section 5.1 terminates the Parties' remaining rights and
obligations under the CIOSA, including any obligation of City to repay
Landowner for funds that Landowner provided pursuant to the CIOSA. In
connection therewith, Landowner agrees that City may retain any balance
of pre -paid transportation funds City may be holding as a result of unused
CIOSA mitigation. City may use any such remaining balance of prepaid
transportation funds for transportation improvements in accordance with
the Protocol Agreement for the Circulation Improvement and Open Space
Agreement dated December 11, 1995, and the Protocol Agreement
Memorandum dated December 11, 2001.
5.3 No Pavments Due from Citv. The Parties acknowledge that City is not
required to make any reimbursement payments to Landowner and that no
funding is otherwise due from City to Landowner for improvements under
CIOSA made by or at the direction of Landowner including, but not limited
03.02.09 Glean 21
to, improvements to Back Bay View Park, located at Jamboree Road and
Pacific Coast Highway.
6. Sales Tax.
6.1 Proiect Construction. Landowner will include in its general contractor
construction contract a provision that Landowners general contractor and
subcontractors, to the extent allowed by applicable law, will obtain a Board
of Equalization sales/use tax subpermit for the jobsite for the Project at the
Property and allocate all eligible sales and use tax payments for individual
contracts over $5 million to the City. Landowner will provide Landowners
general contractor and subcontractors with the name and contact
information of the City's Revenue Manager and notice of the Revenue
Managers availability to meet and confer with them on the implementation
of the Board of Equalization sales /use tax subpermit procedures.
Landowner will further include a notice in its general contractor
construction contract that prior to beginning a qualified construction
project, the general contractor and subcontractors are encouraged to meet
with the City's Revenue Manager to review the process to be followed with
respect to sales and use taxes. Landowner will further include a provision
in its general contractor construction contract that the general contractor
or subcontractors will certify in writing that the person(s) responsible for
filing the tax return understands the process of reporting the tax to the City
and will follow the guidelines set forth in the relevant sections of the Sales
and Use Tax Regulations. Landowner shall not be responsible for failure
of Landowners general contractor or subcontractors to follow the
procedures set forth in this Section. Landowner, if readily available, shall
provide to the City or any City designated representative the names,
addresses, phone numbers and contact name of the general contractor
and all subcontractors.
6.2 Direct Payment Process. Landowner will follow the Direct Payment Permit
Process established in the Revenue and Taxation Code and use the
permit for all qualifying individual purchases in excess of $100,000 so that
the local share of its sales /use tax payments is allocated to the City as the
point of sale.
6.3 Fixtures. Materials and Equipment. It is understood and agreed that any
fixtures, materials and equipment with a purchase total that exceeds
$100,000 purchased directly by Landowner and shipped to Landowners
Newport Beach location may also be eligible for direct allocation of
sales/use tax to the City. Upon request of the City, Landowner will provide
City on a semi - annual basis with a list of purchases exceeding the
$100,000 threshold during the preceding six -month period, including the
amount of the purchase and, if readily available, the name and contact
information for the vendor upon request by the City. The City agrees to
review the semi - annual list of purchases made by Landowner and advise
Landowner of any missed opportunities for direct allocation. Landowner
03.02.09 Cim 22
agrees to file its Direct Payment Permit with vendors identified by the City
in an effort to improve the direct allocation of the local share of salestuse
tax payments in future periods.
7. Protect as Private Undertaking. The development of the Project is a private
undertaking. Neither Party is acting as the agent of the other in any respect, and
each Party is an independent contracting entity with respect to the terms,
covenants, and conditions contained in this Agreement. This Agreement forms
no partnership, joint venture, or other association of any kind. The only
relationship between the Parties Is that of a government entity regulating the
development of private property by the owner of the property.
8. Effective Date: Terre. The terra of this Agreement ( "Term ") shall commence on
the Effective Date and shall continue thereafter until the earlier of the following:
(1) July 1, 2013; or (ii) the date this Agreement is terminated pursuant to Sections
9 or 12 of this Agreement.
9. Amendment or Cancellation of Agreement. This Agreement may be amended or
canceled in whole or in part only by mutual written and executed consent of the
Parties in compliance with California Government Code Section 65868 and City
of Newport Beach Municipal Code Section 15.45.070 or by unilateral termination
by City in the event of an uncured default of Landowner pursuant to Section 12.1
of this Agreement.
10. Enforcement. Unless amended or canceled as provided in Section 9 of this
Agreement, or modified or suspended pursuant to California Government Code
Section 65869.5, this Agreement is enforceable by either Party despite any
change in any applicable general or specific plan, zoning, subdivision, or building
regulation or other applicable ordinance or regulation adopted by City (including
by City's electorate) that purports to apply to any or all of the Property.
11. Periodic Review of Compliance. The Parties shall review this Agreement at least
once every 12 months from the Effective Date consistent with California
Government Code Sections 65865 and 65865.1 and City of Newport Beach
Municipal Code Section 15.45.080 ( "Annual Review"). At the Annual Reviews,
Landowner shall demonstrate its good faith compliance with the terms and
conditions of this Agreement. Landowner also agrees to furnish evidence of
good faith compliance as City may require in the reasonable exercise of its
discretion and after reasonable notice to Landowner. The City's or Landowner's
failure to conduct an Annual Review shall not constitute or be asserted by either
Party as a Default under this Agreement.
12. Events of Default.
12.1 Default by Landowner. Pursuant to California Government Code Section
65865.1, if City determines following a noticed public hearing and on the
basis of substantial evidence that Landowner has not complied in good
faith with Landowner's material obligations pursuant to this Agreement,
03.02.09 Clean 23
City shall by written notice to Landowner specify the manner in which
Landowner has failed to comply and state the steps Landowner must take
to bring itself into compliance. If Landowner does not commence all steps
reasonably necessary to bring itself into compliance as required and
diligently pursue steps to completion within forty -five (45) calendar days
after receipt of the written notice from City specifying the manner in which
Landowner has failed to comply, then Landowner shall be deemed to be in
default under the terms of this Agreement. City may then: (1) seek a
modification of this Agreement; (2) terminate this Agreement; or (3) seek
any other available remedies as provided in this Agreement.
12.2 Default by Citv. If City has not complied with any of its obligations and
limitations under this Agreement, Landowner shall by written notice to City
specify the manner in which City has failed to comply and state the steps
necessary for City to bring itself into compliance. If City does not
commence all steps reasonably necessary to bring itself into compliance
as required and diligently pursue steps to completion within forty -five (45)
calendar days after receipt of the written notice from Landowner specifying
the manner in which City has failed to comply, then City shall be deemed
to be in default under the terms of this Agreement. Landowner may then
exercise any or all of the following remedies: (1) withhold payments that
might be otherwise due to City under this Agreement; and /or (2) seek a
speck performance or similar equitable remedy including the return of
any fees paid under Section 4 as provided in this Agreement.
12.3 Specific Performance and Damages Remedies. Due to the size, nature,
and scope of the Project and the potential impracticality or impossibility of
restoring the Property to its natural condition once implementation of this
Agreement has begun, the Parties acknowledge that, except as provided
in this Section 12.3 and Section 12.4 of this Agreement, money damages
and remedies at law generally are inadequate and that specific
performance is appropriate for the enforcement of this Agreement. The
remedy of specific performance or, in the alternative, a writ of mandate,
shall be the sole and exclusive remedy available to either Party in the
event of the default or alleged default by the other, with the exception that
City shall be entitled to damages against Landowner for Landowner's
breach of its obligations under Sections 4.1, 4.2, 4.3, 4.4, 4.5, 15 or 16.
The limitations on the remedy of damages in this Agreement shall not
prevent City from enforcing Landowner's monetary obligations hereunder
including, but not limited to, the monetary obligations of Landowner set
forth in Sections 4.1, 4.2, 4.3, 4.4 and 4.5 of this Agreement.
12.4 Limited Recovery of Legal Expenses by Prevailing Party in Anv Action. In
any judicial proceeding, arbitration, or mediation (collectively, "Action ")
between the Parties that seeks to enforce the provisions of this
Agreement, the prevailing Party shall recover all of its reasonable costs
and expenses, regardless of whether they would be recoverable under
03.02.09 Om 24
California Code of Civil Procedure Section 1033.5 or California Civil Code
Section 1717 in the absence of this Agreement. These costs and
expenses include expert witness fees, attorneys' fees, and costs of
investigation and preparation before initiation of the Action. The right to
recover these costs and expenses shall accrue upon initiation of the
Action, regardless of whether the Action is prosecuted to a final judgment
or decision.
13. Cooperation. Each Party covenants to take reasonable actions and execute all
documents that may be necessary to achieve the purposes and objectives of this
Agreement.
14. Force Maleure. Neither Party shall be deemed to be in default where failure or
delay in performance of any of its obligations under this Agreement is caused,
through no fault of the Party whose performance is prevented or delayed, by
floods, earthquakes, other acts of God, fires, wars, riots or similar hostilities,
strikes or other labor difficulties, state or federal regulations, or court actions.
Except as specked above, nonperformance shall not be excused because of the
act or omission of a third person. In no event shall the occurrence of an event of
force majeure operate to extend the Term of this Agreement.
15. Indemnity. Landowner agrees to indemnify, defend, and hold harmless City,
City's designee, and their respective elected and appointed councils, boards,
commissions, officers, agents, attorneys, and employees from all actions, suits,
claims, liabilities, losses, damages, penalties, obligations, and expenses
(including but not limited to attorneys' fees and costs) that may arise, directly or
indirectly, from the acts, omissions, or operations of Landowner or Landowners
agents, contractors, subcontractors, agents, or employees pursuant to this
Agreement. City shall have the right to select and retain counsel to defend any
actions, and Landowner shall pay the reasonable cost for this defense. The
indemnity provisions in this Section 15 shall survive termination of this
Agreement.
16. Third Party Legal Challenge. Landowner shall defend, indemnify, release and
hold harmless the City, its elected officials, boards, commissions, employess and
attorneys ( "Indemnified Parties ") from and against any and all claims, demands,
obligations, damages, actions, causes of action, suits, losses, judgments, fines,
penalties, liabilities, costs and expenses (including without limitation, attorney's
fees, disbursements and court costs) of every kind and nature whatsoever which
may arise from or in any manner relate (directly or indirectly) to the Project, the
Project's Approval, the City's CEQA determination and /or the City's failure to
comply with the requirements of any federal, state, or local laws, including, but
not limited to, CEQA, General Plan and zoning requirements. This
indemnification shall include, but not be limited to, damages awarded against the
Indemnified Parties, if any, costs of suit, attorneys' fees, and other expenses
incurred in connection with such claim, action, or proceeding whether incurred by
Landowner, the Indimnified Parties, and /or the parties initiating or bringing such
proceeding.
03.02.09 Clem 25
17. Mortgagee Rights.
17.1 Encumbrances on Property. The Parties agree that this Agreement shall
not prevent or limit Landowner in any manner from encumbering the
Property, any part of the Property, or any improvements on the Property
with any Mortgage securing financing with respect to the construction,
development, use, or operation of the Project.
17.2 Mortgagee Protection. This Agreement shall be superior and senior to the
lien of any Mortgage. Nevertheless, no breach of this Agreement shall
defeat, render invalid, diminish, or impair the lien of any Mortgage made in
good faith and for value. Any acquisition or acceptance of title or any right
or interest in the Property or part of the Property by a Mortgagee (whether
due to foreclosure, trustee's sale, deed in lieu of foreclosure, lease
termination, or otherwise) shall be subject to all of the terms and
conditions of this Agreement. Any Mortgagee who takes title to the
Property or any part of the Property shall be entitled to the benefits arising
under this Agreement.
17.3 Mortgagee Not Obligated. Notwithstanding the provisions of this Section
17.3, a Mortgagee will not have any obligation or duty under the terms of
this Agreement to perform the obligations of Landowner or other
affirmative covenants of Landowner, or to guarantee this performance
except that:
(a) The Mortgagee shall have no right to develop the Property under
the Development Regulations without fully complying with the terms
of this Agreement; and
(b) To the extent that any covenant to be performed by Landowner is a
condition to the performance of a covenant by City, that
performance shall continue to be a condition precedent to Cfty's
performance.
17.4 Notice of Default to Mortgagee: Right of Mortgagee to Cure. Each
Mortgagee shall, upon written request to City, be entitled to receive written
notice from City of.
(a) The results of the Periodic Review of compliance specified in this
Agreement, and
(b) Any default by Landowner of its obligations set forth in this
Agreement.
Each Mortgagee shall have a further right, but not an obligation, to cure
the default within ten (10) calendar days after receiving notice of monetary
defaults and within thirty (30) calendar days after receiving notice of non -
monetary defaults. If Mortgagee can only remedy or cure the default by
03.02.09 c>an 26
obtaining possession of the Property, then Mortgagee shall have the right
to seek to obtain possession with diligence and continuity through a
receiver or otherwise, and to remedy or cure the Default within thirty (30)
calendar days after obtaining possession. Except in case of emergency or
to protect the public health or safety, City may not exercise any of its
judicial remedies set forth in this Agreement until expiration of the thirty
(30) calendar day period. But in the case of a default that cannot with
diligence be remedied or cured within thirty (30) days, the Mortgagee shall
have additional time as is reasonably necessary to remedy or cure the
default, provided Mortgagee promptly commences to cure the default
within thirty (30) calendar days and diligently prosecutes the cure to
completion. Landowner shall not be released from performing its
obligations as set forth in this Agreement in the event of a foreclosure by a
Mortgagee.
18. Assignment.
18.1 Right to Assign. Landowner shall have the right to sell, transfer or assign
the Property in whole or in part, to any person, partnership, joint venture,
firm or corporation at any time during the term of this Agreement;
provided, however, that any such sale, transfer or assignment shall
include the assignment and assumption of the rights, duties and
obligations arising under or from this Agreement and be made in
compliance with the following conditions precedent:
(a) No sale, transfer or assignment of any right or interest under this
Agreement shall be made unless made together with the sale,
transfer or assignment of all or a part of the Property;
(b) Concurrent with any such sale, transfer or assignment, or within
fifteen (15) business days thereafter, Landowner shall notify City, in
writing, of such sale, transfer or assignment and shall provide City
with an executed agreement by the purchaser, transferee or
assignee and providing therein that the purchaser, transferee or
assignee expressly and unconditionally assumes all the duties and
obligations of Landowner under this Agreement which apply to the
Property in whole or in part being sold, transferred or assigned; and
(c) The provisions of this Section 18.1 shall not apply to transfers, by
Landowner of an interest in all or a portion of the Property to any
subsidiary or affiliate entity of Landowner.
18.2 Agreement Binding on Successors and Assigns. The burdens of this
Agreement are binding upon, and the benefits of this Agreement inure to,
all successors in interest of the Parties to this Agreement, and constitute
covenants that run with the Property. To provide continued notice, the
Parties will record this Agreement and any subsequent amendments to it.
03.02.09 cm 27
19. Est000el Certificate. At any time, either Party may deliver written notice to the
other Party requesting that the Party certify in writing that, to the best of its
knowledge:
(a) This Agreement is in full force and effect and is binding on the
Party;
(b) This Agreement has not been amended or modified either orally or
in writing. If this Agreement has been amended, the Party
providing the certification shall identify the amendments; and
(c) The requesting Party is not in default in the performance of its
obligations under this Agreement. If the requesting Party is in
default, the other Party must describe the nature and amount of the
default, if any.
The requesting Party shall execute and return the certificate within fifteen (15)
calendar days following receipt from the requesting party. Any assignee of a
Party's rights and obligations hereunder, as referred to in Section 18.1, and any
Mortgagee; shall be entitled to rely on the certificate.
20. Further Actions and Instruments. Each Party shall cooperate with and provide
reasonable assistance to the other Party to the extent consistent with and
necessary to implement this Agreement. Upon the request of a Party at any
time,,the other Party shall promptly execute, with acknowledgement or affidavit if
reasonably required, and file or record the required instruments and writings and
take any actions as may be reasonably necessary to implement this Agreement
or to evidence or consummate the transactions contemplated by this Agreement.
21. Notice . Any notice or demand that shall be required or permitted by law or any
provision of this Agreement shall be in writing. If the notice or demand will be
served upon a Party, it either shall be: personally delivered to the Party;
deposited in the United States mail, certified, return receipt requested, and
postage prepaid; or delivered by a reliable courier service that provides a receipt
showing date and time of delivery with courier charges prepaid. The notice or
demand shall be addressed as follows:
TO CITY: City of Newport Beach
3300 Newport Boulevard
Post Office Box 1768
Newport Beach, CA 92663 -3884
Attn: City Manager
03.02.09 Clean 28
With a copy to: City Attorney
City of Newport Beach
3300 Newport Boulevard
Post Office Box 1768
Newport Beach, CA 92663 -3884
TO LANDOWNER: JGKaliins Newport Investments, LLC
15747 Woodruff Avenue
Bellflower, CA 90706
Attn: James G. Kallins
With a copy to: Rutan & Tucker, LLP
611 Anton Boulevard, Suite 1400
Costa Mesa, CA 92626 -1931
Attn: Richard P. Sims
Sunstone Jamboree, LLC
c/o Sunstone Hotel Investors, Inc.
903 Calle Amanecer, Suite 100
San Clemente, CA 92673
Attn: Legal Department
With a copy to: Hewitt & O'Neil LLP
19900 MacArthur Blvd., Suite 1050
Irvine, CA 92612
Attn: Dennis D. O'Neil
Either Parry may change the address stated in this Section 21 by notice to the
other Party in the manner provided in this Section 21, and notices shall be
addressed and submitted to the new address. Notice shall be deemed to be
delivered upon the earlier of: (1) the date received; or (2) three business days
after deposit in the mail as provided above.
22. Rules of Construction and Miscellaneous Terms.
22.1 Rules of Construction. The singular includes the plural; the masculine and
neuter include the feminine; "shall" is mandatory; "may" is permissive.
22.2 Time Is of the Essence. Time is of the essence regarding each provision
of this Agreement in which time is an element.
22.3 Waiver. Failure by a Party to insist upon the strict performance, of any of
the provisions of this Agreement by the other Party, and failure by a Party
to exercise its rights upon a default by the other Party, shall not constitute
a waiver of that Party's right to demand strict compliance by the other
Party in the future.
03.02.09 cis 29
22.4 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be identical and may be introduced in
evidence or used for any other purpose without any other counterpart, but
all of which shall together constitute one and the same agreement.
22.5 Entire Agreement. This Agreement constitutes the entire agreement and
supersedes all prior agreements and understandings, both written and
oral, between the Parties with respect to the subject matter addressed in
this Agreement.
22.6 Severabilitv. The Parties intend that each and every obligation of the
Parties is interdependent and interrelated with the other, and if any
provision of this Agreement or the application of the provision to any Party
or circumstances shall be held invalid or unenforceable to any extent, it is
the intention of the Parties that the remainder of this Agreement or the
application of the provision to persons or circumstances shall be rendered
invalid or unenforceable. The Parties intend that neither shall receive any
of the benefits of the Agreement without the full performance of all of the
obligations provided for under this Agreement. Without limiting the
generality of the foregoing, the Parties intend that Landowner shall not
receive any of the benefits of this Agreement if any of Landowner's
obligations are rendered void or unenforceable as the result of any third
party litigation, and City shall be free to exercise its legislative discretion to
amend or repeal the development regulations applicable to the Property
and Landowner shall cooperate as required, despite this Agreement,
should third party litigation result in the nonperformance of Landowner's
obligations under this Agreement.
22.7 Construction. This Agreement has been drafted after extensive
negotiation and revision. Both City and Landowner are sophisticated
Parties who were represented by independent counsel throughout the
negotiations. City and Landowner each agree and acknowledge that the
terms of this Agreement are fair and reasonable, taking into account their
respective purposes, terms, and conditions. This Agreement shall
therefore be construed as a whole consistent with its fair meaning, and no
principle or presumption of contract construction or interpretation shall be
used to construe the whole or any part of this Agreement in favor of or
against either Party.
22.8 Constructive Notice and Acceptance. Every person who now or later
owns or acquires any right, title, or interest in any part of the Project or the
Property is and shall be conclusively deemed to have consented and
agreed to every provision of this Agreement. This Section 22.8 applies
regardless of whether the instrument by which the person acquires the
interest references this Agreement.
22.9 No Third Partv Beneficiaries. The only Parties to this Agreement are City
and Landowner. This Agreement does not involve any third party
03.02.09 ci= 30
beneficiaries, and it is not intended and shall not be construed to benefit or
be enforceable by any other person or entity.
22.10 Applicable Law and Venue. This Agreement shall be construed and
enforced consistent with the internal laws of the State of California. Any
action at law or in equity arising under this Agreement or brought by any
Party for the purpose of enforcing, construing, or determining the validity
of any provision of this Agreement shall be filed and tried in the Superior
Court of the County of Orange, State of California, or the United States
District Court for the Central District of California. The Parties waive all
provisions of law providing for the removal or change of venue to any
other court.
22.11 Non - Liability of City Officers and Emplovees. No official, officer, employee,
agent, or representative of City shall be personally liable to Landowner or
its successors and assigns for any loss arising out of or connected with
this Agreement or the Development Regulations and no judgment or
execution thereon entered in any action hereon shall be personally
enforced against any such official, officer, employee, agent, or
representative of City.
22.12 Section Headings. All section headings and subheadings are inserted for
convenience.
22.13 Covenant Not To Sue. The Parties to this Agreement, and each of them,
agree that this Agreement and each term hereof is legal, valid, binding,
and enforceable. The Parties to this Agreement, and each of them,
hereby covenant and agree that each of them will not commence,
maintain, or prosecute any claim, demand, cause of action, suit, or other
proceeding against any other party to this Agreement, in law or in equity,
or based on an allegation, or assert in any such action, that this
Agreement or any term hereof is void, invalid, or unenforceable.
22.14 Eminent Domain. No provision of this Agreement shall be construed to
limit or restrict the exercise by City of its power of eminent domain.
22.15 No Brokers. City and Landowner represent and warrant to the other that
neither has employed any broker and /or finder to represent its interest in
this transaction. Each party agrees to indemnify and hold the other free
and harmless from and against any and all liability, loss, cost, or expense
(including court costs and reasonable attorney's fees) in any manner
connected with a claim asserted by any individual or entity for any
commission or finder's fee in connection with this Agreement arising out of
agreements by the indemnifying party to pay any commission or finder's
fee.
23. Authority to Execute. The persons executing this Agreement warrant and
represent that they have the authority to execute this Agreement on behalf of the
03.02.09 Cis 31
entity for which they are executing this Agreement. They further warrant and
represent that they have the authority to bind their respective Party to the
performance of its obligations under this Agreement.
24. Recordation. This Agreement and any amendment, modification, or cancellation
to it shall be recorded in the Office of the County Recorder of the County of
Orange, by City Clerk within the period required by California Government Code
section 65868.5 and City of Newport Beach Municipal Code section 15.45.100.
(Signature page follows)
03.0209 Clean 32
IN WITNESS WHEREOF, the Parties have each executed this Agreement on the date
first written above.
"LANDOWNER"
JGKALLINS INVESTMENTS
NEWPORT, LLC, a California Limited
Liability Company
By: B.G.N. Kallins, LLC, a Delaware
Limited Liability Company, its
Manager
LM
James G. Kallins, Manager
SUNSTONE JAMBOREE, LLC, a
Delaware Limited Liability Company
0
Arthur L. Buser, Jr., President
"CITY"
CITY OF NEWPORT BEACH
By:
Edward D. Selich, Mayor
ATTEST:
Leilani I. Brown, City Clerk
AP VED TO ORM:
P�
David R. Hunt, City Attorney
03.02.09 Clean 33
STATE OF CALIFORNIA
ss
COUNTY OF ORANGE
On , before me, , a Notary Public,
personally appeared , personally known to me who proved to
me on the basis of satisfactory evidence to be the person(s) whose name(s) (is /are)
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.
I certify under PENALTY OF PERJURY under the laws of the State of that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Notary Public
03.02.09 Clean 34
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
PARCEL A:
PARCEL 1:
THAT PORTION OF BLOCK 5S OF IRVINE'S SUBDIVISION IN THE CITY OF NEWPORT
BEACH. COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SAID SUBDIVISION IS
SHOWN ON A MAP RECORDED IN BOOK 1, PAGE 88 OF MISCELLANEOUS RECORDS
MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS
FOLLOWS;
BEGINNING AT THE INTERSECTION OF THE CENTERLINE OF JAMBOREE ROAD (100.00
FEET WIDE) AS DESCRIBED IN A DEED RECORDED IN BOOK 4110, PAGE 10, OFFICIAL
RECORDS OF SAID COUNTY, WITH THE CENTERLINE OF SAYSIDE DRIVE ISD.OD FEET
WIDE) AS DESCRIBED IN A DEED RECORDED IN BOOK 4288, PAGE 216 OF OFFICIAL
RECORDS OF SAID COUNTY; THENCE NORTH 330 47' 15" EAST 353.63 FEET ALONG
SAID CENTERLINE OF JAMBOREE ROAD; THENCE NORTH 51" 12'45" WEST 50.19
FEET TO A POINT ON THE NORTHWESTERLY BOUNDARY LINE OF SAID JAMBOREE
ROAD, SAID POINT BEING THE TRUE POINT OF BEGINNING; THENCE NORTH 330'47'
15" EAST 235.00 FEET ALONG SAID NORTHWESTERLY BOUNDARY LINE; THENCE
NORTH 51 ° 12'45* WEST 39040 FEET; THENCE NORTH 850 40'23" WEST 205.95
FEET; THENCE SOUTH 330 47' 15" WEST 118.00 FEET; THENCE SOUTH 51' 12'45'
EAST 570.00 FEET TO THE TRUE POINT OF BEGINNING.
SAID LAND IS INCLUDED WITHIN THE AREA SHOWN ON A MAP FILED IN THE OFFICE
OF THE COUNTY RECORDER OF SAID ORANGE COUNTY. IN BOOK 17, PAGE 3 OF
PARCEL MAPS.
PARCEL 2,
A PORTION OF BLOCK 55 OF IRVINE"S SUBDIVISION, AS SHOWN ON A MAP THEREOF,
RECORDED IN BOOK 1, PAGE 88 Of MISCELLANEOUS RECORDS MAPS, RECORDS OF
ORANGE COUNTY, CALIFORNIA, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE INTERSECTION OF THE CENTERLINE OF JAMBOREE ROAD 1100.00
FEET IN WIDTH) AS DESCRIBED IN A DEED RECORDED IN BOOK 4110, PAGE 10 OF
OFFICIAL RECORDS, OF ORANGE COUNTY WITH THE CENTERLINE OF BAYSIDE DRIVE
(80.00 FEET IN WIDTH), AS DESCRIBED IN DEED RECORDED IN BOOK 4288, PAGE 216,
OFFICIAL RECORDS OF SAID ORANGE COUNTY; THENCE NORTH 33° 47' 15' EAST
ALONG SAID CENTERLINE OF JAMBOREE ROAD 366.63 FEET; THENCE NORTH 51 ° 12"
45" WEST 50.19 FEET TO A POINT IN THE NORTHWESTERLY LINE OF SAID JAMBOREE
ROAD; THENCE NORTH 330 47' 15" EAST ALONG THE SAID NORTHWESTERLY LINE OF
JAMBOREE ROAD 236.00 FEET TO THE TRUE POINT OF BEGINNING OF THIS
DESCRIPTION; THENCE NORTH 51 a 12'45' WEST 390.00 FEET; THENCE NORTH 06'
40'43' WEST 205.98 FEET; THENCE SOUTH 33' 47' 15- WEST 118.00 FEET; THENCE
NORTH 61 ° 12' 45" WEST 248.42 FEET TO THE SOUTHEASTERLY LINE OF SAID
BAYSIDE DRIVE, SAID SOUTHEASTERLY LINE BEING ON A CURVE CONCAVE EASTERLY
HAVING A RADIUS OF 760.00 FEET; THENCE NORTHEASTERLY ALONG SAID CURVE
AND ALONG THE SAID SOUTHEASTERLY LINE THROUGH AN ANGLE OF S° 38'21 " A
DISTANCE OF 74.80 FEET TO A LINE TANGENT; THENCE NORTH 269 23' 16" EAST
ALONG SAID LINE TANGENT AND ALONG THE SOUTHEASTERLY LINE OF SAYSIDE
DRIVE 223.43 FEET TO THE BEGINNING OF A CURVE CONCAVE WESTERLY HAVING A
RADIUS OF 840.00 FEET; THENCE NORTHEASTERLY ALONG SAID CURVE AND ALONG
THE SOUTHEASTERLY LINE OF BAYSIDE DRIVE THROUGH AN ANGLE OF 120 55' 13' A
DISTANCE OF 189.42 FEET; THENCE SOUTH 560 12'45* EAST 692.63 FEET; THENCE
NORTH 33° 47' 16' EAST 220.00 FEET; THENCE SOUTH 560 12'46' EAST 210.00
Final 7113109 A -1
FEET TO A POINT IN THE NORTHWESTERLY LINE OF SAID JAMBOREE ROAD; THENCE
SOUTH 330 47' 15" WEST ALONG THE NORTHWESTERLY LINE OF JAMBOREE ROAD
535.00 FEET TO THE TRUE POINT OF BEGINNING.
SAID LAND IS INCLUDED WITHIN THE AREA SHOWN ON A MAP FILED IN THE OFFICE
OF THE COUNTY RECORDER OF SAID ORANGE COUNTY, IN BOOK 17, PAGE 3 OF
PARCEL MAPS.
PARCEL 3:
THAT PORTION OF BLOCK 55 OF IRVINE'S SUBDIVISION, IN THE CITY OF NEWPORT
BEACH, COUNTY Of ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP
RECORDED IN BOOK 1, PAGE 88 OF MISCELLANEOUS RECORDS MAPS, IN THE OFFICE
OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT THE INTERSECTION OF THE CENTERLINE OF JAMBOREE ROAD (100.00
FEET WIDE) AS DESCRIBED IN A DEED RECORDED IN BOOK 4110, PAGE 10, OFFICIAL
RECORDS, RECORDS OF ORANGE COUNTY, CALIFORNIA WITH THE CENTERLINE OF
BAYSIDE DRIVE (80.00 FEET WIDE) AS DESCRIBED IN A DEED RECORDED IN BOOK
4288, PAGE 216, OFFICIAL RECORDS, RECORDS OF ORANGE COUNTY, CALIFORNIA;
THENCE NORTH 330 47' 15" EAST 1140.00 FEET ALONG SAID CENTERLINE OF SAID
JAMBOREE ROAD; THENCE NORTH 56 ° 12' 45" WEST 50.00 FEET TO A POINT ON THE
NORTHWESTERLY BOUNDARY LINE OF SAID JAMBOREE ROAD, SAID POINT BEING THE
TRUE POINT OF BEGINNING; THENCE CONTINUING NORTH 560 12'45" WEST 210.00
FEET FROM SAID TRUE POINT OF BEGINNING; THENCE SOUTH 330 47' 15' WEST
220.00 FEET; THENCE NORTH 56" 12'450 WEST 692.63 FEET TO A POINT ON THE
EASTERLY BOUNDARY LINE OF SAID BAYSIDE DRIVE, SAID POINT BEING ON A CURVE
CONCAVE WESTERLY HAVING A RADIUS OF 840.00 FEET AND A CENTRAL ANGLE OF
51 ° 00' 20" A RADIAL LINE TO SAID POINT BEARS SOUTH 760 31'570 EAST; THENCE
NORTHERLY 290.20 FEET ALONG SAID CURVE AND SAID EASTERLY BOUNDARY LINE
THROUGH A CENTRAL ANGLE OF 190 47'40- TO THE INTERSECTION WITH A LINE
BEARS NORTH 830 40'23* EAST; THENCE LEAVING SAID CURVE AND SAID EASTERLY
BOUNDARY, NORTH 830 40'230 EAST 311.16 FEET ALONG SAID LINE; THENCE
SOUTH 569 12'46* EAST 810.00 FEET TO AN INTERSECTION WITH SAID
NORTHWESTERLY BOUNDARY OF SAID JAMBOREE ROAD; THENCE SOUTH 33° 47' 15'
WEST 230.00 FEET ALONG SAID NORTHWESTERLY BOUNDARY TO THE TRUE POINT
OF BEGINNING.
SAID LAND IS INCLUDED WITH THE AREA SHOWN ON .A MAP FILED IN THE OFFICE OF
THE COUNTY RECORDER OF SAID ORANGE COUNTY, IN BOOK 17, PAGE 3 OF PARCEL
MAPS.
PARCEL 4:
THAT PORTION OF BLOCK 65 OF IRVINE'S SUBDIVISION, IN THE COUNTY OF GRANGE,
STATE OF CALIFORNIA, AS SAID SUBDIVISION IS SHOWN ON A MAP RECORDED IN
BOOK 1, PAGE 88 OF MISCELLANEOUS RECORDS MAPS, IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT THE INTERSECTION OF THE NORTHEASTERLY RIGHT OF WAY LINE OF
BAYSIDE DRIVE, 80.00 FEET WIDE, AS DESCRIBED IN A DEED RECORDED IN BOOK
4288, PAGE 218, OFFICIAL RECORDS OF SAID ORANGE COUNTY, WITH THE
NORTHWESTERLY RIGHT OF WAY LINE OF JAMBOREE ROAD, 100.00 FEET WIDE, AS
DESCRIBED IN A DEED RECORDED IN BOOK 4110, PAGE 10, OFFICIAL RECORDS,
RECORDS OF SAID COUNTY; THENCE NORTH 33" 47' 15" EAST 330.00 FEET ALONG
SAID NORTHWESTERLY RIGHT OF WAY LINE OF JAMBOREE ROAD TO THE MOST
SOUTHERLY CORNER OF THE LAND DESCRIBED IN PARCEL 1 OF THE FIFTH ADDENDUM
TO LEASE EXECUTED BY THE NEWPORTER RESTAURANT CORP., A CORPORATION, AS
LESSEE RECORDED OCTOBER 22,1963 IN BOOK 6771, PAGE 443, OFFICIAL RECORDS,
Final 7113M A -2
THENCE NORTH 510 12'46w WEST 818.42 FEET ALONG THE SOUTHWESTERLY LINE
OF SAID PARCEL 1 AND THE NORTHWESTERLY PROLONGATION THEREOF TO THE
EASTERLY RIGHT OF WAY LINE OF SAID BAYSIDE DRIVE, SAID EASTERLY RIGHT OF
WAY LINE BEING A NON-TANGENT CURVE CONCAVE EASTERLY HAVING A RADIUS OF
760.00 FEET; THENCE SOUTHERLY 187.64 FEET; THENCE SOUTH 06° 35' 150 WEST
3.17 FEET ALONG SAID CURVE AND EASTERLY RIGHT OF WAY LINE THROUGH AN
ANGLE OF 140 09' 40" TO THE BEGINNING OF A COMPOUND CURVE CONCAVE
NORTHEASTERLY HAVING A RADIUS OF 41 0.00 FEET; THENCE SOUTHERLY AND
SOUTHEASTERLY 449.39 FEET ALONG SAID CURVE BEING ALSO SAID EASTERLY
RIGHT OF WAY UNE THROUGH AN ANGLE OF 620 48'99w: THENCE TANGENT SOUTH
66° 12'45w EAST 384.75 FEET ALONG THE NORTHEASTERLY RIGHT OF WAY LINE OF
SAID BAYSIDE DRIVE TO THE POINT OF BEGINNING.
SAID LAND IS INCLUDED WITHIN THE AREA SHOWN ON A MAP FILED IN THE OFFICE
OF THE COUNTY RECORDER SAID ORANGE COUNTY, IN BOOK 17, PAGE 3 OF PARCEL
MAPS.
EXCEPTING THEREFROM ALL OIL, OIL RIGHTS, MINERALS, MINERAL RIGHTS, NATURAL
GAS RIGHTS AND OTHER HYDROCARBONS BY WHATSOEVER NAME KNOWN,
GEOTHERMAL STEAM, ANY OTHER MATERIAL RESOURCES AND ALL PRODUCTS
DERIVED FROM ANY OF THE FOREGOING, THAT MAY BE WITHIN OR UNDER THE
PARCEL OF LAND HEREINABOVE DESCRIBED, TOGETHER WITH THE PERPETUAL RIGHT
OF DRILLING, MINING, EXPLORING AND OPERATING THEREFOR AND STORING IN AND
REMOVING THE SAME FROM SAID LAND OR ANY OTHER LAND, INCLUDING THE RIGHT
TO WHIPSTOCK OR DIRECTIONALLY DRILL AND MINE FROM LANDS OTHER THAN
THOSE HEREINABOVE DESCRIBED, OIL OR GAS WELLS, TUNNELS AND SHAFTS INTO,
THROUGH OR ACROSS THE SUBSURFACE OF THE LAND HEREINABOVE DESCRIBED,
AND TO BOTTOM SUCH WHIPSTOCKED OR DIRECTIONALLY DRILLED WELLS, TUNNELS
AND SHAFTS UNDER AND BENEATH OR BEYOND THE EXTERIOR LIMITS THEREOF, AND
TO REDRILL, RETUNNEL, EQUIP, MAINTAIN, REPAIR, DEEPEN AND OPERATE ANY SUCH
WELLS OR MINES WITHOUT, HOWEVER, THE RIGHT TO DRILL, MINE, STORE, EXPLORE
OR OPERATE THROUGH THE SURFACE OR THE UPPER 500 FEET OF THE SUBSURFACE
OF THE LAND HEREINABOVE DESCRIBED, AS RESERVED BY THE IRVINE COMPANY IN
DEED RECORDED JUNE 30, 1892 AS INSTRUMENT NO. 92. 441109 OF OFFICIAL
RECORDS.
ALSO EXCEPTING THEREFROM ANY AND ALL WATER, RIGHTS OR INTERESTS THEREIN,
NO MATTER HOW ACQUIRED BY GRANTOR, AND OWNED OR USED BY GRANTOR IN
CONNECTION WITH OR WITH RESPECT TO THE LAND, TOGETHER WITH THE RIGHT
AND POWER TO EXPLORE, DRILL, REDRILL, REMOVE AND STORE THE SAME FROM THE
LAND OR TO DIVERT OR OTHERWISE UTILIZE SUCH WATER, RIGHTS OR INTEREST ON
ANY OTHER PROPERTY OWNED OR LEASED BY GRANTOR, WHETHER SUCH WATER
RIGHTS SHALL BE RIPARIAN, OVERLYING, APPROPRIATIVE, LITTORAL, PERCOLATING,
PRESCRIPTIVE, ADJUDICATED, STATUTORY OR CONTRACTUAL, BUT WITHOUT,
HOWEVER, ANY RIGHT TO ENTER UPON THE SURFACE OF THE LAND IN THE EXERCISE
OF SUCH RIGHTS, AS RESERVED BY THE IRVINE COMPANY IN DEED RECORDED JUNE
30, 1992 AS INSTRUMENT NO. 92-441109 OF OFFICIAL RECORDS.
ALSO, EXCEPTING FROM PARCELS i THRU 4 ABOVE ALL RIGHT TITLE AND INTEREST
IN AND TO ANY AND ALL STRUCTURES, BUILDINGS, INTERIORS AND/OR
IMPROVEMENTS, AND ANY AND ALL ITEMS OF FIXTURES LOCATED WITHIN SUCH
STRUCTURES, BUILDINGS, INTERIORS AND/OR IMPROVEMENTS, OR APPURTENANT
THERETO, ALL OF WHICH ARE AND SHALL REMAIN REAL PROPERTY AND ARE NOW
LOCATED OR HEREAFTER LOCATED ON THE REAL PROPERTY.
PARCEL B:
ALL RIGHT TITLE AND INTEREST IN AND TO ANY AND ALL STRUCTURES, BUILDINGS,
INTERIORS ANDIOR IMPROVEMENTS, AND ANY AND ALL ITEMS OF FIXTURES
Final 2113/09. A -3
LOCATED WITHIN SUCH STRUCTURES, BUILDINGS, INTERIORS AND/OR
IMPROVEMENTS, OR APPURTENANT THERETO, ALL OF WHICH ARE AND SHALL
REMAIN REAL PROPERTY AND ARE NOW LOCATED OR HEREAFTER LOCATED ON THE
REAL PROPERTY DESCRIBED AS:
PARCEL i :
THAT PORTION OF BLOCK 65 OF IRVINE'S SUBDIVISION IN THE CITY OF NEWPORT
BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SAID SUBDIVISION IS
SHOWN ON A MAP RECORDED IN BOOK 1, PAGE 88 OF MISCELLANEOUS RECORDS
MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS
FOLLOWS:
BEGINNING AT THE INTERSECTION OF THE CENTERLINE OF JAMBOREE ROAD 000.00
FEET WIDE) AS DESCRIBED IN A DEED RECORDED IN BOOK 4110, PAGE 10, OFFICIAL
RECORDS OF SAID COUNTY, WITH THE CENTERLINE OF BAYSIDE DRIVE (80.00 FEET
WIDE) AS DESCRIBED IN A DEED RECORDED IN BOOK 4288, PAGE 10 OF OFFICIAL
RECORDS OF SAID COUNTY; THENCE NORTH 330 47' 1 S' EAST 365.63 FEET ALONG
SAID CENTERLINE OF JAMBOREE ROAD; THENCE NORTH 510 12'45" WEST 50.19
FEET TO A POINT ON THE NORTHWESTERLY BOUNDARY LINE OF SAID JAMBOREE
ROAD, SAID POINT BEING THE TRUE POINT OF BEGINNING; THENCE NORTH 330 47'
15" EAST 236.00 FEET ALONG SAID NORTHWESTERLY BOUNDARY LINE; THENCE
NORTH 61" 12'4W WEST 390.00 FEET, THENCE NORTH 850 40'23* WEST 206.96
FEET; THENCE SOUTH 330 47' 15' WEST 118.00 FEET; THENCE SOUTH 510 12'45"
EAST 570.00 FEET TO THE TRUE POINT OF BEGINNING.
SAID LAND IS INCLUDED WITHIN THE AREA SHOWN ON A MAP FILED IN THE OFFICE
OF THE COUNTY RECORDER OF SAID ORANGE COUNTY, IN BOOK 17, PAGE 3 OF
PARCEL MAPS.
PARCEL 2:
A PORTION OF BLOCK 55 OF IRVINE'S SUBDIVISION, AS SHOWN ON A MAP THEREOF,
RECORDED IN BOOK 1, PAGE 86 OF MISCELLANEOUS RECORDS MAPS, RECORDS OF
ORANGE COUNTY, CALIFORNIA, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE INTERSECTION OF THE CENTERLINE OF JAMBOREE ROAD (100.00
FEET IN WIDTH) AS DESCRIBED IN A DEED RECORDED IN BOOK 4110, PAGE 10 OF
OFFICIAL RECORDS, OF ORANGE COUNTY WITH THE CENTERLINE OF BAYSID9 DRIVE
(80.00 FEET IN WIDTH), AS DESCRIBED IN DEED RECORDED IN BOOK 4288, PAGE 216,
OFFICIAL RECORDS OF SAID ORANGE COUNTY; THENCE NORTH 330 47' 16' EAST
ALONG SAID CENTERLINE OF JAMBOREE ROAD 366.63 FEET; THENCE NORTH 510 12'
45' WEST 30.19 FEET TO A POINT ON THE NORTHWESTERLY LINE OF SAID JAMBOREE
ROAD; THENCE NORTH 330 47' 15" EAST ALONG THE SAID NORTHWESTERLY LINE OF
JAMBOREE ROAD 235.00 FEET TO THE TRUE POINT OF BEGINNING OF THIS
DESCRIPTION; THENCE NORTH 510 12'45' WEST 390.00 FEET; THENCE NORTH 860
40' 43' WEST 205.96 FEET; THENCE SOUTH 330 47' 1 B' WEST 118.00 FEET; THENCE
NORTH 510 12'43* WEST 24$42 FEET TO THE SOUTHEASTERLY LINE OF SAID
EIAYSIDE DRIVE, SAID SOUTHEASTERLY LINE BEING, ON A CURVE CONCAVE EASTERLY
HAVING A RADIUS OF 760.00 FEET; THENCE NORTHEASTERLY ALONG SAID CURVE
AND ALONG THE SAID SOUTHEASTERLY LINE THROUGH AN ANGLE OF 50 38' 21' A
DISTANCE OF 74.80 FEET TO A LINE TANGENT; THENCE NORTH 260 23' 16" EAST
ALONG SAID LINE TANGENT AND ALONG THE SOUTHEASTERLY LINE OF BAYSIDE
DRIVE 223.43 FEET TO THE BEGINNING OF A CURVE CONCAVE WESTERLY HAVING A
RADIUS OF 840.00 FEET; THENCE NORTHEASTERLY ALONG SAID CURVE AND ALONG
THE SOUTHEASTERLY LINE OF BAYSIDE DRIVE THROUGH AN ANGLE OF 120 56' 13- A
DISTANCE OF 189.42 FEET; THENCE SOUTH 56" 12'45' EAST 692.63 FEET; THENCE
NORTH 330 47'15* EAST 220.00 FEET; THENCE SOUTH 560 12'45- EAST 210.00
FEET TO A POINT IN THE NORTHWESTERLY LINE OF SAID JAMBOREE ROAD; THENCE
Final 2113/09 A -4
SOUTH 330 47' 15" WEST ALONG THE NORTHWESTERLY LINE OF JAMBOREE ROAD
535.00 FEET TO THE TRUE POINT OF BEGINNING.
SAID LAND IS INCLUDED WITHIN THE AREA SHOWN ON A MAP FILED IN THE OFFICE
OF THE COUNTY RECORDER OF SAID ORANGE COUNTY, IN BOOK 17, PAGE 3 OF
PARCEL MAPS.
PARCEL 3:
THAT PORTION OF BLOCK 66 OF IRVINE'S SUBDIVISION, IN THE CITY OF NEWPORT
BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP
RECORDED IN BOOK 1, PAGE 88 OF MISCELLANEOUS RECORDS MAPS, IN THE OFFICE
OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT THE INTERSECTION OF THE CENTERLINE OF JAMBOREE ROAD (100.00
FEET WIDE) AS DESCRIBED IN A DEED RECORDED IN BOOK 4110, PAGE 10, OFFICIAL
RECORDS, RECORDS OF ORANGE COUNTY, CALIFORNIA WITH THE CENTERLINE OF
BAYSIDE DRIVE (80.00 FEET WIDEI AS DESCRIBED IN A DEED RECORDED IN BOOK
4288, PAGE 216, OFFICIAL RECORDS, RECORDS OF ORANGE COUNTY, CALIFORNIA;
THENCE NORTH 330 47' 16" EAST 1140.00FEET ALONG SAID CENTERLINE OF SAID
JAMBOREE ROAD; THENCE NORTH 580 12' 46" WEST 50.00 FEET TO A POINT ON THE
NORTHWESTERLY BOUNDARY LINE OF SAID JAMBOREE ROAD, SAID POINT BEING THE
TRUE POINT OF BEGINNING; THENCE CONTINUING NORTH 560 12.46" WEST 210.00
FEET FROM SAID TRUE POINT OF BEGINNING; THENCE SOUTH 330 47' 15" WEST
220,00 FEET; THENCE NORTH 560 12' 46" WEST 692.63 FEET TO A POINT ON THE
EASTERLY BOUNDARY LINE OF SAID BAYSIDE DRIVE, SAID POINT BEING ON A CURVE
CONCAVE WESTERLY HAVING A RADIUS OF 840.00 FEET AND A CENTRAL ANGLE OF
510 00' 20" A RADIAL LINE TO SAID POINT BEARS SOUTH 760 31' 57" EAST; THENCE
NORTHERLY 290.20 FEET ALONG SAID CURVE AND SAID EASTERLY BOUNDARY. LINE
THROUGH A CENTRAL ANGLE OF 190 47'40" TO THE INTERSECTION WITH A LINE
BEARING NORTH 630 40' 23" EAST, THENCE LEAVING SAID CURVE AND SAID
EASTERLY BOUNDARY, NORTH 830 40'23' EAST 311.16 FEET ALONG SAID LINE;
THENCE SOUTH 560 12' 45" EAST 810.00 FEET TO AN INTERSECTION WITH SAID
NORTHWESTERLY BOUNDARY OF SAID JAMBOREE ROAD; THENCE SOUTH 330 47' 15"
WEST 230.00 FEET ALONG SAID NORTHWESTERLY BOUNDARY TO THE TRUE POINT
OF BEGINNING.
SAID LAND IS INCLUDED WITH THE AREA SHOWN ON A MAP FILED IN THE OFFICE OF
THE COUNTY RECORDER OF SAID ORANGE COUNTY, IN BOOK 17, PAGE 3 OF PARCEL
MAPS.
PARCEL 4:
THAT PORTION OF BLOCK 56 OF IRVINE'S SUBDIVISION, IN THE COUNTY OF ORANGE,
STATE OF CALIFORNIA, AS SAID SUBDIVISION IS SHOWN ON A MAP RECORDED IN
BOOK 1, PAGE BB OF MISCELLANEOUS RECORDS MAPS, IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT THE INTERSECTION OF THE NORTHEASTERLY RIGHT OF WAY LINE OF
BAYSIDE DRIVE, 80.00 FEET WIDE, AS DESCRIBED IN A DEED RECORDED IN BOOK
4288, PAGE 216, OFFICIAL RECORDS OF SAID ORANGE COUNTY, WITH THE
NORTHWESTERLY RIGHT OF WAY LINE OF JAMBOREE ROAD, 100.00 FEET WIDE, AS
DESCRIBED IN A DEED RECORDED IN BOOK 4110, PAGE 10, OFFICIAL RECORDS,
RECORDS OF SAID COUNTY; THENCE NORTH 330 47' 1 S" EAST 330.00 FEET ALONG
SAID NORTHWESTERLY RIGHT OF WAY LINE OF JAMBOREE ROAD TO THE MOST
SOUTHERLY CORNER OF THE LAND DESCRIBED IN PARCEL 1 OF THE FIFTH ADDENDUM
TO LEASE EXECUTED BY THE NEWPORTER RESTAURANT CORP., A CORPORATION, AS
LESSEE RECORDED OCTOBER 22, 1953 IN BOOK 6771, PAGE 443, OFFICIAL RECORDS;
THENCE NORTH 51 a 12'452 WEST 818.42 FEET ALONG THE SOUTHWESTERLYLINE
Fiml 2/13/09 A -5
OF SAID PARCEL 1 AND THE NORTHWESTERLY PROLONGATION THEREOF TO THE
EASTERLY RIGHT OF WAY LINE OF SAID BAYSIDE DRIVE, SAID EASTERLY RIGHT OF
WAY LINE BEING A NON TANGENT CURVE CONCAVE EASTERLY HAVING A RADIUS OF
780.00 FEET; THENCE SOUTHERLY 187.84 FEET; THENCE SOUTH 060 36' 1 S` WEST
3.17 FEET ALONG SAID CURVE AND EASTERLY RIGHT OF WAY LINE THROUGH AN
ANGLE OF 140 09'40' TO THE BEGINNING OF A COMPOUND CURVE CONCAVE
NORTHEASTERLY HAVING A RADIUS OF 410.00 FEET; THENCE SOUTHERLY AND
SOUTHEASTERLY 449.39 FEET ALONG SAID CURVE BEING ALSO SAID EASTERLY
RIGHT OF WAY LINE THROUGH AN ANGLE OF 626 48'00w; THENCE TANGENT SOUTH
660 12'450 EAST 384.75 FEET ALONG THE NORTHEASTERLY RIGHT OF WAY LINE OF
SAID BAYSIDE DRIVE TO THE POINT OF BEGINNING.
SAID LAND IS INCLUDED WITHIN THE AREA SHOWN ON A MAP FILED IN THE OFFICE
OF THE COUNTY RECORDER SAID ORANGE COUNTY, IN BOOK 17, PAGE 3 OF PARCEL
MAPS.
EXCEPTING THEREFROM ALL OIL, OIL RIGHTS, MINERALS, MINERAL RIGHTS, NATURAL
GAS RIGHTS AND OTHER HYDROCARBONS BY WHATSOEVER NAME KNOWN,
GEOTHERMAL STEAM, ANY OTHER MATERIAL RESOURCES AND ALL PRODUCTS
DERIVED FROM ANY OF THE FOREGOING, THAT MAY BE WITHIN OR UNDER THE
PARCEL OF LAND HEREINABOVE DESCRIBED, TOGETHER WITH THE PERPETUAL RIGHT
OF DRILLING, MINING, EXPLORING AND OPERATING THEREFOR AND STORING IN AND
REMOVING THE SAME FROM SAID LAND OR ANY OTHER LAND, INCLUDING THE RIGHT
TO WHIPSTOCK OR DIRECTIONALLY DRILL AND MINE FROM LANDS OTHER THAN
THOSE HEREINABOVE DESCRIBED, OIL OR GAS WELLS, TUNNELS AND SHAFTS INTO,
THROUGH OR ACROSS THE SUBSURFACE OF THE LAND HEREINABOVE DESCRIBED,
AND TO BOTTOM SUCH WHIPSTOCKED OR DIRECTIONALLY DRILLED WELL., TUNNELS
AND SHAFTS UNDER AND BENEATH OR BEYOND THE EXTERIOR LIMITS THEREOF, AND
TO REDRILL, RETUNNEL, EQUIP, MAINTAIN, REPAIR, DEEPEN AND OPERATE ANY SUCH
WELLS OR MINES WITHOUT, HOWEVER, THE RIGHT TO DRILL, MINE, STORE, EXPLORE
OR OPERATE THROUGH THE SURFACE OR THE UPPER 500 FEET OF THE SUBSURFACE
OF THE LAND HEREINABOVE DESCRIBED. AS RESERVED BY THE IRVINE COMPANY IN
DEED RECORDED JUNE 30, 1992 AS INSTRUMENT NO. 92-441109 0E OFFICIAL
RECORDS.
ALSO EXCEPTING THEREFROM ANY AND ALL WATER, RIGHTS OR INTERESTS THEREIN,
NO MATTER HOW ACQUIRED BY GRANTOR, AND OWNED OR USED BY GRANTOR IN
CONNECTION WITH OR WITH RESPECT TO THE LAND, TOGETHER WITH THE RIGHT
AND POWER TO EXPLORE, DRILL, REDRILL, REMOVE AND STORE THE SAME FROM THE
LAND OR TO DIVERT OR OTHERWISE UTILIZE SUCH WATER, RIGHTS OR INTEREST ON
ANY OTHER PROPERTY OWNED OR LEASED BY GRANTOR, WHETHER SUCH WATER
RIGHTS SHALL BE RIPARIAN, OVERLYING, APPROPRIATIVE, LITTORAL, PERCOLATING,
PRESCRIPTIVE, ADJUDICATED, STATUTORY OR CONTRACTUAL, BUT WITHOUT,
HOWEVER, ANY RIGHT TO ENTER UPON THE SURFACE OF THE LAND IN THE EXERCISE
OF SUCH RIGHTS, AS RESERVED BY THE IRVINE COMPANY IN DEED RECORDED JUNE
30, 1992 AS INSTRUMENT NO. 92-441 1 09OF OFFICIAL RECORDS.
Assessor's Parcel No: 440- 182 -41
Final 2113/09 A -6
Final 2rt3/09 B -1
STATE OF CALIFORNIA }
COUNTY OF ORANGE
CITY OF NEWPORT BEACH }
I, Leilani I. Brown, 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. 2009 -8 was duly and regularly introduced on the 24th day of February, 2009,
and adopted by the City Council of said City at a regular meeting of said Council, duly and regularly
held on the 10th day of March, 2009, and that the same was so passed and adopted by the following
vote, to wit:
Ayes: Henn, Rosansky, Curry, Webb, Gardner, Daigle, Mayor Selich
Noes: None
Absent: None
Abstain: None
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the
official seal of said City this 11th day of March, 2009.
(Seal)
City Clerk
City of Newport Beach, California
CERTIFICATE OF PUBLICATION
STATE OF CALIFORNIA }
COUNTY OF ORANGE } ss.
CITY OF NEWPORT BEACH }
I, LEILANI I. BROWN, City Clerk of the City of Newport Beach, California, do hereby certify
that Ordinance No. 2009 -8 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: March 14, 2009. ��A
In witness whereof, I have hereunto subscribed my name this _!__� day of
2009.
4, �.
City Clerk
City of Newport Beach, California