HomeMy WebLinkAbout2013-6 - Approving Development Agreement DA2012-003 for Uptown Newport located at 4311-4321 Jamboree Road (PA2011-134)ORDINANCE NO. 2013-6
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT
BEACH APPROVING DEVELOPMENT AGREEMENT NO. DA2012-003 FOR
THE 25.05 ACRE PLANNED COMMUNITY KNOWN AS UPTOWN
NEWPORT LOCATED AT 4311-4321 JAMBOREE ROAD (PA2011-134)
THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS:
SECTION 1. STATEMENT OF FACTS.
1. An application was filed by Uptown Newport LP ("Uptown Newport" or "Applicant") with
respect to a 25.05 -acre property generally located on the north side of Jamboree Road
between Birch Street and the intersection of Von Karman Avenue and MacArthur
Boulevard, legally described as Lots 1 and 2 of Tract No. 7953 and incorporated
herein by reference, (the "Property") requesting approval for the development of up to
1,244 residential dwelling units, 11,500 square feet of retail commercial uses and 2.05
acres of parklands (the "Project"). The following approvals are requested or required in
order to implement the project as proposed:
a. Planned Community Development Plan Amendment No. PD2011-003: An
amendment to Planned Community Development Plan #15 (Koll Center Planned
Community) to remove the subject property from the Koll Center Planned
Community, pursuant to Chapter 20.66 (Amendments) of the Municipal Code.
b. Planned Community Development Plan Adoption No, PC2012-001: A Planned
Community Development Plan (PCDP) adoption to establish the allowable land
uses, general development regulations, and implementation and administrative
procedures, which would serve as the zoning document for the construction of up
to 1,244 residential units, 11,500 square feet of retail commercial, and 2.05 acres
of park space to be built in two separate phases on a 25.05 -acre site, pursuant to
Chapter 20.56 of the Municipal Code, The PCDP has three (3) components: 1)
Land Uses, Development Standards & Procedures; 2) Phasing Plan; and 3)
Design Guidelines.
C. Tentative Tract Map No. NT2012-002: A tentative tract map to establish lots for
residential development purposes pursuant to Title 19 of the Municipal Code.
d. Traffic Study No. TS2012-005: A traffic study pursuant to Chapter 15.40 (Traffic
Phasing Ordinance) of the Municipal Code.
e. Affordable Housing Implementation Plan No. AH2O12-001: A program specifying
how the proposed project would meet the City's affordable housing requirements,
pursuant to Chapter 19.53 (Inclusionary Housing) and Chapter 20.32 (Density
Bonus) of the Municipal Code.
City Council Ordinance No. 2013-6
Page 2 of 5
f. Development Agreement No. DA2012-003: A Development Agreement between
the applicant and the City of Newport Beach describing development rights and
public benefits, pursuant to Section 15.45.020.A.2.a of the Municipal Code and
General Plan Land Use Policy LU6.15.12.
2. The Property has a General Plan designation of Mixed -Use District Horizontal -2 (MU-
1 12), and the Property is located within the Airport Business Area, for which the Airport
Business Area Integrated Conceptual Development Plan (1CDP") has been adopted.
The ICDP allocates a maximum of 1,244 residential units and up to 11,500 square feet
of retail to be developed on the Property.
3. The Property is currently located within the City of Newport Beach ("City") Koll Center
Newport Planned Community and is designated as Industrial Site 1.
4. The Planning Commission held a study session on October 4, 2012, and public
hearings for the Project on December 6, 2012, December 20, 2012, and February 7,
2013. At the February 7 i hearing with a vote of 7-0, the Planning Commission
adopted Resolution No. 1908, recommending certification of the Uptown Newport
Final Environmental Impact Report (SCH No. 2010051094) and approval of the
Project to the City Council,
5. The City Council held a public hearing on February 26, 2013, in the City Hall Council
Chambers, at 3300 Newport Boulevard, Newport Beach, California. A notice of the
time, place and purpose of the aforesaid meeting was provided in accordance with
CEQA and the Newport Beach Municipal Code ("NBMC°). The Draft Environmental
Impact Report (Draft EIR) and Final Environmental impact Report (Final EIR) which
consists of the Comments, Responses to Comments, and Revisions to DEIR (Draft
Environmental Impact Report), Mitigation Monitoring and Reporting Program, staff
report, and evidence, both written and oral, were presented to and considered by the
City Council at the scheduled hearing.
SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION
1. The Uptown Newport Final Environmental Impact Report (SCH No. 2010051094) was
prepared for the Project in compliance with the California Environmental Quality Act
(CEQA), the State CEQA Guidelines, and City Council Policy K-3.
2. The City Council, having final approval authority over the Project, adopted and certified
as complete and adequate the Uptown Newport Final Environmental Impact Report,
and adopted "Findings and Facts in Support of Findings for the Uptown Newport
Project Final Environmental Impact Report" ("CEQA Findings") containing within
Resolution No. 2013-21 on February 26, 2013, which are hereby incorporated by
reference.
3. The City Council adopted a Statement of Overriding Considerations for the certification
of the Uptown Newport Final Environmental Impact Report (SCH No. 2010051094) by
Resolution No. 2013-22 on February 26, 2013, and is hereby incorporated reference.
City Council Ordinance No. 2013-6
Page 3 of 5
4. The City Council overruled the Orange County Airport Land Use Commission's
determination that the Uptown Newport project is inconsistent with the Airport Environs
Land Use Plan for the John Wayne Airport by Resolution No. 2013-23 on February 26,
2013, and is hereby incorporated by reference.
5. 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, attorneys' fees and damages which may be
awarded to a successful challenger.
SECTION 3. FINDINGS.
1. The proposed Project is consistent with the goals and policies of the Newport Beach
General Plan and Integrated Conceptual Development Plan. The City Council concurs
with the conclusion of the consistency analysis of the proposed project with these
goals and policies provided in the Uptown Newport Final Environmental Impact Report
(SCH No. 2010051094).
2. in accordance with NEMC Section 15.45.020.A.2.a and c, a development agreement
is required pursuant to General Plan Policy LU 6.15.12 as the project: 1) requires a
zoning code amendment that includes the development of more than fifty (50)
residential units; and 2) includes new non-residential development in Statistical Area
L4 (Airport Area).
3. The Development Agreement includes all the mandatory elements for consideration
and public benefits that are appropriate to support conveying the vested development
rights consistent with the General Plan and Government Code Section 65867.5.
SECTION 4. DECISION,
THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH DOES HEREBY ORDAIN AS
FOLLOWS:
1. The Development Agreement shall be adopted as depicted in Exhibit "A" attached
hereto and incorporated by reference.
2. if any section, subsection, sentence, clause or phrase of this ordinance is, for any
reason, held to be invalid or unconstitutional, such decision shall not affect the validity
or constitutionality of the remaining portions of this ordinance. The City Council hereby
declares that it would have passed this ordinance, and each section, subsection,
clause or phrase hereof, irrespective of the fact that anyone or more sections,
subsections, sentences, clauses and phrases be declared unconstitutional.
3. This action shall become final and effective thirty (30) days after the adoption of this
Ordinance.
City Council Ordinance No. 2013-6
Page 4 of 5
4. The Mayor shall sign and the City Clerk shall attest to the passage of this Ordinance.
This Ordinance shall be published once in the official newspaper of the City, and the
same shall become effective thirty (30) days after the date of its adoption.
This Ordinance was introduced at a regular meeting of the City Council of the City of Newport
Beach held on the 26th of February, 2013, and adopted on the 12th day of March, 2013, by
the following vote, to wit:
AYES, COUNCIL MEMBERS Gardner, Hill, Selich, Henn, Daigle, Mayor Curry
NOES, COUNCIL MEMBERS None
ABSENT, COUNCIL MEMBERS None.
ATTEST:
Leilani Brown, City Clerk
APPROVED AS TO FORM,
F
OICE OF CITY ATTORNEY:
r
Aaron Harp, City Attorney
bl
for the City of Newport Beach
Keith D. Curry, Mayor
City Council Ordinance No. 2013-6
Page 5 of 5
DEVELOPMENT AGREEMENT
See Attachment CC25 of the February 26, 2013, City Council Staff Report. Exhibit A is also
available for review at the City Hall in the offices of City Clerk and Planning Division of
Community Development Department and online at www,newportbeachr-a.gov
Attachment No. CC 25
Development Agreement
4J-9
500
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
and
UPTOWN NEWPORT LP
CONCERNING UPTOWN NEWPORT PROPERTY
Pl s 201 Eucvd*n Copp
501
TABLE OF CONTENTS
Page
1.
Definitions— .................. I ...... I ....... ...... I ... I— .............. ........... III -I ...... ..........
---3
2.
General Provisions.............................................................................................................7
2.1 Plan Consistency, Zoning Implementation...........................................................7
2.2 Binding Effect of Agreement.. ....... -I ... I ........ I ...... ...... I ...... I ......
I.I ........ 7
2.3 Landowner Representations and Warranties Regarding Ownership of the
Property and Related Matters Pertaining to this Agreement................................7
2.4 Term— .... I— ...... -I ........ —II ...... I ......... I ......... I ................ ........... . ..... I ....
........ 7
3.
Public Benefits.....:.............................................................................................................$
3.1 Public Benefit Fee............................................................................................_,...8
3.2 Other Public Benefits-- ... . .........
4.
Development of Project..................................................................................................
t 1
4.1 Applicable Regulations; Landowner's Vested Rights and City's
Reservation of Discretion With Respect to Subsequent Development
Approvals.. ....... I- ............ I-- ..... .... I ..... I— ......... .......... II.—I ....... I ............
4.2 No Conflicting Enactments,., ...... ............. —I --I ..... - .......... --- .... I .... I .....
--12
4.3 Reservations of Authority...................................................................................13
4.4 Tentative Subdivision Maps...............................................................................15
5,
Amendment or Cancellation of Agreement....................................................................15
6.
Enforcement....................................................................................................................15
7,
Annual Review of Landowner's Compliance With Agreement.....................................16
7.1 General... ...... I.I ............ II ........ —.—I ... ... I-- ..... III ........
16
7.2 Landowner Obligation to Demonstrate Good Faith Compliance .......................16
7.3 Procedure............................................................................................................16
7.4 Annual Review a Non -Exclusive Means for Determining and Requiring
Cure of Landowner's Default ............. ..._...,............... ,.,........ ,.... --- .... ,,..........
.16
8.
Events of Default............................................................................................................16
8.1 General Provisions..............................................................................................16
8,2 Default by Landowner...............................................................--I...,,,.....,...,...
17
8.3 City's Option to Terminate Agreement..............................................................17
8,4 Default by City---.— ... I .... I ... I .... ............. .... II I . ......... I—I ....... ... ---- ...........
17
8.5 Waiver. .... I ... I—I ..... I ... I ............... ......... ... I ...... ..... I ...... I ... I ... I ...
.... 1.. 18
8.6 Specific Performance Remedy............................................................................18
8.7 Monetary Damages.............................................................................................18
8.8 Additional City Remedy for Landowner's Default............................................18
&,9 No Personal Liability of City Officials;, Employees, or Agents ........................18
8.10 Recovery of Legal Expenses by Prevailing Party in Any Action ..... I— ..............19
9.
Force Majeure.................................................................................................................19
2 14 2413
Y2 4
502
Page
10. Indemnity Obligations of Landowner.........:...................................................................19
10.1 Indemnity Arising from Acts or Ommissions of Landowner .............................19
10.2 Third Party Litigation ............. ---- ...... ...... ........_..,......... ,......
,,..,....,..,,.,........20
10.3 Environmental Indemnity ... .................... ....................... ............ ,....... ,................ 20
1. Assignment.....................................................................................................................20
12. Mortgagee Rights.......... ..... .......... ....... - . .......... ....... -_- ............. .21
12.1 Encumbrances on Property.................................................................................21
12.2 Mortgagee Protection..........................................................................................22
12.3 Mortgagee Not Obligated ............................................... . . ...,.........,.,...22
12.4 Notice of Default to Mortgagee; Right of Mortgagee to Cure ............................22
11 Miscellaneous Terms......................................................................................................23
13.1
Notices................................................................................................................23
13.2
Project as Private Undertaking............................................................................23
13.3
Cooperation. .... -- ........ .......... ..... --- .......
— ............. .... 24
13.4
Estoppel Certificates...........................................................................................24
I3.5
Rules of Construction.........................................................................................24
13.6
Time Is of the Essence........................................................................................24
13.7
Waiver.................................................................................................................24
13.8
Counterparts.... ....... ............. ....... — .........
--- ...... .24
13.9
Entire Agreement...............................................................................................25
13.10
Severability.........................................................................................................25
13.11
Construction.. — .... ...... .......
....... .... 25
13.12
Successors and Assigns; Constructive Notice and Acceptance ..........................25
13.13
No Third Party Beneficiaries......................„...................................,...,,........,...,.26
13.14
Applicable Law and Venue. .......
....... ....... -26
13.15
Section Headings................................................................................................26
13.16
Incorporation of Recitals and Exhibits...............................................................26
13.17
Recordation........................................................_......,.,,........,.............................26
2 112011 Q
1503
DEVELOPMENT AGREEMENT
(Pursuant to California Government Code sections 65864-658695)
This DEVELOPMENT AGREEMENT (the "Ageement") is dated f'or reference
purposes as of the _ day of_, 2012 (the "A reement Date"), and is being entered into by and
between the CITY OF NEWPORT BEACH ("City"), and UPTO'WNI NEWPORT LP, a
Delaware limited partnership ("Landowner"). City and Landowner are sometimes collectively
referred to in this Agreement as the "Parties" and individually as a "Party."
RECITALS
A. Landowner is the owner of that certain real property located in the City of
Newport Beach, County of Orange, State of California commonly referred to as Uptown
Newport, located at 4311-4321 Jamboree Road (APN # 445-131-02, 445-131-03), and gencraliv
located on the west side of Jamboree Road, between Birch Street and Fairchild Road (the
"Poop, erty"). The Property is more particularly described in the legal description attached hereto
as Exhibit A and is depicted on the site map attached hereto as Exhibit B.
B. In order to encourage investment in, and commitment to, comprehensive planning
and public facilities financing, strengthen the public planning process and encourage private
implementation of the local general plan, provide certainty in the approval of projects in order to
avoid waste of time and resources, and reduce the economic costs of development by providing
assurance to property owners that they may proceed with projects consistent with existing land
use policies, rules, and regulations, the California Legislature adopted California Government
Code sections 65864-65$69.5 (the "Development Agreement Statute") authorizing cities and
counties to enter into development agreements with persons or entities having a legal or
equitable interest in real property located within their jurisdiction.
C. 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 "Develovir ent Agreement Ordinance"), This Agreement is
consistent with the Development Agreement Ordinance.
D. As detailed in Section 4 of this Agreement and the Development Plans (as defined
herein), Landowner has agreed to provide the following significant public benefits as
consideration for this Agreement:
Payment of a public benefit fee in the sum of thirty-two thousand five hundred dollars
($32,500,00) per residential dwelling unit developed as part of the Project (as defined
herein), including an annual adjustment to the public benefit fee based on the
Consumer Price Index ("CPI"),
Park land dedication and improvements
Municipal Code provisions, including the
(2) acres of on-site public parkland.
consistent with applicable State law and
dedication and improvement of over two
• Perpetual private maintenance of over two (2) acres of on-site public parks,
m 14 sal➢ +3 - r - 504
• Improvement of private open space, including paseos and urban plazas that wilt be
accessible to the public and connect the Project and surrounding properties to
promote connectivity and pedestrian travel in the Airport Arca.
• Remediation of soil and groundwater contamination on the Property that has existed
on-site since the mid- I980's.
• Reduction in greenhouse gases generated within the Airport Area.
• Reduction in electric, gas, water and sewer utility usage through the redevelopment of
an existing industrial manufacturing site into a residential mixed use project.
• Reduction of urban runoff volumes and implementation of stormwater runoff water
quality facilities that will improve the quality of stormwater runoff entering the
Newport Back Bay.
• Construction of affordable housing units within the Project that will provide
affordable housing opportunities to Newport Beach residents.
E. This Agreement is consistent with the City of Newport Beach General Plan,
including without limitation the General Plan's designation of the Property as "Mixed -Use
Horizontal -2," Airport Business Area Integrated Conceptual Development Plan, and the Uptown
Newport Planned Community Development Plan that is being adopted and approved by the City
Council concurrently with its approval of this Agreement in order to establish appropriate zoning
to regulate land use and development of the Property consistent with the General Plan,
F. In recognition of the significant public benefits that this Agreement provides, the
City Council has found that this Agreement: (i) is consistent with the City of Newport Beach
General Plan as of the date of this Agreement; (ii) is in the best interests of Health, safety, and
general welfare of City, its residents, and the public; (iii) is entered into pursuant to, and
constitutes a present exercise of, City's police power; (iv) is consistent and has been approved
consistent with the Final Environmental Impact Report for the City of Newport Beach General.
Plan 2006 Update (State Clearinghouse No, 200601 1 1 19) and the final Environmental Impact
Report (No. ER2012-001) (SCH#2010051094) ("EIR") that has been certified or is being
certified for approval by the City Council on or before the Agreement Date, both of which
analyze the environmental effects of the proposed development of the Project on the Property,
and all of the findings, conditions of approval and mitigation measures related thereto; and (v) is
consistent and has been approved consistent with provisions of California Government Code
section 65867 and City of Newport Beach Municipal Code chapter 15.45.
G. On February 7, 201 s; City's Planning Commission held a public hearing on this
Agreement, made findings and determinations with respect to this Agreement, and recommended
to the City Council that the City Council approve this Agreement.
H. On February 26, 2013, 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
2013, consistent with applicable provisions of the Development Agreement
2 H':06 0 G 5015
Statute and Development Agreement Ordinance, the City Council adopted its Ordinance No.
—. (the "Adopting Ordinance'), finding this Agreement to be consistent with the City of
Newport Beach General Plan and approving this Agreement.
AGREEMENT
NOW, THEREFORE„ City and Landowner agree as follows:
1. Definitions,
In addition to any terms defined elsewhere in this Agreement, the following terms when
used in this Agreement shall have the meanings set forth below:
"Action°' shall have the meaning ascribed in Section 8,10 of this Agreement.
"Adopting Ordinance" shall mean City Council Ordinance No, _ approving and
adopting this Agreement.
"Aeseement" shall mean this Development Agreement, as the same may be amended
from time to time.
"Aereement Date" shalt mean the date first written above, which date is the date the City
Council adopted the Adopting Ordinance.
"CEOA" shall meati the California Environmental Quality Act (California Public
Resources Code sections 21000-21177) and the implementing regulations promulgated
thereunder by the Secretary for Resources (California Code of Regulations, Title 14, section
15000 etseq.), as the same may be amended from time to time.
"City" shall mean the City of Newport Beach, a California charter city, and any successor
or assignee of the rights and obligations of the City of Newport Beach hereunder,
"City Council" shall mean the governing body of City.
"Citv's Affiliated Parties" shall have the meaning ascribed in Section 10.1 of this
Agreement,
"Claim" shall have the meaning ascribed in Section 10.1 of this Agreement.
"CPI Index" shall mean the Consumer Price Index published from time to time by the
United States Department of Labor for all urban consumers (all items) for the smallest.
geographic area that includes the City or, if such index is discontinued, such other similar index
as may be publicly available that is selected by City in its reasonable discretion.
"Cure, Period" shall have the meaning ascribed in Section 8.1 of this Agreement.
"Default" shall have the meaning ascribed to that term in Section 8.1 of this Agreement.
"Develop" or "Development" shall mean to improve or the improvement of the Property
for the purpose of completing the structures, improvements, and facilities comprising the Project,
> 14 2013 e} 500
including but not limited to: grading; tine construction of infrastructure and public facilities
related to the Project, whether located within or outside the Property; the construction of all of
the private improvements and facilities comprising the Project; the preservation or restoration, as
required of natural and man-made or altered open space areas; and the installation of
landscaping. The terms "Develop" and "Development," as used herein, do not include the
maintenance, repair, reconstruction, replacement, or redevelopment of any structure,
improvement, or facility after the initial construction and completion thereof.
"Development Agreement Ordinance" shall mean Chapter 15.45 of the City of Newport
Beach Municipal Code.
"Dev_elopment Agreement Statute" shall mean California Government Code sections
65564-65869.5, inclusive.
"Development Exactions" shall mean any requirement of City in connection with or
pursuant to any ordinance, resolution, rule, or official policy for the dedication of land, the
construction or installation of any public improvement or facility, or the payment of any fee or
charge in order to lessen, offset, mitigate, or compensate for the impacts of Development of the
Project on the environment or other public interests.
"Development Plan" shall mean all of the land use entitlements, approvals and permits
approved by the City for the Project on or before the Agreement Date, as the same may be
amended from time to time consistent with this Agreement. Such land use entitlements,
approvals and permits include;, without limitation, the following: (1) the Development rights as
provided under this Agreement; (2) Uptown Newport Planned Community Development Plan
Adoption No. PC2012-001 which consists of Land Uses, Development Standards and Procedures
(dated __), Design Guidelines (dated ),
and Phasing Plan (dated j; (3) Planned Community Development Pian
Amendment No. PD2011-003; (4) Tentative Tract Map No. NT2012-002; (5) Affordable
Housing Implementation Plan No. AH2012-001; (6) Traffic Study No. TS2012.005; (7) Site
Plan 9-19-2012); (It) Environmental Impact Report No. ER2012-001 (SCH#2010051094); and
(12) all conditions of approval and all mitigation-measures approved for the Project on or before
the Agreement Date.
"Development Regulations" shall mean the following regulations as they are in effect as
of the Effective Date and to the extent they govern or regulate the development of the Property,
but excluding any amendment or modification to the Development Regulations adopted,
approved, or imposed after the Effective Date that impairs or restricts Landowner's rights set
forth in this Agreement, unless such amendment or modification is expressly authorized by this
Agreement or is agreed to by Landowner in writing: the General Plan; the Development Plan;
and, to the extent not expressly superseded by the Development Plan or this Agreement, all other
land use and subdivision regulations governing the permitted uses, density and intensity of use,
design, improvement, and construction standards and specifications, procedures for obtaining
required City permits and approvals for development, and similar matters That may apply to
Development of the Project on the Property during the Term of this Agreement that are set forth
in Title 15 of the Municipal Code (buildings and construction), Title 19 of the Municipal Code
(subdivisions and inclusionary housing), and Title 20 of the Municipal Code (planning, zoning
and density bonus), but specifically excluding all other sections of the Municipal Code, including
II Nil 3 4
without limitation 'title 5 of the Municipal Code (business licenses and regulations).
Notwithstanding the foregoing, the term "Development Regulations," as used herein, does not
include any City ordinance, resolution, code, rule, regulation or official policy governing any of
the following: (i) the conduct of businesses, professions, and occupations; (ii) taxes and
assessments; (iii) the control and abatement of nuisances; (iv) the granting of encroachment
permits and the conveyance of rights and interests which provide for the use of or the entry upon
public property; or (v) the exercise of the power of eminent domain.
"Effective Date" shall mean the latest of the following dates, as applicable: (i) the date
that is thirty (30) days after the Agreement Date; (ii) if a referendum concerning the Adopting
Ordinance or any of the Development Regulations approved an or before the Agreement Date is
timely qualified for the ballot and a referendum election is held concerning the Adopting
Ordinance or any of such Development Regulations„ the date on which the referendum is
certified resulting in upholding and approving the Adopting Ordinance and such Development
Regulations and becomes effective, if applicable; (iii) if a lawsuit is timely filed challenging the
validity or legality of the Adopting Ordinance, this Agreement, and/or any of the Development
Regulations approved on or before the Agreement Date, the date on which said challenge is
finally resolved in favor of the validity or legality of the Adopting Ordinance, this Agreement,
and/or the applicable Development Regulations, whether such finality is achieved by a final non -
appealable judgment, voluntary or involuntary dismissal (and the passage of any time required to
appeal an involuntary dismissal), or binding written settlement agreement. Promptly after the
Effective Date occurs, the Parties agree to cooperate in causing an appropriate instrument to be
executed and recorded against the Property memorializing the Effective Date.
"Environmental Laws" means all federal, state, regional, county, municipal, and local.
laws, statutes, ordinances, rules, and regulations which are in effect as of the Agreement Date,
and all federal, state, regional, county, municipal, and local laws, statutes, rules, ordinances,
rules, and regulations which may hereafter be enacted and which apply to the Property or any
part thereof, pertaining to the use, generation, storage, disposal, release, treatment, or removal of
any Hazardous Substances, including without limitation the following: the Comprehensive
Environmental Response Compensation and Liability Act of 1980, 42 U.S.C. Sections 9601,
et �., as amended ("CERCLA"); the Solid Waste Disposal Act, as amended by the Resource
Conservation and Recovery Act of 1976, 42 U.S.C. Sections 6901, et sec ,, as arnended
("RCRA"); the Emergency Planning and Community Right to Know Act of 1986, 42 U.S.C.
Sections 11001 etspec ., as amended; the Hazardous Materials Transportation Act, 49 U.S.C.
Section 1801, et sem., as amended; the Clean Air Act, 42 U.S�C Sections 7401 et sea., as
amended; the Clean Water Act, 33 U.S.C. Section 1251, et sem., as amended; the Toxic
Substances Control Act, 15 U.S.C. Sections 2601 et seo., as amended; the Federal Insecticide,
Fungicide and Rodenticide Act, 7 U.S.C. Sections 136 et sea., as amended; the Federal Safe
Drinking Water Act, 42 U.S.C. Sections 300f et sea., as amended; the Federal Radon and Indoor
Air Quality Research Act, 42 U.S.C. Sections 7401 et Sea., as amended; the Occupational Safety
and Health Act, 29 U.S.C. Sections 651 et seo., as amended; and California Health and Safety
Code Section 25100, et M.
"General Plan" shall mean City's 2006 General Plan adopted by the City Council on July
25, 2006, by Resolution No. 2006-76, excluding any amendment after the Effective Date that
impairs or restricts Landowner's rights set forth in this Agreement, unless such amendment is
expressly authorized by this Agreement, is authorized by Sections 8 or 9, or is specifically
1: 14. 2013 0 5 150 2
agreed to by Landowner. 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.
"Hazardous Substances" means any toxic substance or waste, pollutant, hazardous
substance or waste, contaminant, special waste, industrial substance or waste, petroleum or
petroleum -derived substance or waste, or any toxic or hazardous constituent or additive to or
breakdown component from any such substance or waste, including without limitation any
substance, waste, or material regulated under or defined as "hazardous" or "toxic" under any
Environmental Law.
"Landowner" shalt mean Uptown Newport LP, a Delaware limited partnership, and any
successor or assignee to all or any portion of the right, title, and interest of Uptown Newport LP
in and to ownership of all or a portion of the Property.
"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,
"Mortgaeee" shall mean the holder of a beneficial interest under a Mortgage or any
successor or assignee of the Mortgagee.
"Notice of Default" shall have the meaning ascribed in Section 8.1 of this Agreement.
"Party" or "Parties" shall mean either City or Landowner or both" as determined by the
context.
"Project" shall mean all on-site and off-site improvements that Landowner is authorized
and/or required to construct with respect to each parcel of the Property, as provided in this
Agreement and the Development Regulations, as the same may be modified or amended from
time to time consistent with this Agreement and applicable law.
"Property" is described in Exhibit A and depicted on Exhibit B.
"Public Benefit Fee" shall have the meaning ascribed in Section 3.1 of this Agreement.
"Subsequent Development Approvals" shall mean all discretionary development and
building approvals that Landowner is required to obtain to Develop the Project on and with
respect to the Property after the Agreement Date consistent with the Development Regulations
and this Agreement, with the understanding that except as expressly set forth herein City shall
not have the right subsequent to the Effective Date and during the Term of this Agreement to
adopt or impose requirements for any such Subsequent Development Approvals that do not exist
as of the Agreement Date.
"Term" shall have the meaning ascribed in Section 2A of this Agreement.
"Termination Date" and "Lot Termination Date" shall have the meaning ascribed in
Section 2.4 of this Agreement.
"Transfer"shall have the meaning ascribed in Section 1 I of this Agreement.
214:2013 vi 6 509
2. General Provisions.
2.1 Plan Consistency, Zoning Implementation.
This Agreement and the Development Regulations applicable to the Property will cause
City's zoning and other land use regulations for the Property to be consistent with the General
Plan.
22 Binding Effect of Agreement.
The Property is hereby made subject to this Agreement. Development of the Property is
hereby authorized and shall be carried out in accordance with the terms of this Agreement.
23 Landowner Representations and Warranties Regarding OwnprshiDof the Property
and Related Matters Pertaining to this Agreement.
Landowner and each person executing this Agreement on behalf of Landowner hereby
represents and warrants to City as follows: (i) that Landowner is the owner of the fee simple title
to the Property; (ii) if Landowner or any co-owner comprising Landowner is a legal entity that
such entity is duly formed and existing and is authorized to do business in the State of California;
(iii) if Landowner or any co-owner comprising Landowner is a natural person that such natural
person has the legal right and capacity to execute this Agreement; (iv) that all actions required to
be taken by all persons and entities comprising Landowner to enter into this Agreement have
been taken and that Landowner has the legal authority to enter into this Agreement; (v) that
Landowner's entering into and performing its obligations set forth in this Agreement will not
result in a violation of any obligation, contractual or otherwise, that Landowner or any person or
entity comprising Landowner has to any third party, (vi) that neither Landowner nor any co-
owner comprising Landowner is the subject of any voluntary or involuntary bankruptcy or
insolvency petition; and (vii) that Landowner has no actual knowledge of any pending or
threatened claims of any person or entity affecting the validity of any of the representations and
warranties set forth in clauses (i) -(vi), inclusive, or affecting Landowner's authority or ability to
enter into or perform any of its obligations set forth in this Agreement.
2.4 Term.
The term of this Agreement (the "Term") shall commence on the Effective Date and shall
terminate an the "Termination Date."
Notwithstanding any other provision set forth in this Agreement to the contrary, if either
Party reasonably determines that the Effective Date of this Agreement will not occur because (i)
the Adopting Ordinance or any of the Development Regulations approved on or before the
Agreement Date for the Project hasthave been disapproved by City's voters at a referendum
election or (ii) a final non -appealable judgment is entered in a judicial action challenging the
validity or legality of the Adopting Ordinance, this Agreement, and/or any of the Development
Regulations for the Project approved on or before the Agreement Date such that this Agreement
and/or any of such Development Regulations istare invalid and unenforceable in whole or in
such a substantial part that the judgment substantially impairs such Party's rights or substantially
increases its obligations or risks hereunder or thereunder, then such Party, in its sole and absolute
discretion, shall have the right to terminate this Agreement upon delivery of a written notice of
'.14201)0 1 510
termination tothe other Party, in which event neither Party shall have any further rights or
obligations hereunder except that Landowner's indemnity obligations set forth in Article 10 shall
remain in full force and effect and shall be enforceable, and the Development Regulations
applicable to the Project and the Property only (but not those general Development Regulations
applicable to other properties in the City) shall similarly be null and void at such time.
The Tenninat'ron Date shall be the earliest of the following dates. (i) the fifteenth (1501)
anniversary of the Effective Date, as said date may be extended in accordance with Section 5.1
of this Agreement, (ii) such earlier date that this Agreement may be terminated in accordance
with Articles 5, 7, and/or Section 8.3 of this Agreement and/or Sections 65865.1 andfor 65868 of
the Development Agreement Statute; (iii) as to any separate legal lot within the Property (but not
as to the balance of the Property or the portion thereof that remains subject to this Agreement at
such time), upon the "Lot Termination Date" (defined below); or (iv) completion of the Project
in accordance with the terms of this Agreement, including Owner's complete satisfaction,
performance, and payment, as applicable, of all Development Exactions, the issuance of all
required final occupancy permits, and acceptance by City or applicable public agency(ies) or
private entity(ies) of all required offers of dedication.
As used herein, the term "Lot Termination Date" for any separate legal lot within the
Property means the date on which all of the following conditions have been satisfied with respect
to said lot: (i) the lot has been finally subdivided and sold or leased (for a period longer than one
year), individually or in a "bulk" of four or fewer lots, to a member of the public or other
ultimate user; (ii) a final Certificate of Occupancy or "Release of Utilities" has been issued for
the building or buildings approved for construction on said lot; (iii) the duties under this
Agreement and the Development 'Plan have been fully satisfied with respect to said lot; (iv) the
Master Site Improvements as described in and required by the Development Plan, and approved
as part of the Master Site Development Pian review, have been completed for said lot.
Notwithstanding any other provision set forth in this Agreement to the contrary, the
provisions set forth in Article 10 and Section 1110 (as well as any other Landowner obligations
set forth in this Agreement that are expressly written to survive the Termination Date) shall
survive the Termination Date of this Agreement.
Public Benefits.
3.1 Public Benefit Fee.
As consideration for City's approval and performance of its obligations set forth in this
Agreement, Landowner shall pay to City a fee that shall be in addition to any other fee or charge
to which the Property and the Project would otherwise be subject (herein, the "Public Benefit
Fee") in the sum of Thirty -Two Thousand Five Hundred Dollars ($32,500,00) per residential
dwelling unit Developed as part of the Project, with the unpaid balance of said Public Benefit
Fee increased beginning on January 1, 2015, by the percentage increase in the CPI Index
between the Effective Date and said January I" date (the first "Adjustment Date") and thereafter
with the unpaid balance of said Public Benefit Fee increased on each subsequent January I
during the Term of this Agreement (each, an "Adjustment Date") by the percentage increase in
the CPI Index in the year prior to the applicable Adjustment Date, The amount of the percentage
increase in the CPI Index on the applicable Adjustment Dates shall in each instance be calculated
214:20110 6 511
based on the then most recently available CPI Index figures such that, for example, if the
Effective Date of this Agreement falls on July I and the most recently available CPI Index figure
on the first Adjustment Date (January I of the following year) is the CPI Index for November of
the preceding year, the percentage increase in the CPI Index for that partial year (a 6 -month
period) shall be calculated by comparing the CPI Index for November of the preceding year with
the CPI Index for May of the preceding year (a 6 -month period). In no event, however, shall
application of the CPI Index reduce the amount of the Public Benefit Fee (or unpaid portion
thereof) below the amount in effect prior to any applicable Adjustment Date. Landowner shall
pay the Public Benefit Fee on a per unit basis at the time each residential building permit is
issued. Notwithstanding any other provision set forth in this Agreement to the contrary, during
the Term of this Agreement City shall not increase the Public Benefit Fee except pursuant to the
CPI Index as stated in this Section 3.1. Landowner acknowledges by its approval and execution
of this Agreement that it is voluntarily agreeing to pay the Public Benefit Fee, that its obligation
to pay the Public Benefit Fee is an essential term of this Agreement and is not severable from
City's obligations and Landowner's vesting rights to be acquired hereunder, and that Landowner
expressly waives any constitutional, statutory, or common law right it might have in the absence
of this Agreement to protest or challenge the payment of such fee on any ground whatsoever,
including without limitation pursuant to the Fifth and Fourteenth Amendments to the United
States Constitution, California Constitution Article I Section 19, the Mitigation Pee Act
(California Goveminent Code Section 66000 et seg.), or otherwise. In addition to any other
remedy set forth in this Agreement for Landowner's default, if Landowner shall fail to timely
pay any portion of the Public Benefit Fee when due City shall have the right to withhold issuance
of any further building permits, occupancy permits, or other development or building permits for
the Project.
3.2 Other Public Benefits.
In addition to the Public Benefit Fee, the direct and indirect benefits City expects to
receive pursuant to this Development Agreement are as follows.
3.2.1 Park Land Dedication and Improvements. Based upon the number of residential
dwelling units approved in the Development Plan, City calculated that Landowner`s park land
dedication for the Project pursuant to the City General Plan, Government Code Section 66477
("Quimby Act") and Municipal Code Chapter 19.52 is 13.62 acres, City acknowledges that
Landowner's performance of its obligations as set forth in this section satisfies all of
Landowner's General Plan, Quimby Act and Municipal Code Chapter 19.52 obligations
governing park land dedication and fees. City acknowledges that Landowner shall be eligible to
receive credit against the payment of fees or dedication of land consistent with the General Plan,
Quimby Act and Municipal Code Chapter '19.52. As of the Effective Date, the established fair
market value per acre figure used in assessing in -lieu of park dedication fees equals Two Million
Five Hundred Thousand Dollars ($2„500,000). Landowner fees and credit shall be based on the
established Two Million Five Hundred Thousand Dollars ($2,500,000) per acre. Landowner
shall undertake the following:
i. On -Site Parks_ Landowner shall construct and improve two
(2), one (1) acre parks within the Property pursuant to the Development Plan. Landowner shall
offer the two (2) on-site parks to the City for dedication in fee simple, and City shall accept
Landowner's offer for dedication provided that the parks have been completed in accordance
1111000 9 1512
with the requirements of the Development Plan. The parks may be offered for dedication and
accepted by the City either together as one action or separately at different times. The two (2)
parks shall be privately maintained (by Landowner or the Master Association as defined in the
Development Plan) in perpetuity and in accordance with the Development Plan as set forth in a
separate written maintenance and license agreement approved as to form by the City Attorney.
Such agreement shall grant Landowner and/or the private Master Association access to the parks
and the park facilities, including drainage and stormwater runoff facilities, for operation and
maintenance. The maintenance and license agreement shall also provide for Landowner or
Master Association's responsibility for maintaining stormwater and water quality improvements
in perpetuity and in accordance with the Development Plan. Landowner shall be eligible to
receive credit against the payment of fees or dedication of land for park construction and
dedication. The dollar amount of the credit shall be based on land value and final park
construction and improvement costs, (excluding land value), which shall be review and approved
by the Community Development Director and shall include, but not be limited to, the cost to
design, engineer, construct, install, supervise and inspect the park and improvements, including
any permit and inspection fees to be paid to City with respect thereto and the cost of obtaining
and maintaining in effect security instruments for the work. The credit shall be determined by
the Community Development Director at the time the City accepts the offer of dedication.
ii. Public Recreational Open Space Areas. Landowner shall
construct and improve public recreational open space areas pursuant to the Development Plan.
Public recreational open space areas shall be open to the public but privately owned and
maintained by Landowner or a private master association in perpetuity and in accordance with
the Development Plan. Pursuant to General Plan land use policy 6.15.15, Landowner may be
eligible to receive up to thirty percent (30%) credit against the payment of fees or dedication of
land for such open space recreational areas. The dollar amount of the credit shall be based on
land value established by multiplying the eligible acreage by Two Million Five Hundred
Thousand Dollars ($2,500,000), The percentage credit and the eligible acreage shall be
determined by the Community Development Director at the time final improvement plans are
approved. The acreage of open space that is accessible to the public during daylight hours,
visible from public rights-of-way and of sufficient size to accommodate recreational use by the
public maybe eligible for credit. Public open space recreational area construction costs shalt not
be considered for credit,
iii. Private Recreational Amenities. Landowner shall construct
and improve private recreational arnenities and open space pursuant to the Development Plan.
Private recreational amenities shall be privately owned and maintained in perpetuity by
Landowner or a private master association. For private recreational amenities, Landowner may
be eligible to receive up to twenty percent (20%) credit against the payment of fees or dedication
of land. The dollar amount of the credit shall be based on Iand value established by multiplying
the eligible acreage by Two Million Five Hundred Thousand Dollars ($2,500,000). The
percentage credit and the eligible acreage shall be determined by the Community Development
Director at the time building plans are submitted. Credited private recreational facilities include
active recreation facilities such as playfields, turfed play areas, tot lots, recreation buildings,
swimming pools and playing courts, and similar facilities. Privately maintained bicycle or
hiking trails that connect to trails outside the Property and which are open to the public shall be
eligible. Passive open space, such as setback areas and passive greenbelts shall not be eligible,
a uani s us 10 51.E
iv. In -lieu of parkland dedication fees shall be paid to the City
prior to the issuance of building permits. Payment shall be made for all units included on any
final maps) at the time that the first building permit is issued for any single unit included on a
final map(s). The fee amount shall be based on the pro -rated gross acreage of the final map
minus any parkland dedication and applicable credits for recreational improvements approved by
the City pursuant to the General Plan and the Subdivision Code within the area encompassed by
the final map. For example, if a final map encompasses 10 acres of the 25.05 acre planned
community (or 39.92% of the total acreage), the fee required prior to final map recordation
would be 39.920/0 of the 13.62 acre parkland dedication requirement minus any parkland
dedication and any approved credits for recreational improvements.
3.2.2 AF11P. The Parties have agreed to an Affordable Housing Implementation Plan
No. AH2O12-001(the "AHIP") to identify the maturer in which Project is to satisfy the City's
affordable housing requirements, pursuant to Municipal Code Chapter 19.53 (Inclusionary
Housing) and Chapter 20.32 (Density Bonus). Landowner agrees to implement the AHIP.
3.2.3 Under rg_ounding of Electrical Lines
City and Landowner may cooperate in good faith with each other in connection with the
formation of an assessment district, if any, and construction of underground utility lines.
4. Development of Project.
4.1 Applicable Regulations: Landowner's Vested Rights and City's Reservation of
Discretion With ResRect to Subse uent Development Approvals.
Other than as expressly set forth in this Agreement, during the Term of this Agreement,
(i) Landowner shall have the vested right to Develop the Project on and with respect to the
Property in accordance with the terms of the Development Regulations and this Agreement and
(ii) City shall not prohibit or prevent development of the Property on grounds inconsistent with
the Development Regulations or this Agreement, Notwithstanding the foregoing, nothing herein
is intended to limit or restrict City's discretion with respect to (i) review and approval
requirements contained in the Development Regulations, (ii) exercise of any discretionary
authority City retains under the Development Regulations, (iii) the approval, conditional
approval, or denial of any Subsequent Development Approvals that are required for
Development of the Project as of the Effective Date, or (iv) any environmental approvals that
may be required under CEQA or any other federal or state law or regulation in conjunction with
any Subsequent Development Approvals that may be required for the Project, and in this regard,
as to future actions referred to in clauses (i) -(iv) of this sentence, City reserves its full discretion
to the same extent City would have such discretion in the absence of this Agreement. In
addition, it is understood and agreed that nothing in this Agreement is intended to vest
Landowner's rights with respect to any laws, regulations, rules, or official policies of any other
goveimtmental agency or public utility company with jurisdiction over the Property or the Project,
or any applicable federal or state laws, regulations, rules, or official policies that may be
inconsistent with this Agreement and that override or supersede the provisions set forth in this
Agreement, and regardless of whether such overriding or superseding Iaws, regulations, rides, or
official policies are adopted or applied to the Property or the Project prior or subsequent to the
Agreement Date.
114 711110 11 1514
Landowner has expended and will continue to expend substantial amounts of time and
money planning and preparing for Development of the Project. Landowner represents and City
acknowledges that Landowner would not make these expenditures without this Agreement, and
that Landowner is and will be making these expenditures in reasonable reliance upon its vested
rights to Develop the Project as set forth in this Agreement,.
Landowner may apply to City for permits or approvals necessary to modify or amend the
Development specified in the Development Regulations, provided that the request does not
propose an increase in the maximum density, intensity, height, or size of proposed structures, or
a change in use that generates more peak hour traffic or more daily traffic and, in addition,
Landowner may apply to City for approval of minor amendments to existing tentative tract maps,
tentative parcel maps, or associated conditions of approval, consistent with City of Newport
Beach Municipal Code section 19.12.090. This Agreement does not constitute a promise or
commitment by City to approve any such permit or approval, or to approve the same with or
without any particular requirements or conditions, and City's discretion with respect to such
matters shall be the same as it would be in the absence of this Agreement.
4,2 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 or the Property any
ordinance, policy, rule, regulation, or other measure relating to Development of the Project that
is enacted or becomes effeetive after the Effective Date to the extent it conflicts with this
Agreement. This Section 4.2 shall not restrict City's ability to enact an ordinance, policy, rule,
regulation, or other measure applicable to the Project pursuant to California. Government Code
Section 65866 consistent with the procedures specified in Section 4.3 of this Agreement. In
Pardee Construction Co. vz Cioy ofCamarillo (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 Linder 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 Parolee case by acknowledging and providing in this Agreement that Landowner
shall have the vested right to Develop the Project on and with respect to 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 Effective Date, No City moratorium or other similar
limitation relating to the rate, timing, or sequencing of the Development of all or any part of the
Project and whether enacted by initiative or another method, affecting subdivision maps,
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.
2uzu3 a 12 515
4.3 Reservations of Authority.
Notwithstanding any other provision set forth in this Agreement to the contrary, the laws,
rules, regulations, and official policies set forth in this Section 4.3 shall apply to and govern the
Development of the Project on and with respect to the Property.
4.3.1 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 such procedural
regulations are adopted and applied City-wide or to all other properties similarly situated in City.
4.3.2 Processing; and Permit Fees. City shall have the right to charge and
Landowner shall be required to pay all applicable processing and permit fees to cover the
reasonable cost to City of processing and reviewing applications and plans for any required
Subsequent Development Approvals, building permits, excavation and grading permits,
encroachment permits, and the like, for performing necessary studies and reports in connection
therewith, inspecting the work constructed or installed by or on behalf of Owner, and
monitoring compliance with any requirements applicable to Development of the Project, all at
the rates in effect at the time fees are due.
43.3 Consistent Future Citv Regulations. City ordinances, resolutions,
regulations, and official policies governing Development which do not conflict with the
Development Regulations, or with respect to such regulations that do conflict, where Landowner
has consented in writing to the regulations,. shall apply to the Property.
4.3.4 Development Exactions Apdrlicable to Property. During the Term of this
Agreement, Landowner shall be required to satisfy and pay all Development Exactions at the
time performance or payment is due to the same extent and in the same amount(s) that would
apply to Landowner and the Project in the absence of this Agreement; provided, however, that to
the extent the scope and extent of a particular Development Exaction for the Project has been
established and fixed by City in this Agreement or the conditions of approval for any of the
Development Regulations approved on or before the Agreement Date City shall not alter,
increase, or modify said Development Exaction in a manner that is inconsistent with such
Development Regulations without Landowner's prior written consent or as may be otherwise
required pursuant to overriding federal or state laws or regulations (Section 4.3.5 bereinbelow).
In addition, nothing in this Agreement is intended or shall be deemed to vest Landowner against
the obligation to pay any of the following (which are not included within the definition of
"Development Exactions") in the full amount that would apply in the absence of this Agreement:
(i) 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; (ii)
fees and charges levied by any other public agency, utility, district, or joint powers authority,
regardless of whether City collects those fees and charges; or (iii) community facility district
special taxes or special district assessments or similar assessments, business license fees, bonds
or other security required for public improvements, transient occupancy taxes, sales taxes,
214.0110 13 510
property taxes, sewer lateral connection fees, water service connection fees, new water meter
fees, and the Property Development Tax payable under Section 3.12 of City's Municipal Code.
4.3,5 Overriding Federal and State Laws and Re ug lations. 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 provisions of any such overriding
federal or state laws and regulations, provided that (i) Landowner does not waive its right to
challenge or contest the validity of any such purportedly overriding federal, state, or City law or
regulation; and (ii) upon the discovery of any such overriding federal, state, or City law or
regulation that prevents or precludes compliance with any provision of this Agreement, City or
Landowner shall provide to the other Party a written notice identifying the federal, state, or City
law or regulation, together with a copy of the law or regulation and a brief written statement of
the conflict(s) between that law or regulation and 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 overriding federal, state, or City law or regulation. In such
negotiations, City and Landowner agree to preserve the terms of this Agreement and the rights of
Landowner as derived from this Agreement to the maximum feasible extent while resolving the
conflict. City agrees to cooperate with Landowner at no cost 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 overriding federal, state, or
City law or regulation; provided, however, that the approval of such changes by City shall be
subject to the discretion of City, consistent with this Agreement.
4.3.6 Public Health and Safety. Any City ordinance, resolution, rule, regulation,
program, or official policy that is necessary to protect persons on the Property or in the
immediate vicinity from conditions dangerous to their health or safety, as reasonably determined
by City, shall apply to the Property, even though the application of the ordinance, resolution, rule
regulation, program, or official policy would result in the impaimient of Landowner's vested
rights under this Agreement.
4.3.7 Uniform Building Standards, Existing and future building and building -
related standards set forth in the uniform codes adopted and amended by City from time to time,
including building, plumbing, mechanical, electrical, housing, swimming pool, and fire codes,
and any modifications and amendments thereof shall all apply to the Project and the Property to
the same extent that the same would apply in the absence of this Agreement.
4,3.$ Public Works Improvements. To the extent Landowner constructs or
installs any public improvements, works, or facilities, the City standards in effect for such public
improvements, 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,
43.9 No Guarantee or Reservation of Utility Capacittyr Notwithstanding any
other provision set forth in this Agreement to the contrary, nothing in this Agreement is intended
or shall be interpreted to require City to guarantee or reserve to or for the benefit of Landowner
or the Property any utility capacity, service, or facilities that may be needed to serve the Project,
z 14 '013 ,, 14 1-17
whether domestic or reclaimed water service, sanitary sewer transmission or wastewater
treatment capacity, downstream drainage capacity, or otherwise, and City shall have the right to
limit or restrict Development of the Project if and to the extent that City reasonably determines
that inadequate utility capacity exists to adequately serve the Project at the time Development is
scheduled to commence. Notwithstanding the foregoing, City covenants to provide utility
services to the Project on a non-discriminatory basis (i.e., on the same terms and conditions that
City undertakes to provide such services to other similarly situated new developments in the City
of Newport Beach as and when service connections are provided and service commences).
4.4 Tentative Subdivision Maps
City agrees that Landowner may file and process new and existing vesting tentative maps
for the Property consistent with California Government Code sections 66498.1-66498.9 and City
of Newport Beach Municipal Code chapter 19.20. Pursuant to the applicable provision of the
California Subdivision Map Act (California Government Code section 66452.6(a)), the life of
any tentative subdivision map approved for the Property, whether designated a "vesting tentative
map" or otherwise, shall be extended for the Term of this Agreement.
4.5 Light Industrial Land Uses
Light industrial land uses will cease on the Property as of March 12, 2027.
5. Amendment or Cancellation of Agreement
Other than modifications of this Agreement under Section 8.3 of this 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 15.45.060 or by unilateral termination by City in the
event of an uncured default of Landowner,
5.1 Extension.
Landowner may request up to, and upon receipt of a written request from Landowner,
City shall grant two (2) five (5) year extensions that extend the Term of this Agreement for a
total of ten (10) additional years provided that Landowner has submitted its written request to
extend this Development Agreement and the following has occurred: (1) For the first five (5)
year extension, building permits for the two hundred fiftieth (250th) units have been issued; and
(2) For the second five (5) year extension, receipt of building permits for five hundredth (500th)
units have been issued.
6. Enforcement.
Unless this Agreement is amended, canceled, modified, or suspended as authorized
herein or pursuant to California Government Code section 65869.5, this Agreement shall be
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.
>ai20130 15 151 S'
7. Annual Review of Landowner's Compliance With Agreement,
7.1 General.
City shall review this Agreement once during every twelve (12) month period following
the Effective Date for compliance with the terms of this Agreement as provided in Government
Code section 65865.1. Landowner (including any successor to the owner executing this
Agreement on or before the Agreement Date) shall pay City a reasonable fee in an amount City
may reasonably establish from time to time to cover the actual and necessary costs for the annual
review. City's failure to timely provide or conduct an annual review shall not constitute a
Default hereunder by City.
7.2 Landowner Obligation to Demonstrate Good Faith Compliance.
During each annual review by City, Landowner is required to demonstrate good faith
compliance with the terms of the Agreement. Landowner agrees to furnish such evidence of
good faith compliance as City, in the reasonable exercise of its discretion, may require, thirty
(30) days prior to each anniversary of the Effective Date during the Tenn.
7.3 Procedure.
The City Council of City shall conduct a duly noticed hearing and shall determine, on the
basis of substantial evidence, whether or not Landowner has, for the period under review,
complied with the terms of this Agreement. If the City Council finds that Landowner has so
complied, the annual review shall be concluded. If the City Council finds, on the basis of
substantial evidence, that Landowner has not so complied, written notice shall be sent to
Landowner by first class mail of the City Council's finding of non-compliance, and Landowner
shall be given at least ten (10) days to cure any noncompliance that relates to the payment of
money and thirty (30) days to cure any other type of noncompliance. If a cure not relating to the
payment of money cannot be completed within thirty (30) days for reasons which are beyond the
control of Landowner, Landowner must commence the cure within such thirty (30) days and
diligently pursue such cure to completion. If Landowner fails to cure such noncompliance
within the time(s) set forth above, such failure shall be considered to be a Default and City shall
be entitled to exercise the remedies set forth in Article 8 below.
7.4 Annual Review tri Non -Exclusive Means for Determining and Requiring Cure of
Landowner's Default.
The annual review procedures set forth in this Article 7 shall not be the exclusive means
for City to identify a Default by Landowner or limit City's rights or remedies for any such
Default.
8. Events of Default.
8.1 General Provisions.
In the event of any material default, breach, or violation of the terms of this Agreement
("Default' ), the Party alleging a Default shall have the right to deliver a written notice (each, a
"Notice of Default") to the defaulting Party. The Notice of Default shall specify the nature of the
16
51�
alleged Default and a reasonable manner and sufficient period of time (twenty (20) days if the
Default relates to the failure to timely make a monetary payment due hereunder and not less than
thirty (30) days in the event of non -monetary Defaults)" in which the Default must be cured (the
"Cure Period"), During the Cure Period, the Party charged shall not be considered in Default for
the purposes of termination of this Agreement or institution of legal proceedings. If the alleged
Default is cured within the Cure Period, then the Default thereafter shall be deemed not to exist.
If a non -monetary Default cannot be cured during the Cure Period with the exercise of
commercially reasonable diligence, the defaulting Party must promptly commence to cure as
quickly as possible, and in no event later than thirty (30) days after it receives the Notice of
Default, and thereafter diligently pursue said cure to completion.
8.2 Default by Landowner.
If Landowner is alleged to have committed Default and it disputes the claimed Default, it
may make a written request for an appeal hearing before the City Council within ten (10) days of
receiving the Notice of Default, and a public hearing shall be scheduled at the next available City
Council meeting to consider Landowner's appeal of the Notice of Default. Failure to appeal a
Notice of Default to the City Council within the ten (10) day period shall waive any right to a
hearing on the claimed Default. If Landowner's appeal of the Notice of Default is timely and in
good faith but after a public hearing of Landowner's appeal the City Council concludes that
Landowner is in Default as alleged in the Notice of Default, the accrual date for commencement
of the thirty (30) day Cure Period provided in Section 8.1 shall be extended until the City
Council's denial of Landowner's appeal is communicated to Landowner.
8.3 City's Option to Terminate Agreement.
In the event of an alleged Landowner Default, City may not terminate this Agreement
without first delivering a written Notice of Default and providing Landowner with the
opportunity to cure the Default within the Cure Period, as provided in Section 8.1, and
complying with Section 8.2 if Landowner timely appeals any Notice of Default with respect to a
non -monetary Default. A termination of this Agreement by City shall be valid only if good
cause exists and is supported by evidence presented to the City Council at or in connection with
a duly noticed public hearing to establish the existence of a Default. The validity of any
termination may be judicially challenged by Landowner. Any such judicial challenge must be
brought within ninety (90) calendar days of service on Landowner, by first class mail, postage
prepaid, of written notice of termination by City or a written notice of City's determination of an
appeal of the Notice of Default as provided in Section 8.2.
8A Default by Cites
If Landowner alleges a City Default and alleges that the City has not cured the Default
within the Cure Period, Landowner may pursue any equitable remedy available to it under this
Agreement, including, without limitation, an action for a writ of mandamus, injunctive relief, or
specific performance of City's obligations set forth in this Agreement. Upon a City Default, any
resulting delays in Landowner's performance hereunder shall neither be a Landowner Default
nor constitute grounds for termination or cancellation of this Agreement by City and shall, at
Landowner's option (and provided Landowner delivers written notice to City within thirty (30)
;4 701.1 s 17 1520
days of the commencement of the alleged City Default), extend the Term for a period equal to
the length of the delay.
8.5 Waiver,
Failure or delay by either Party in delivering a Notice of Default shall not waive that
Party's right to deliver a future Notice of Default of the same or any other Default.
8.6 Specific Performance Remedy.
Due to the size, nature, and scope of the Project, it will not be practical or possible to
restore the Property to its pre-existing condition once implementation of this Agreement has
begun. After such implementation, both Landowner and City may be foreclosed from other
choices they may have had to plan for the development of the Property, to utilize the Property or
provide for other benefits and alternatives. Landowner and City have invested significant time
and resources and performed extensive planning and processing of the Project in agreeing to the
terms of this Agreement and will be investing even more significant time and resources in
implementing the Project in reliance upon the terms of this Agreement. It is not possible to
determine the sum of money which ,vould adequately compensate Landowner or City for such
efforts. For the above reasons, City and Landowner agree that damages would not be an
adequate remedy if either City or Landowner fails to carry out its obligations under this
Agreement. Therefore, specific performance of this Agreement is necessary to compensate
Landowner if City fails to carry out its obligations under this Agreement or to compensate City if
Landowner falls to carry out its obligations under this Agreement.
8.7 Monetary Damaees.
The Parties agree that monetary damages shall not be an available remedy for either Party
for a Default hereunder by the other Party; provided, however, that (i) nothing in this Section 8.7
is intended or shall be interpreted to limit or restrict City's right to recover the Public Benefit
Fees due from Landowner as set forth herein; and (ii) nothing in this Section 8.7 is intended or
shall be interpreted to limit or restrict Owner's indemnity obligations set forth in Article 10 or
the right of the prevailing Party in any Action to recover its litigation expenses, as set forth in
Section 8.10.
8.8 Additional City Remedy for Landowner's Default,
In the event of any Default by Landowner, in addition to any other remedies which may
be available to City, whether legal or equitable, City shall be entitled to receive and retain any
Development Exactions applicable to the Project or the Property, including any fees, grants,
dedications, or improvements to public property which it may have received prior to
Landowner's Default without recourse from Landowner or its successors or assigns.
8.9 No Personal Liability of City Officials. Empiovees, or Agents.
No City official, employee, or agent shall have any personal liability hereunder for a
Default by City of any of its obligations set forth in this Agreement.
14. 2011 v3 18 1521.
8.10 Recovery of Legal Expenses b evailine Party in AnY Action.
In any judicial proceeding, arbitration, or mediation (collectively, an "Action") between
the Parties that seeks to enforce the provisions of this Agreement or arises out of this Agreement,
the prevailing Party shall recover all of its actual and reasonable costs and expenses, regardless
of whether they would, be recoverable under 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 isprosecutedto a final judgment or
decision.
9� Force Maieure.
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 specified above, nonperformance shall not be excused because of the act or
omission of a third person. in no event shall the occurrence of an event of force majeure operate
to extend the Term of this Agreement. In addition, in no event shall the time for performance of
a monetary obligation, including without limitation Landowner's obligation to pay Public
Benefit Fees, be extended pursuant to this Section.
10. Indemnity Oblieations of Landowner
10.1 Indemnity Arisiniz From Acts or Omissions of Landowner.
Except to the extent caused by the intentional misconduct or negligent acts, errors or
omissions of City or one or more of City's officials, employees, agents, attorneys, and
contractors (collectively, the "City's Affiliated Parties") , Landowner shall indemnify, defend,
and hold harmless City and City's Affiliated Parties from and against all suits, claims, liabilities,
losses, damages, penalties, obligations, and expenses (including but not limited to reasonable
attorneys' fees and costs) (collectively, a "Claim") that may arise, directly or indirectly, from the
acts, omissions, or operations of Landowner or Landowner's agents, contractors, subcontractors,
agents, or employees in the course of Development of the Project or any other activities of
Landowner relating to the Property or pursuant to this Agreement. City shall have the right to
select and retain counsel to defend any Claim filed against City and/or any of City's Affiliated
Parties, and Landowner shall pay the reasonable cost for defense of any Claim. The indemnity
provisions in this Section 10.1 shall commence on the Agreement Date, regardless of whether the
Effective Date occurs, and shall survive the Termination Date.
10.2 Third Partv Litigation.
In addition to its indemnity obligations set forth in Section 10.1, Landowner shall
indemnify, defend, and hold harmless City and City's Affiliated Parties from and against any
Claim against City or City's Affiliated Parties seeking to attack, set aside, void, or annul the
approval of this Agreement, the Adopting Ordinance, any of the Development Regulations for
the Project (including without limitation any actions taken pursuant to CEQA with respect
2 W 20130 19 1522
thereto), any Subsequent Development Approval, or the approval of any permit granted pursuant
to this Agreement. Said indemnity obligation shall include payment of reasonable attorney's
fees, expert witness fees, and court costs. City shall promptly notify Landowner of any such
Claire and City shall cooperate with Landowner in the defense of such Claim. If City fails to
promptly notify Landowner of such Claim, Landowner shall not be responsible to indemnify,
defend, and hold City harmless from such Claim until Landowner is so notified and if City fails
to cooperate in the defense of a Claim Landowner shalt riot be responsible to defend, indemnify,
and hold harmless City during the period that City so fails to cooperate or for any losses
attributable thereto. City shall be entitled to retain separate counsel to represent City against the
Claim and the City's defense costs for its separate counsel shall be included in Landowner's
indemnity obligation, provided that such counsel shall reasonably cooperate with Landowner in
an effort to minimize the total litigation expenses incurred by Landowner. In the event either
City or Landowner recovers any attorney's fees, expert witness fees, costs, interest, or other
amounts from the party or parties asserting the Claim, Landowner shall be entitled to retain the
same (provided it has fully performed its indemnity obligations hereunder). The indemnity
provisions in this Section 10.2 shall commence on the Agreement Date, regardless of whether the
Effective Date occurs, and shall survive the Termination Date.
103 Enviromnental indemnit .
In addition to its indemnity obligations set forth in Section 1.0.1, fi-om and atter the
Agreement Data Landowner shall indemnify, defend, and hold harmless City and City's
Affiliated Parties from and against any and all Claims for personal injury or death, property
damage, economic loss, statutory penalties or fines, and damages of any kind or nature
whatsoever, including without limitation reasonable attorney's fees, expert witness fees, and
costs, based upon or arising from any of the following: (i) the actual or alleged presence of any
Hazardous Substance on or under any of the Property in violation of any applicable
Environmental Law, (it) the actual or alleged migration of any Hazardous Substance from the
Property through the soils or groundwater to a location or locations off of the Property, and (iii)
the storage, handling, transport, or disposal of any Hazardous Substance on, to, or from the
Property and any other area disturbed, graded, or developed by Landowner in connection with
Landowner's Development of the Project. The foregoing indemnity obligations shall not apply
to any Hazardous Substance placed or stored on a separate legal lot within the Property after the
Lot Terrnination Date for said lot, as provided in Section 2.4 of this Agreement. The indemnity
provisions in this Section 10.3 shall commence on the Agreement Date, regardless of whether the
Effective Date occurs, and shall survive the Tennination Date.
ll. Assi&nment.
Landowner shall have the right to sell, transfer, or assign (hereinafter, collectively, a
"Transfer") Landowner's fee title to the Property, in whole or in part, to a Permitted
Transfcrcc(which successor, as of the effective date of the Transfer, shall become the
"Landowner" under this Agreement) at any time from the Agreement Date until the Termination
Date, provided, however, that no such Transfer shall violate the provisions of the Subdivision
Map Act (Government Code Section 66110 et seq.) or City's local subdivision ordinance and any
such transfer shall include the assignment and assumption of Landowner's rights, duties, and
obligations set forth in or arising under this Agreement as to the Property or the portion thereof
E tt 2011 , } 20 1525
so Transferred and shall be made in strict compliance with the following conditions precedent;
(i) no transfer or assigibuent of any of Landowner's rights or interest tinder this Agreement shall
be made unless made together with the Transfer of all or a part of the Property; and (ii) prior to
the effective date of any proposed Transfer, Landowner (as transferor) shall notify City, in
writing, of such proposed Transfer and deliver to City a written assignment and assumption,
executed in recordable form by the transferring and successor Landowner and in a form subject
to the reasonable approval of the City Attorney of City (or designee), pursuant to which the
transferring Landowner assigns to the successor Landowner and the successor Landowner
assumes from the transferring Landowner all of the rights and obligations of the transferring
Landowner with respect to the Property or portion thereof to be so Transferred, including in the
case of a partial Transfer the obligation to perform such obligations that must be performed
outside of the Property so Transferred that are a condition precedent to the successor
Landowner's right to develop the portion of the Property so Transferred. Any Permitted
Transferee shall have all of the same rights, benefits, duties, obligations, and liabilities of
Landowner under this Agreement with respect to the portion of the Property sold, transferred,
and assigned to such Permitted Transferee; provided, however, that in the event of a Transfer of
less than all of the Property no such Permitted Transferee shall have the right to enter into an
amendment of this Agreement that jeopardizes or impairs the rights or increases the obligations
of the Landowner with respect to the balance of the Property.
Notwithstanding any Transfer, the transferring Landowner shall continue to be jointly
and severally liable to City, together with the successor Landowner, to perform all of the
transferred obligations set forth in or arising under this Agreement unless there is full satisfaction
of all of the following conditions, in which event the transferring Landowner shall be
automatically released from any and all obligations with respect to the portion of the Property so
Transferred: (i) the transferring Landowner no longer has a legal or equitable interest in the
portion of the Property so Transferred other than as a beneficiary under a deed of trust; (ii) the
transferring Landowner is not then in Default under this Agreement and no condition exists that
with the passage of time or the giving of notice, or both, would constitute a Default hereunder;
(iii) the transferring Landowner has provided City with the notice and the fully executed written
and recordable assignment and assumption agreement required as set forth in the first paragraph
of this Section 11; and (iv) the successor Landowner either (A) provides City with substitute
security equivalent to any security previously provided by the transferring Landowner to City to
secure performance of the successor Landowner's obligations hereunder with respect to the
Property or the portion of the Property so Transferred or (B) if the transferred obligation in
question is not a secured obligation, the successor Landowner either provides security reasonably
satisfactory to City or otherwise"demonstrates to City's reasonable satisfaction that the successor
Landowner has the financial resources or commitments available to perform the transferred
obligation at the time and in the manner required under this Agreement and the Development
Regulations for the Project.
12. Mortearee Rights.
12.1 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
? 1420110 21 524
with any Mortgage securing financing with respect to the construction, development, use, or
operation of the Prcjcct
12.2 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 valve. 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.
12.3 Mortgagee Not Obligated.
Notwithstanding the provisions of this Section 12.3, 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: (i) the
Mortgagee shall have no right to develop the Project under the Development Regulations without
fully complying with the terms of this Agreement-. and (ii) to the extent that any covenant to be
performed by Landowner is a condition to the performance of a covenant by City, that
perfonnanee shall continue to be a condition precedent to City's performance.
12.4 Notice of Default to Mortgagee; Riplmt of Mortgagee to Cure.
Each Mortgagee shall, upon written request to City, be entitled to receive written notice
from City of: (i) the results of the periodic review of compliance specified in Article 7 of this
Agreement, and (ii) 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 thirty (30) days after receiving a Notice of Default with respect to a monetary Default and
within sixty (60) days after receiving a Notice of Default with respect to a non -monetary Default.
If the Mortgagee can only remedy or cure a non -monetary Default by obtaining possession of the
Property, thein the 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 non -monetary Default
within sixty (60) days after obtaining possession and, 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 to terminate or substantially alter the rights of the Mortgagee until expiration of the
sixty (60) -day period. In the case of a non -monetary Default that cannot with diligence be
remedied or cured within sixty (60) days, the Mortgagee shall have additional time as is
reasonably necessary to remedy or cure the Default, provided the Mortgagee promptly
commences to cure the non -monetary Default within sixty (60) days and diligently prosecutes
the cure to completion.
1H20130 22 525
13. L4(scellancous `ierins.
13.1 Notices,
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, California 92663-3884
Attn: City .Manager
With a copy tot City Attorney
City of Newport Beach
3300 Newport Boulevard
Post Office Box 1768
Newport Beach, California 92663-3884
TO LANDOWNER: Uptown Newport, LP
c/o The Shopoff Group, L.P
2 Park Plaza, Suite 700
Irvine, CA 92614
Attn: William A. Shopoff
With a copy to: Jackson DeMarco Tidus Peckenpaugh
2030 Main Street, I2th Floor
Irvine, CA 92614
Attn: Gregory P. Powers, Esq.
Either Party may change the address stated in this Section 13.1 by delivering notice to the
other Party in the manner provided in this Section 13.1, and thereafter notices to such Party shall
be addressed and submitted to the new address. Notices delivered in accordance with this
Agreement shall be deemed to be delivered upon the earlier of: (i) the date received or (iii) three
business days after deposit in the mail as provided above.
13.2 Proiect as Private Undertakine.
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 set forth in this Agreement. This Agreement forms no
r141,0110 23 520
partnership, joint venture, or other association of any kind. The only relationship between the
Patties is that of a government entity regulating the Development of private property by the
owner of the property.
13.3 Cooperation.
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.
13A Estoppel Certificates.
At any time, either Party may deliver written notice to the other Party requesting that that
Party certify in writing that, to the best of its knowledge: (i) this Agreement is in full force and
effect and is binding on the Party; (ii) this Agreement has not been amended or modified either
orally or in writing or, if this Agrreement has been amended, the Party providing the certification
shall identify the amendments or modifications; and (iii) the requesting Party is not in Default in
the performance of its obligations under this Agreement and no event or situation has occurred
that with the passage of time or the giving of Notice or both would constitute a Default or, if
such is not the case, then the other Party shall describe the nature and amount of the actual or
prospective Default.
The Party requested to furnish an estoppel certificate shall execute and return the
certificate within thirty (30) days following receipt.
13.5 Rules of Construction,
The singular includes the plural; the masculine and neuter include the feminine; "shall" is
mandatory; and "may" is pennissive,
13.6 Time Is of the Essence.
Time is of the essence regarding each provision of this Agreement as to which time is an
element,
13.7 Waiver.
The 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 ,vaiver of that Party's right to demand strict compliance by the
other Party in the future.
118 Countertiarts.
14 2013,3 24 527
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.
I3.9 Entire Aercement.
This Agreement constitutes the entire agreement between the Patties and supersedes all
prior agreements and understandings, both written and oral, between the Parties with respect to
the subject matter addressed in this Agreement except for the Affordable Housing
Implementation Plan (No. AH2012-001).
13.10 Severability.
The Parties intend that each and every obligation of the Parties is interdependent and
interrelated with the other, and if any provision of this Agreement or the application of the
provision to any Party or circumstances shall be held invalid or unenforceable to any extent, it is
the intention of the Parties that the remainder of this Agreement or the application of the
provision to persons or circumstances shall be rendered invalid or unenforceable. The Parties
intend that neither Party shall receive any of the benefits of the Agreement without the full
performance by such Party of all of its 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. The provisions
of this Section 13.10 shall apply regardless of whether the Effective Date occurs and after the
Termination Date.
13.11 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 or City and Landowner had the opportunity to be so represented and voluntarily
chose to not be so represented. 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.
13.12 Successors and Assigns; Constructive Notice and Acceptance.
The burdens of this Agreement shall be binding upon, and the benefits of this Agreement
shall inure to, all successors in interest to the Parties to this Agreement. All provisions of this
Agreement shall be enforceable as equitable servitudes and constitute covenants running with the
land. Each covenant to do or refrain from doing some act hereunder with regard to Development
of the Property: (i) is for the benefit of and is a burden upon every portion of the Property; (ii)
nuns with the Property and each portion thereof; and (iii) is binding upon each Party and each
successor in interest during its ownership of the Property or any portion thereof. Every person or
714 NO 25 522
entity 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 13.12 applies regardless of whether the instrument by
which such person or entity acquires the interest refers to or acknowledges this Agreement and
regardless of whether such person or entity has expressly entered into an assignment and
assumption agreement as provided for in Section 11,
13.13 No Third Party Beneficiaries.
The only Parties to this Agreement are City and Landowner. This Agreement does not
involve any third party beneficiaries, and it is not intended and shall not be construed to benefit
or be enforceable by any other person or entity.
13.14 Applicable Law and Venue.
This Agreement shall be construed and enforced consistent with the internal laws of the
State of California, without regard to conflicts of law principles. 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.
13.15 Section Headin¢s.
All section headings and subheadings are inserted for convenience only and shall not
affect construction or interpretation of this Agreement.
13.16 Incorporation of Recitals and Exhibits.
All of the Recitals are incorporated into this Agreement by this reference. Exhibits A and
B are attached to this Agreement and incorporated by this reference as follows:
EXHIBIT
DESIGNATION
DESCRIPTION
A
Legal Description of Property
B
Depiction of the Property
13,17 Recordation.
The City Clerk of City shall record this Agreement and any amendment; modification, or
cancellation of this Agreement in the Office of the County Recorder of the County of Orange
within the period required by California Government Code section 65868.5 and City of Newport
idmI}ei 26 .�� h
Beach Municipal Cade section 15,45.090. The date of recordation of this Agreement shall not
modify or amend the Effective Date or the Termination Date,
[SIGNATURE PAGE FOLLOWS]
2,11s")I10 27
SIGNATURE PAGE TO
DEVELOPMENT AGREEMENT
"LANDOWNER"
UPTOWN NEWPORT LP, a Delaware
limited partnership
By: G&I VI NEWPORT CORP., a
Delaware corporation, its General Partner
By:
Name:
Its:
"CITY,-
CITY
CITY"
CITY OF NEWPORT BEACH
Keith D. Curry., Mayor
ATTEST:
City Clerk
e/ P, O D AS TO FORM:
Aaron Harp, City Attorney
214211110 28 5S1
STATE OF CALIFORNIA
COUNTY OF ORANGE
On , before me, the undersigned, a Notary Public in and for said State,.
personally appeared and who proved to me
on the basis of satisfactory evidence to be the persons whose names are subscribed to the within
instrument and acknowledged to me that they executed the same in their authorized capacities
and that by their signature on the instrument the persons, or the entity upon behalf of which the
persons acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
Witness my hand and official seal.
Notary Public in and for
said County and State
STATE OF CALIFORNIA
COUNTY OF ORANGE
On , before me, the undersigned, a Notary Public in and for said State,
personally appeared and , who proved to me
on the basis of satisfactory evidence to be the persons whose names are subscribed to the within
instrument and acknowledged to me that they executed the same in their authorized capacities
and that by their signature on the instrument the persons, or the entity upon behalf of which the
persons acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
Witness my hand and official seal.
Notary Public in and for
said County and State
21120130 -29- 532
EXHIBIT A
LEGAL DESCRIPTION
Being a subdivision of Lots 1 and 2 of Tract No. 7953, in the City of Newport Beach,
County of Orange, State of California, as shown on a map recorded in Book 310, Pages 7
to 11 inclusive, of Miscellaneous Maps, recorded of said County.
5233
EXHIBIT B
DEPICTION OF PROPERTY
Exhibit B
Master Site Plan
Uptown Newport
UptownNewportLF
535
530
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 the whole number of members of the City Council is seven; that the foregoing ordinance, being
Ordinance No. 2013-6 was duly and regularly introduced on the 26th day of February, 2013, and adopted
by the City Council of said City at a regular meeting of said Council, duly and regularly held on the 12th day
of March, 2013, and that the same was so passed and adopted by the following vote, to wit:
Ayes: Gardner, Hill, Selich, Henn, Daigle, Mayor Curry
Nays: None
Recused: Petros
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official
seal of said City this 13th day of March, 2013.
STATE OF CALIFORNIA }
COUNTY OF ORANGE }
CITY OF NEWPORT BEACH }
4,- L, N""
City Clerk
City of Newport Beach, California
(Seal)
CERTIFICATE OF PUBLICATION
ss.
I, LEILANI I. BROWN, City Clerk of the City of Newport Beach, California, do hereby certify that
Ordinance No. 2013-6 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 dates:
Introduced Ordinance: March 2, 2013
Adopted Ordinance: March 16, 2013MA
�j,� ,(
In witness whereof, I have hereunto subscribed my name this !/Jday of 1 / 2013.
0
dail
City"Cler'k d L r
City of Newport Beach, California
(Seal)