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HomeMy WebLinkAbout9737 - Tentative Tract 10019 Settlement & StipulationRESOLUTION NO. 9737 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH APPROVING THE SETTLEMENT AGREEMENT AND STIPULATION FOR JUDGMENT RESOLVING THE LITIGATION BETWEEN THE IRVINE COMPANY AND THE CITY OVER THE DISAPPROVAL OF TENTATIVE TRACT NO. 10019 WHEREAS, the City Council disapproved the Tentative Map for Tract No. 10019 (hereinafter referred to as "Tentative Map No. 10019 ") ; and WHEREAS, The Irvine Company commenced litigation in the Orange County Superior Court, Case No. 32- 18 -70, in regard to the denial of Tentative Map No. 10019; and WHEREAS, on December 11, 1979, the City completed its consideration and amendment to the-General Plan of the City of Newport Beach which modified the allowable land uses of the North Ford site, the location of Tentative Map No. 10019; and WHEREAS, the City, City staff, The Irvine Company and representatives of The Irvine Company have met and negotiated a Settlement Agreement and Stipulation for Judgment in regard to the amended land uses for the North Ford site, which Settle- ment Agreement and Stipulation for Judgment is found by the City Council to be fair and equitable and in the best interest of both parties, NOW, THEREFORE, BE .IT RESOLVED by the City Council of the-City of Newport Beach that the Settlement Agreement and Stipulation for Judgment, a copy of which is attached hereto, ' be and is hereby approved, and the Mayor and City Attorney are. authorized to execute same on behalf of the City and cause the Settlement Agreement and Stipulation for Judgment to be filed with the Orange County Superior Court. # & ADOPTED this 25th day of February, 1980. ATTEST: City Clerk j CERTWIED THE ORIGINAL CITY CLERK OF THE CITY OF NEWP BEAC14 ®ATII, ___FE j ? 7 1980 is Z "C'x% Mayor -2- HRC /kv 2/26/80 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 • 28 f.ATHAU A WATKWB AY RNRTR AT LAW NEWMRT BEACH LATHAM & WATKINS George A. Rice Robert K. Break 660 Newport Center Drive Suite 1400 Newport Beach, California 92660 (714) 752 9100 Attorneys for Petitioner FIVER FEB 26 n 0 LEE A 8- , wCi I inty Clerk By puty SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE THE IRVINE COMPANY, a Michigan corporation, Petitioner, VS. THE CITY OF NEWPORT BEACH, a municipal corporation, Respondent. CASE NO. 32-18 -70 SETTLEMENT AGREEMENT AND STIPULATION FOR JUDGMENT Y THIS SETTLEMENT AGREEMENT AND STIPULATION FOR JUDGMENT ( "Stipulation ") is entered February 25, 1980, between THE CITY OF NEWPORT BEACH, a Municipal corporation ( "City "), and THE IRVINE COMPANY, a Michigan corporation ( "Irvine Company "). It is expressly understood and agreed between the par- ties, and should be understood by all others who read this Stipu- lation, that this constitutes the negotiated settlement of a lawsuit which arises from the disapproval of the Tentative Map for Tract No. 10019 (hereinafter "Tentative Map No. 10019 ") by the City Council on September 10, 1979. The negotiations were carried out by the City Staff and the City Council in a good faith effort • r 2I 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 •. 28 I.ATBAN WATKINS ATTORNEYS AT LAW NEWMRT BEACH to protect the interests of the City and its .citizens while at the same time avoiding any unnecessary injury to the private interests involved with the project that was the subject of that lawsuit. By settling this matter and entering into this Stipulation, the parties indicate their resolution to deal fairly and in good faith with respect to all aspects of the development which will occur as a result of the settlement; and to take all actions reasonably necessary to effect the spirit and intent of this Stipulation. That spirit and intent can be summed up as a desire to see the full development contemplated by this Stipulation completed and occupied in the ordinary course of business with as much expedition and speed, and as little financial loss to the City and Irvine Company as is possible. It is expressly agreed that no special or extraordinary advantage has been or will be accorded to the Irvine Company as a result of the commencement or termination of this litigation. This Stipulation shall not be interpreted to indicate that the City might settle any other lawsuit or claim in this manner. Further, the understandings which appear in this Stipula- tion apply only to this matter and not to any other landowner or developer, and no City policy or precedent, applicable to others, is established by the provisions of this Stipulation. INTRODUCTION 1. Disputes and differences have arisen between the City and Irvine Company. 2. The disputes and differences of the City and Irvine Company concern the development of the property commonly known as "North Ford," and arise out of the City Is disapproval of Tentative Map No. 10019 on September 10, 1979. At the time of that 2 I I disapproval, North Ford was zoned as a Planned Community with an • 2 allowable density of 675,000 square feet of light industrial space 3 and 28,500 square feet of commercial retail space. 4 3. On December 11, 1979, the City completed its recon- 5 sideration of the allowable uses of the North Ford site, and deter- 6 mined to reduce the intensity of land use development allowable in 7 the City's General Plan for that site (295,000 square feet of light 8 industrial space, 28,500 square feet of neighborhood commercial 9 retail space, and 120 residential dwelling units). 10 4. The parties have discussed their disputes and 11 differences in great detail and, as a result of those discussions, 12 believe that a full and complete settlement of those disputes and 13 differences will be to the benefit of all parties concerned and in 14 their mutual best interests. City asserts that each and every one 15 of its acts with regard to the disapproval of Tentative Map No. 16 10019 has been and is legally correct, required and supportable. 17 City has not yet filed a cross complaint in this matter. Irvine 18 Company asserts that the disapproval of Tentative Map No. 10019 is 19 not legally supportable. Neither party by this Stipulation makes 20 any admission as to the validity or invalidity of any claim made 21 or potentially available against the other party. 22 5. By this Stipulation the parties intend to lay to 23 rest any potential as well as existing litigation, claims of 24 damages and all other assertions as to rights and privileges which 25 could have been judicially determined in this action relative to 26' North Ford and to define and agree upon their respective rights 27 and duties with respect to that project. The parties hereto agree 28 to a waiver of the provisions of Civil Code section 1542. .ATNAN S WATKINS ATTCAN6T9 AT LAw N L1T!ONT esACN 3 7 6. Each party agrees that it, its officers.and • 2 employees will use their best efforts and take all steps reasonably 3 possible to assure full compliance -with the spirit, intent and 4 purpose of this Stipulation so that the balance of the project may 5 be built and sold as defined in this Stipulation without further 6 7 delay or interference to any party. 7. Each has of the parties earlier acknowledged and 8 agreed that the settlement of their differences is mutually bene- 9. ficial. Said benefits may be summarized as follows: 10 (a) Elimination of the lawsuit asserted against 11 the City; 12 (b) Elimination of further lawsuits between the 13 parties concerning the North Ford site; 14 (c) Savings of extensive repetition of matters 15 already carefully and fully considered by the City Staff, the. 16 Commissions and the City Council, which savings will be partic- 17 ularly beneficial in that the City may now devote time to 18 numerous other important matters of City business; 19 (d) Realization of numerous goals deemed worthwhile 20 by the City, including significant reduction in density of 21 development in the project, significant reduction in the 22 amount of increased traffic in the City, and addition of new 23 housing and industrial opportunities for the City; 24 (e) Reduction of loss of earnings, loss of property 25 and property value, and the right to conduct business in a 26 lawful manner; 27 (f) Assurance that the City will use its best 28 efforts to assist in completing the project; LATBAM & WATYME ATTOANETE AT LAW BEACH 4 NXW?OWT ]; (g) Assurance that Irvine Company will complete 2 the project according to the City's desires, particularly 3. with respect to the residential portions; and 4 (h) The benefits which accrue from mutual helpful, 5 cooperative efforts so that construction and sale of the pro - 6 ject can be accomplished with a minimum of further lost time 7 and investment. 8 All of the foregoing provisions are a part of this Agreement and 9 the parties further agree as follows: 10 STIPULATION 11 8. The City Council shall reassume jurisdiction over 12 Irvine's application for approval of Tentative Map No. 10019 and, 13 upon proper notice, reconsider that application. Full, complete 14 and sufficient review by the City Staff, the City Planning Commis - 15 sion and the City Council of Tentative Map No. 10019 and the envi- 16 ronmental impact report prepared for that project has previously 17 occurred. Upon resumption of jurisdiction over Tentative Map 18 No. 10019, the City Council shall approve Tentative Map No. 10019, 19 subject to the conditions and matters set forth in paragraph 9, in 20 that it has determined: 21 (a) That the proposed map is consistent with 22 the applicable general plan and the industrial phase of 23 development it permits is consistent with the applicable 24 zoning. 25 (b) That the design or improvement of the 26 proposed subdivision is consistent with the applicable 27 general plan. 28 LATAIM & WATKINS ATTORN xE AT LAw p S NEW :•OXT BEACX . I (c) That the site is physically suitable for 2 the type of development. 3 (d) That the site is physically suitable for 4 the proposed density and intensity of development. 5 (e) That the design of the subdivision or the 6 proposed improvements is not likely to cause substantial 7 'in- environmental damage or substantially and avoidably .8 jure fish or wildlife or their habitat. 9 (f) That the design of the subdivision or the 10 type of improvements is not likely to cause serious pub - 11 lic health problems. 12 (g) That the design of the subdivision or the 13 type of improvements will not conflict with easements, 14 acquired by the public at large, for access through or 15 use of, property within the proposed subdivision. 16 (h) That an Environmental Impact Report 17 ( "EIR ") on the original project was certified as complete 18 by the City Council on September 10, 1979. 19 (i) That the contents of the certified Final 20 EIR have been considered in the decisions on this project, 21 (j) That based on information contained in 22 the certified EIR the original project has been revised 23 by the selection of a feasible alternative concept des - 24 cribed therein, which would substantially lessen any 25 significant effects the original project would have had 26 on the environment. 27 (k) That based on the information contained 28 in the certified Final EIR, while the project may have a I.ATBAH S WATKINS AT uN6Y8 AT BCACN LAW L 6 NL W MRT L_J 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 . . 28 UT-" B WATMNA ITT RKN B AT LAw N EWMRT O"C" significant environmental impact, the revised project incorporates mitigation measures and land use concepts to substantially reduce potentially significant environ- mental effects. Further, that the economic and social benefits to.the community override any presently antici- pated negative environmental effects of the project. (1) That a traffic phasing plan for the development of the 295,000 square feet of industrial development and 120 dwelling units approved by this Stipulation shall not be required. 9. The City's approval of Tentative Map No. 10019 shall be conditioned upon only those 6 Notes and 66 conditions attached by the City Planning Commission on August 16, 1979, except as modi- fied as follows: (a) Condition 6 is amended to insert the words "and bicycle" between the words "pedestrian" and "circu- lation." (b) The first sentence of Condition 51 is amended to read: "That noise generated from rooftop mechanical equipment shall not exceed 45 dBA when measured at the boundary of the project or any residen- tial property line." (c) Condition 66 is amended to read: "That Lots 9 and 10 shall not be developed until the Planned Community Development Plan is amended to be consistent with the current General Plan to provide for development of 120 residential dwelling units on those lots. ". 7 1 (d) A new condition 67 is added to read: "No • 2 occupancy permits shall be given for occupancy of any 3 buildings developed on Lots 1 through 8, inclusive, until 4 CC&R's in a form satisfactory to the Newport Beach City 5 Attorney have been recorded on the property restricting 6 7 Lots 9 and 10 to residential uses, which CC&R's shall be enforceable by the City.." 8 (e) A new condition 68 is added to read: 9 "Lot 1 is not to be developed until a traffic phasing 10 plan for said lot under the standards for excepted 11 planned communities is approved or the Traffic Phasing 12 Ordinance is repealed." 13 (f) A new Condition 69 is added to read: 14 "That tentative tract boundary along Bison Avenue shall 15 coincide with that on parcel map filed with Resubdivision 16 629." 17 (g) A new Condition 70 is added to read: 18 "That an 8 foot wide sidewalk be constructed on the 19 easterly side of Camelback Street between Bison Avenue 20 and Street 'B'." 21 (h) A new Condition 71 is added to read: 22 "That an 8 foot wide sidewalk be constructed on both 23 sides of Street W between Camelback Street and Street 24 A, „ 25 (i) A new Condition 72 is added to read: 26 "That $40,000 be contributed to the construction of a 27 sound attenuation wall for the community of Eastbluff 0 28 along Jamboree Road." ,ATNIN & WATKINS AT INETE AT 7.AW p 8 NKWA RTB EACH r 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LATHE R WATNINR ATTCRNEYE AT LAW NEWPORT BEACH (j) Note 6 is amended to read: "Lots 9 and 10 may not be developed until further resubdivision is approved." Irvine Company acknowledges that the street improvements called for in Conditions 14 and 18 include 10 foot wide sidewalks. 10. City shall immediately process by appropriate notice hearings and proceedings an amendment to the Planned Community Development Standards for the North Ford site to conform the zoning for that site with the City's adopted General Plan to permit devel- opment of not more than 120 residential dwelling units on Lots 9 and 10. Irvine Company shall immediately begin preparing neces- sary plans and a proposed tentative map to further subdivide Lots 9 and 10 into not more than 120 residential dwelling units. As soon after amendment of the zoning for the North Ford site required by this paragraph as is reasonably possible, Irvine Company shall apply for approval of a residential tentative map for Lots 9 and 10. City agrees that, with regard to such zoning amendment and further subdivision: (i) The certified Environmental Impact Report previously accepted with regard to Tentative Map No. 10019 is applicable and acceptable, and that no fur- ther adverse impacts not otherwise mitigated will occur with regard to this proposed residential development. The City may require an addendum to address on -site conditions associated with residential development. (ii) Only such conditions as are usually cur- rently applicable to such residential subdivisions shall be imposed as a prerequisite to approval. City will 9 0 r 2� 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I.ATNAX & WATKINS AWIENEY9 AT LAW PIENMRT 9EALH impose no conditions for off -site improvements except as set forth below. (iii) City shall take no action to further reduce the number of residential dwelling units that may be constructed on Lots 9 and 10, and at Irvine Company's option Irvine Company may build up to 120 residential dwelling units on those lots. Irvine Company agrees to the following off -site conditions and matters with regard to the further subdivision of Lots 9 and 10: (a) Irvine Company shall notify each purchaser of the individual residential properties that an exten- sion of the Corona del Mar Freeway may constructed in the future which might affect the property. (b) City may require construction of an 8 foot wide sidewalk on the westerly side of Camelback Street between Bison Avenue and Jamboree Road, provided City has sufficient right =of -way therefor. 11. Upon approval of Tentative Map No. 10019, Irvine 11 Company may request and be granted by City grading permits to grade the entire North Ford site including Lots 9 and 10 subject to the reasonable conditions of approval of that tentative map and current Newport Beach grading ordinances. City agrees that the approval of this Stipulation and of Tentative Map No. 10019 as herein condi- tioned, considered by the City Council, and finally approved shall totally define the density and intensity and type of development of the North Ford site referred to in this Stipulation. Irvine Company shall commence construction of the residences no later 10 • ti 1 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 W 28 I.ATA" A WAr�s Ar 7_Nsrs Ar LAw N& %W! R B"CM than eighteen (18) months after issuance of the certificates of occupancy for 252,858 square feet of the industrial buildings. 12. City agrees that it has considered the project contemplated in this Stipulation and is satisfied that the density,1 intensity, types of uses contemplated, and phasing of construction are acceptable to it and shall be binding upon it as a vested . interest of Irvine Company. 13. Irvine Company agrees that it has fully studied and considered the project contemplated in this Stipulation, that it is satisfied in all respects with the density, types of uses, and phasing of construction contemplated for the North Ford site in this Stipulation and that this Stipulation shall be binding upon its successors in interest in all respects. 14. Irvine Company and City agree that each shall do all that is necessary to carry out the terms and conditions of this Stipulation. Both parties agree that any conditions for the final approval of the tentative map further subdividing Lots 9 and 10 for residential development shall include only those normally associated with such developments in the City of Newport Beach at this date, and shall include no others. 15. This Stipulation is intended to be binding on Irvine Company and the City. Both parties acknowledge that careful consid- eration has been given to this matter and that in exchange for a decrease in the density and intensity of the development, the agreement to phase and complete construction and the termination of litigation, City is willing to offer to Irvine Company and Irvine Company accepts the terms and conditions of construction of 11 ti 1 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LATHIM & WATKINS ATfOA..e S AT LAW NCW.^ RT BEACH the industrial phase, delay of the commercial service phase, and construction of the residential phase. 16. Except for minor variations agreed to between the parties, the terms and conditions of this Stipulation may be modi- fied only upon a specific finding made and accepted by Irvine Company, City and the Superior Court of the State of California, County of Orange on each of the following: a. The specific term or condition is impossible to fulfill because of a legal impediment; b. The alternative available to the specific term or condition is legally permissible; c. The basic intent and substance of this Stipulation shall not be adversely affected. 17. This Stipulation is hereby authorized by resolution of the City Council of the City of Newport Beach. Irvine Company represents and warrants that it has fully authorized the execution of this Stipulation. The Superior Court of the County of Orange, State of California, is requested to enter this Stipulation as a Judgment in the matter of The Irvine Company vs. The City of Newport Beach, Orange County Superior Court Case No. 32- 18 -70. Findings of Fact and Conclusions of Law are hereby waived. Each party to bear its own costs and attorney fees. 12 M 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IATHAM $ WAT8,H6 A'wwt: EY9 AT LAW NEW.MRT BEACH Executed this 2c� day of yQ7-i2u�iey , 1980 at Newport Beach, California. Approved as to form and content: as to form and tent: IS SO ORDERED. February ji, 1980 TH RVINE COMPANY B `- - President LATHAM & WATKINS By �0 w `f K . 7B rA-o-L- Attorneys for The Irvine Co. CITY OF NEWPORT BEACH yor By ugh ity Attorney PIZER & MICHAELSON, INC. By Barry S. Michaelson, Special Counsel, City of Newport Beach ORETTA FERRI SEARS JUDGE OF THE SUPERIOR COURT 13