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HomeMy WebLinkAboutC-3059 - Ford Loral Development, Development Agreement No. 8F 5 ""'T RECGROING REVdEST PER LA 'i'OV RNIM`NT CODE 6103 u� O _Recording Requested By and M When Recorded Return to: U City Clerk fSCity of Newport Beach L c6300 Newport Boulevard ewport Beach, CA 92660 W w p® W S w Z e -3o S9 ORIGINAL Recoraea in the county of orange, caiifornia Gary L. Granville, Clerk/Recorder 111111111111111111 No Fee 19970222104 1; 06pm 05/13/97 005 24006209 24 63 Al2 57 7.00 168.00 0.00 0.00 0.00 0.00 M FIRST AMENDED DEVELOPMENT AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH LN 1 PACIFIC BAY HOMES Original Agreement Approved July 24, 1995 Ordinance No. 95-27 Amendment Approved July 8, 1996 Ordinance No. 96-26 062596-1058/F31331-002/15774.22 Submitted By: Paone Callahan McHolm & Winton 19100 Von Karman Avenue 8th Floor P.O. Box 19613 Irvine, CA 92713-9613 FIRST AMENDED DEVELOPMENT AGREEMENT THIS FIRST AMENDED DEVELOPMENT AGREEMENT (the "Agreement") is entered into between the City of Newport Beach (the "City"), and Pacific Bay Homes, a California corporation and a subsidiary of the Ford Motor Company. RECITALS. This Agreement relates to the following: 1.1 Original Agreement. On July 10, 1995, the City Council of the City approved the "Development Agreement between the City of Newport Beach and Ford Motor Land Development Corporation" (the "Original Agreement"). The Original Agreement was recorded in the official records of the County of Orange on September 26, 1995. 1.2 Ownership Status. At the time of the Original Agreement, Ford Motor Land Development Corporation ("Ford Land") held an equitable interest in the property which is described in Exhibit A (the "Property"). Ford Land is a subsidiary of Ford Motor Company. In April 1996, The JM Development Company ("JM"), also a subsidiary of Ford, acquired fee title to the Property. Since the acquisition, JM has changed its name to Pacific Bay Homes. Pacific Bay Homes shall be referred to within this Agreement as "Ford." 1.3 Planning Status. The City Council conducted public hearings on these matters and the Original Agreement and certified the EIR on July 10, 1995. The General Plan Amendment (see Section 2.22 below), the Original PC Text Amendments (see Section 2.29 below), the Tentative Map (see Section 2.34 below), and the Original Agreement were approved on July 10. 1995. Since the approval of the Original Agreement, site planning has continued for the Property. As a result of that planning, Ford has proposed certain changes to the Planned Community District Regulations (the "PC Text") which also will result in changes to the Tentative Map. In addition to the stated purposes of the Original Agreement, this Agreement intends to make those modifications to the Original Agreement which will allow the development of the Property (the "Project") to proceed consistent with approved modifications to the PC Text and the Tentative Map. 1.4 General Findings. By approving this Agreement, the City Council finds that the modifications to the PC Text and this Agreement, when implemented through subsequent entitlement procedures, such as the subdivision mapping process, are 062596-1058 / F31331-002 / 15774.22 1 consistent with the intent of the City Council in approving the Original Agreement. 1.5 CEQA Compliance. On July 10, 1995, the City Council certified Environmental Impact Report No. 153 for the Project (the "EIR"). On July 22, 1996, the City Council found that neither PC text modifications nor changes to the Original Agreement will cause any significant environmental impacts not previously considered and will not require any new mitigation measures. The proposed modifications represent minor technical changes to the Project. 1.6 Effect of Original Agreement. This Agreement is intended to modify the Original Agreement. The provisions of this Agreement which modify the Original Agreement are the only provisions intended to be modified. The use of a single document called an "amended agreement," rather than the use of a list of modifications or amendments to be used in comparison to the Original Agreement, is intended to simplify future reference to this Agreement. The Effective Date of this Agreement remains the original Effective Date of the Original Agreement, August 23, 1995. The Approval Date remains July 10, 1995. 1.7 Effective Date of Modifications. The provisions of this Agreement which represent actual changes from the Original Agreement shall become effective on the effective date of the ordinance approving this Agreement. 1.8 Purpose of Agreement. This Agreement restates the intent of the Original Agreement as follows: a. Provide for the orderly transition of the land use on a property commonly known as the "Loral Site" from commercial/industrial uses to less intense residential uses. b. Establish the parameters of building height, density, location, and timing to minimize, to the extent reasonably feasible, any significant adverse impacts of Ford's proposed residential development on the environment. C. Provide the City with greater certainty that the project will be implemented as presently planned so that the City will receive the substantial economic benefits projected by the project's fiscal impact study. d. Provide public benefits to the City in excess of normal mitigation requirements in the form of (1) substantial financial assistance from Ford 062596-1058 / F31331-002 / 15774.22 2 in resolving a long-standing traffic circulation issue in the Eastbluff community, (2) financing by Ford of extraordinary environmental monitoring of site remediation, and (3) the provision of assurances by Ford with respect to the funding and/or provision of affordable housing units within the City. 1.9 Authorization. This Agreement is authorized by, and is consistent with, the provisions of 65864 et seq. of the Government Code of the State of California, and Chapter 15.45 of the Newport Beach Municipal Code. 1.10 Interest of Ford. Ford is the legal owner of approximately 98.1 acres of real property located in the City and more particularly described in Exhibit "A" (the "Property"). 1.11 Development of the Property. Subject to those conditions and mitigation measures identified in Environmental Impact Report No. 153 for Ford Land Newport (the "EIR") which were imposed by the City Council as conditions to approval of all or part of the Development Plan, this Agreement authorizes development on the Property consistent with the Development Plan. 1.12 Condition of Site. At the time of the Original Agreement, the Property was occupied by buildings constructed over the last thirty years to house research, design, and industrial types of uses. Since the Approval Date and as part of the Development Plan, Ford has demolished the existing structures. Additionally, prior activities on the site have resulted in soil and groundwater contamination. Efforts to remediate these conditions, which would have been made by Ford with or without this Agreement, have moved substantially and positively forward since the Approval Date. 1.13 Proiect Benefits. While the landowner has the right to continue the presently permitted uses on the Property, existing circumstances present the City with the opportunity to establish, with the landowner's cooperation, new economically and environmentally viable uses on the Property. The proposed project presents a relatively unique opportunity to reduce the intensity of land uses occurring on the site. The EIR has demonstrated that the conversion of the existing research and development uses on the Property to residential uses will provide substantial benefits to the community through the improvement of environmental conditions related to traffic, air pollution, the potential for groundwater pollution, the consumption of non-renewable energy resources, and noise. Additionally, a review of the fiscal impacts of the proposed project indicates that the City will 062596-1058 / F31331-002 / 15774.22 3 derive increased revenues from property and sales tax as a result of the proposed project. 1.14 Planning Commission/City Council Hearings: This Agreement. The Planning Commission, after giving appropriate notice, held public hearings to consider this Agreement and the newly proposed PC Text amendments (see Section 2.29 below) on June 20, 1996. The City Council conducted public hearings on the proposed PC Text amendments and this Agreement on July 22, 1996. 1.15 Consistency. Like the Original Agreement, this Agreement is consistent with the various elements of the Newport Beach General Plan, the Development Plan, and other applicable ordinances, plans, and policies of the City. Also like the Original Agreement, this Agreement is also consistent with the purpose and intent of state and local laws authorizing development agreements in that it represents Ford's commitment to comprehensive planning, provides certainty in the approval of subsequent projects subject to compliance with conditions, reduces the economic costs of development by providing assurance to Ford that it may proceed with projects in accordance with existing regulations, and provides assurance to adjoining property owners that limits on the height of structures and amount of development as specified in the Development Plan. 1.16 Police Power. As it did with the Original Agreement, the City Council has determined that this Agreement is in the best interests of the health, safety and general welfare of the City, its residents and the public, was entered into pursuant to, and represents a valid exercise of, the City's police power, and has been approved in accordance with the provisions of state and local law that establish procedures for the approval of development agreements. 1.17 City Ordinance. On July 10, 1995, the City Council approved the Original Agreement and conducted the first reading of Ordinance No. 95-27 approving and authorizing the City to enter into the Original Agreement. On July 24, 1995, the City Council completed adoption of the Adopting Ordinance. The Adopting Ordinance became effective on August 23, 1995. On July 8, 1996, the City Council approved this Agreement and conducted the first reading of Ordinance No. 96-26 approving and authorizing the City to enter into this Agreement. On July 22, 1996, the City Council completed adoption of this ordinance. 062596-1058/F31331-002/15774.22 4 2. DEFINITIONS. 2.1 The "Adopting Ordinance" refers to City Ordinance No. 95-27 adopted by the City Council on July 24, 1995, authorizing the City to enter into this Agreement. 2.2 "Agreement" refers to this "First Amended Development Agreement Between the City of Newport Beach and Pacific Bay Homes." The Agreement is also identified by the City as the City's Development Agreement No. 8. 2.3 "Annual Review" refers to the review of Ford's good faith compliance with this Agreement as set forth in Section 6. 2.4 The "Approval Date" means July 10, 1995, the date on which the City Council voted to approve the Original Agreement and the prior Development Plan. 2.5 All forms of use of the verb "assi n" and the nouns "assignment" and "assignee" shall include all contexts of hypothecations, sales, conveyances, transfers, leases, and assignments. 2.6 "CEQA" and the "CEQA Guidelines" refers to the California Environmental Quality Act and the CEQA Guideline promulgated by the Secretary of Resources of the State of California. 2.7 "City" refers to the City of Newport Beach, California. 2.8 "Council" refers to the City Council of the City. 2.9 "Cure Period" refers to the period of time during which a Default may be cured pursuant to Section 9. 2.10 A "day" or "days" refers to a calendar day, unless expressly stated to be a business day. 2.11 A "Default" refers to any material default, breach, or violation of the provisions of this Agreement. A "City Default" refers to a Default by the City, while a "Ford Default" refers to a default by Ford. 2.12 "Development Permit" means building permits, grading permits and other permits authorizing construction activity. 062596-1058 / F31331-002 / 15774.22 5 2.13 The "Development Plan" refers to (i) the General Plan (see Section 2.24), (ii) the PC Text (see Section 2.29), and (iii) the Tentative Map (see Section 2.33 below). 2.14 The "Effective Date" refers to the effective date of the Adopting Ordinance and is the effective date of this Agreement. The Effective Date is August 23, 1995. 2.15 The "EIR" refers to Environmental Impact Report No. 153 of the City of Newport Beach. 2.16 An "Estoppel Certificate" refers to the document certifying the status of this Agreement required by Section 6.6 in the form of Exhibit "D". 2.17 An "Exhibit" refers to an exhibit to this Agreement. All Exhibits are incorporated as a substantive part of this Agreement. The Exhibits to this Agreement are: Exhibit A: Legal Description of the Property Exhibit B: Map of the Property Exhibit C: List of Project Conditions Exhibit D: Estoppel Certificate 2.18 "Existing General Regulations" means those General Regulations approved by the City on or before the Approval Date (irrespective of their effective date) and not rescinded or superseded by City action taken on or before the Approval Date. 2.19 Financing District. "Financing District" for purposes of this Agreement means any assessment district, special district, community facilities district, maintenance district, or other similar district, legal entity, or mechanism formed pursuant to the provisions of legislation in effect at the time the Financing District is formed. The purpose of a Financing District is to finance the cost of public improvements, facilities, maintenance, or services. Examples include districts formed under the Municipal Improvement Acts of 1911 and 1913 and the Mello -Roos Community Facilities District Act of 1982. 2.20 "Ford" refers to Pacific Bay Homes, a subsidiary of Ford Motor Company. 2.21 "Future General Regulations" means those General Regulations (see Section 2.23 below) adopted by the City after the Approval Date. 2.22 The "General Plan Amendment" means GPA -93-2(A) amending the general plan of the City as approved by the City Council on July 10, 1995. 062596-1058 / F31331-002 / 15774.22 6 2.23 "General Regulations" means those ordinances, rules, regulations, policies, and guidelines of the City, which are generally applicable to the use of land and/or construction within the City and include, the Fair Share Traffic Contribution Fee Ordinance, Uniform Building Codes and water and sewer connection and fee ordinances. 2.24 "General Plan" refers to the City's General Plan in effect on the Approval Date, plus all amendments to the General Plan adopted by the City on or before the Approval Date as part of the Development Plan. "General Plan" also shall include any general plan amendments affecting the Property or the Project which are adopted by the City and consented to, in writing, by Ford. 2.25 "Includes" and all contexts and forms of the words "includes" and "including" shall be interpreted to also state "but not limited to." 2.26 "Mortgagee" refers to the holder of a beneficial interest under any mortgage, deed of trust, sale-leaseback agreement, or other transaction under which all or a portion of the Property, including those portions acquired by assignees, is used as security (a "Mortgage") or the owner of any interest in all or any portion of the Property under a Mortgage, including those portions acquired by assignees. 2.27 "Notice" refers to any written notice or demand between the Parties required or permitted by this Agreement. 2.28 The "Ori ing al Agreement" refers to the Development Agreement for the Project which was approved on July 10, 1995, and recorded on September 26, 1995. This Agreement modifies the Original Agreement. 2.29 The "Original PC Text Amendment" refers only to the "Aeronutronic Ford Planned Community District Regulation" as amended by the City Council on July 10, 1995. 2.30 The "Parties" refers to the City and Ford and a "Party" shall refer to either of the Parties. 2.31 The "PC Text" refers to the "Aeronutronic Ford Planned Community District Regulation" as amended by the City Council on July 10, 1995, with the approval of Amendment No. 800, and all subsequent modifications of the PC Text which are approved by the City Council and Ford. 2.32 "Planning Commission" refers to the Planning Commission of the City. 062596-1058 / F31331-002 / 15774.22 7 2.33 The "Project" refers to the proposed development of the Property pursuant to the Development Plan and this Agreement. 2.34 The "Property" refers to the real property described on Exhibit "A" and depicted on Exhibit "B." 2.35 The "Tentative Map" refers to the tentative tract map for Tract No. 14925 approved by the City Council on July 10, 1995, and any subdivision map approved by the City Council after the Approval Date which substantially conforms with the PC Text at the time of the map's approval. If a subsequent subdivision map (or maps) replaces or supersedes TTM No. 14925, the new map(s) shall be considered the Tentative Map which is included within the Development Plan. 3. CONDITIONS TO DEVELOPMENT. 3.1 Introduction. The provisions of this Section express the intent of the Parties regarding the extent to which this Agreement vests Ford's right to proceed with the development described in the Development Plan. Ford acknowledges that its right to proceed with development described in the Development Plan is subject to numerous conditions including the following: (a) The specific limitations and restrictions contained in the Development Plan; (b) Conditions and mitigation measures imposed by the City Council to mitigate significant effects identified in the EIR; (c) Conditions imposed by the City as a result of subsequent or supplement environmental analysis pursuant to provisions of CEQA and the CEQA Guidelines; (d) Compliance with the terms and conditions specified in this Agreement; and (e) Compliance with the Existing General Regulations. 3.2 Compliance with Development Plan Conditions/Mitigation Measures. Ford acknowledges that City Council approval of the Development Plan and this Agreement was subject to compliance with numerous conditions and mitigation measures designed to minimize or eliminate the significant adverse effects of the 062596-1058 / F31331-002 / 15774.22 8 Project and insure the health, safety, and welfare of nearby residents as well as residents of the proposed project. Pursuant to CEQA, many of these conditions and mitigation measures impose specific development standards and requirements to be implemented in conjunction with further study and analysis of site or subsurface conditions before certain specified development activity. In certain instances, these mitigation measures may exceed those which might otherwise be appropriate under "nexus" and "rough proportionality" tests. By entering into this Agreement, Ford agrees to be bound by and waives any protest any such project conditions. The conditions and mitigation measures adopted by the City Council are set forth in Exhibit C. 3.3 Compliance with General Regulations. Ford is required to comply with the Existing General Regulations. As to those Existing General Regulations which require the payment of fees, costs, and expenses, for a development application, the applicable fee, cost, or expense shall be that in effect on the date such an application is determined by the City to be complete. Ford shall also comply with any Future General Regulation that does not impair or affect its ability to develop the Property in accordance with the Development Plan. Ford shall also comply with all provisions of the Uniform Building Code, whether adopted before or after the Approval Date, which are in effect at the time applications for specific development permits are submitted. 3.4 Water Capital Improvement Charges. Section 14.33.040 of the City's Municipal Code provides for the payment of a "water capital improvement charge" for lands designated pursuant to Section 14.33.030 of the Municipal Code. Section 14.33.040 of the Municipal Code relates only to system facilities that will be needed to serve an "undeveloped area." Because the Project consists of replacement of an existing use on a previously developed site which can be adequately served from existing City water facilities, Ford shall not be required to pay water capital improvement fees to the City. 3.5 Public Health and Safety/Uniform Codes. This Agreement shall not prevent the City from either (i) adopting Future General Regulations (including uniform codes which are based on recommendations of a multi -state professional organization and become applicable throughout City, such as, but not limited to, the Uniform Building Code, Uniform Electrical Code, Uniform Mechanical Code or Uniform Fire Code) or (ii) imposing conditions inconsistent with the Development Plan on future discretionary approvals, where such actions directly result from findings by the City that those actions are necessary to avoid consequences which are injurious or detrimental to the public health and safety. This reservation of authority is subject to the following: 062596-1058 / F31331-002 / 15774.22 9 a. City shall neither (i) refuse to issue or approve any application or permit nor (ii) apply to the Project or the Property any conditions or Future General Regulations if such action would prevent, preclude, delay, alter, or in any way affect (in a manner not satisfactory to Owner) the implementation of all or any portion of the Development Plan until the City Council makes a finding that such action is the only reasonably necessary means to correct or avoid such injurious or detrimental condition. b. Any such action taken pursuant to this Section shall apply only to the extent and for the duration necessary to correct or avoid such injurious or detrimental condition. 3.6 Environmental Remediation. Certain portion(s) of the Property will require environmental remediation before occupancy. Subject to all other provisions of this Agreement, occupancy permits shall be issued by the City for those portions of the Property if Ford has complied with Mitigation Measures 4, 5, and 6 set forth in Section 3.10 (Public Health and Safety) of the EIR. 4. BENEFITS TO FORD. 4.1 Right to Develop. During the term of this Agreement and subject to the provisions of Sections 3 and 5, Ford shall have a vested right to develop and receive occupancy permits for construction on the Property to the full extent permitted by the Development Plan, including grading of the site as contemplated by the elevations shown on the Tentative Map, subject to: (a) compliance with CEQA, (b) the terms and conditions of this Agreement, (c) the City's grading ordinance in effect on the Approval Date, and (d) compliance with conditions imposed on any subdivision map submitted by Ford subsequent to the Effective Date, provided that the City may only impose subdivision map conditions which are (i) necessary to mitigate any significant adverse impact not identified in the EIR, (ii) necessary to ensure compliance with the subdivision design and improvement standards of the City in effect on the Approval Date, or (iii) necessary to make the findings required by the Subdivision Map Act. Subject to the provisions of this subsection and Sections 3 and 5, City shall only take action which complies with and is consistent with the Development Plan and this Agreement unless Ford otherwise consents in writing. City shall not impose any condition or requirement (whether in the form of a fee, tax, requirement for dedication or reservation of land, or any other type of exaction) on the Project, 062596-1058 / F31331-002 / 15774.22 10 except as expressly permitted by this Agreement or required (as opposed to permitted) by state or federal law. 4.2 Conflicting Measures. Except as expressly provided in this Agreement, no initiative measure, moratorium, referendum (except as provided in Government Code Section 65857.5), ordinance, statute or other provision of law which in any way limits or restricts development of the Property to the full extent permitted by the Development Plan and this Agreement (including density, intensity, timing, phasing, and sequencing) shall be applied to the Property during the term of this Agreement. 4.3 Reservations or Dedications of Land. Except as expressly provided in this Agreement, no dedications or reservations of the Property shall be required of Ford in conjunction with the application or issuance of any permit authorizing development, construction, use, or operation of the Property. 4.4 TCA Credit. As a result of the reduction in traffic impacts generated by converting the Project site to less intense uses than presently exist, the Transportation Corridor Agencies (the "TCA") have acknowledged a credit to Ford in the amount of $3,436,966 in relation to the construction of the San Joaquin Hills Transportation Corridor. This credit shall be applied toward any Project fees otherwise payable to the City, the Transportation Corridor Agencies, or any other agency in connection with the construction of the San Joaquin Hills Transportation Corridor or any other transportation corridor for which fees are imposed upon development. If (i) this credit is larger than the Project's corridor fee obligation and (ii) Ford and the TCA enter into an agreement to allow Ford to sell or transfer any credits in excess of the Projects fee obligation, then the City shall not object to the sale or transfer of the credits on the terms set forth in that Ford/TCA agreement. 4.5 Fair Share Ordinance. As a result of the reduction in traffic impacts generated by the Project and the traffic improvements included within the Project, no fees shall be payable for the Project under the City's "Fair Share" Traffic Ordinance. 4.6 Sewer Connection. The City shall provide sewer service to the Project through a connection to existing City sewer lines serving the adjacent Belcourt communities and the existing Loral site. City shall provide sewer facilities only to the boundaries of the Project and Ford shall pay any sewer connection or sewer service fees required by the Existing General Regulations. 062596-1058 / F31331-002 / 15774.22 11 4.7 Storm Drains. The City shall provide drainage capacity to the Project by allowing connection to existing City storm drains. 4.8 Park Fees. The Project shall comply with all City park requirements through the payment of park fees in the amount of $6,897.37 per residential unit. Ford shall advance Five Hundred Thousand Dollars ($500,000) in park fees to the City within sixty days after the Effective Date. The fees paid in advance shall be credited toward and satisfy park fees for the first seventy-three residential building permits issued for the Project. Thereafter, Ford shall pay $6897.37 per residential unit until all park fees required by this Agreement have been paid. These payments shall satisfy the City's Park Dedication Ordinance. No dedications or reservations of land except as expressly identified in the Development Plan shall be required of the Project. 4.9 Time for Construction and Completion of Project. Subject to the provisions of this Agreement and the Development Plan, Ford shall have the right to decide the timing, phasing, and sequencing of construction on the Property and shall be entitled to apply for, and receive timely approval of permits or approvals, at any time. 4.10 Extension of Tentative Man. To the extent permitted by law, the City shall extend through the term of this Agreement (pursuant to Government Code Section 66452.6) the Tentative Map (see Section 2.33 above) and all tentative subdivision maps applied for by Ford approved by the City in the future. 4.11 Phased Final Mans. As many as forty phased final maps may be filed for each tentative tract map approved for the Project. 4.12 Development Standards. Because this Development Plan has been prepared to meet the unique design parameters of this Project, the City Council has determined that rigid consistency with the City's development standards for other areas of the City is neither necessary nor appropriate. Therefore, as to this Project, the provisions of the Development Plan and this Agreement shall prevail over any conflicting provision of any other City ordinance or resolution. 4.13 Fees, Taxes, and Assessments. The City shall not impose any additional fee, tax, or assessment on all or any portion of the Project or the Property, whether as a condition to a Future General Regulation or otherwise, except such fees, taxes, and assessments as are described in or required by this Agreement. Ford shall be responsible only for those fees, taxes, and assessments which presently are applicable to the Property under the General Regulations in effect on the Approval 062596-1058 / F31331-002 / 15774.22 12 Date. Except as set forth in Section 4.8 above, the rates of such fees, taxes, and assessments shall be the rates in existence at the time said fees, taxes, and assessments are normally required to be paid to the City. 5. PUBLIC BENEFITS. 5.1 Reduced Impacts. This Agreement confers a substantial public benefit by converting an existing commercial/industrial use to a less intense residential use. The EIR for the Project has established specific improvement in environmental conditions related to reduced potential for impacts arising from traffic, air pollution, the consumption of non-renewable energy resources, the potential for groundwater pollution, and noise. 5.2 Fiscal Benefits. The project's Fiscal Impact Report projects that, at maximum Project buildout, the City will receive net recurring revenues of approximately $571,700 per year in constant 1995 dollars. The recurring surplus is based on projected annual Project revenues of $963,600 and projected annual costs of $391,000. 5.3 Affordable Housing. The City's Housing Element presently sets forth goals and strategies for providing housing units for very low, low, and moderate income housing ("Affordable Units"). The Housing Element requires residential developers to provide affordable units, either on-site or off-site, with the number of units contingent upon numerous factors including the presence or absence of development incentives, the extent of any financial contribution to the development by public entities, and the overall feasibility of providing affordable housing given the unique characteristics of the project. The Housing Element specifically encourages the use of development agreement and expedited permitting to encourage the construction and occupancy of affordable housing projects. The City and Ford agree that this development presents a unique opportunity, possibly in combination with a Development Agreement between the City and one or more other developers, to construct affordable housing on vacant sites within the City using a unique public/private planning and financing process outlined in this Section: a. Affordable Housing Percentage The Housing Element requires projects such as this to provide, to the extent feasible, units affordable to moderate income families and individuals equal in number to between 15% and 25% of the market rates units produced by the project. These units are to be provided for a minimum of twenty years. The City and Ford agree that the cost and delay attendant to environmental remediation of the Property, 062596-1058 / F31331-002 / 15774.22 13 Ford's agreement to advance park fees, and the other public benefits provided by Ford under this Agreement make infeasible the production of affordable housing in excess of 15% of the total number of residential units constructed pursuant to the Development Plan. b. Task Team Participation / In Lieu Fees. The Original Agreement contained a requirement for Ford to satisfy its affordable housing requirements by participating in a "Task Team" to be established by resolution of the City Council to identify, evaluate, and implement one or more affordable housing projects to implement Ford's affordable housing obligations under this Section. Since the Approval Date, Ford has actively participated in the Task Team, which is implementing its original goals as set forth in the Original Agreement. The requirement contained in the Original Agreement remains in place and reads as follows: "b. Task Team Participation / In Lieu Fees. Ford shall satisfy its affordable housing requirements by participating in a "Task Team" to be established by resolution of the City Council to identify, evaluate, and implement one or more affordable housing projects to implement Ford's affordable housing obligations under this Section. The Task Team shall consist, at a minimum, the City staff. The City Council also may appoint to the Task Team representatives of other property owners, builders, or persons experienced in the development of affordable housing. Ford shall make available to the Task Team its experience and expertise in land development upon reasonable request by the Task Team. The Task Team shall submit to the City Council a statement of goals and priorities within ninety days after the later of (i) the Effective Date or (ii) the appointment of the Task Team by the City Council. The Task Team shall have a single term of two years, unless extended by mutual agreement of the City and Ford. The Task Team shall report to the City Council no less than once every ninety days after submittal of its statement of goals and priorities. The goal of the Task Team shall be to submit to the City Council, within two years after the Effective Date, a report identifying one or more affordable housing projects to be funded in whole or in part by Ford. If a project is identified and implemented, Ford shall contribute $2,500,000 (less $5,000 for each of the 500 units allowed by the Development Plan which Ford agrees, in writing, not to build) toward the implementation of that 062596-1058 / F31331-002 / 15774.22 14 project. Subject to Ford's ongoing participation in Task Team implementation efforts, payment of this sum will satisfy Ford's affordable housing obligations. "c. Option If No Task Team Project. If either (i) the City Council does not require Ford to financially contribute to implementation of a Task Team project as described in Subparagraph b above or (ii) the Task Team does not recommend implementation of an affordable housing project to satisfy Ford's affordable housing requirement, then Ford shall have the option, within sixty days after the term of the Task Team expires, to satisfy that requirement by notifying the City that it will either: construct or rehabilitate offsite residential units within the City and make those units affordable to moderate income families or individuals for 20 years or more from the date of occupancy; or ii. pay an affordable housing in lieu fee of $5,500 for each residential building permit issued within the Project; or iii. construct fewer than the number of affordable units required under Subsection c(i) above and pay an affordable housing in lieu fee equal to: • $5,500 for every residential building permit issued for the Project minus • $36,000 multiplied by the number of affordable units constructed and/or refurbished by Ford. Under this option, Ford's affordable housing in lieu fee shall not be less than twenty percent of its total financial commitment." 5.4 Environmental Monitoring. Due to existing soil and groundwater contamination on the Project site, before residential occupancy can occur on the site, Ford is required by law, as well as by the City's conditions and mitigation measures for the Project, to obtain approvals from other public agencies, such as the Regional Water Quality Control Board and the Orange 062596-1058 / F31331-002 / 15774.22 15 County Health Care Agency ("County Health"). By this Agreement, Ford also will pay for the cost of an environmental monitor to be retained by the City to review all Ford submittals to those agencies. Ford shall provide the monitor with copies of all submittals concurrently with their delivery to those agencies. Additionally, if requested by the monitor, Ford shall provide to the City the underlying data which supports Ford's request to County Health for a Health Risk Assessment of the Project site. The City may have either the monitor or another consultant review and independently verify the accuracy and validity of the Health Risk Assessment and analysis and conclusions and correspond, if needed, to County Health before its final action. The monitor shall not perform any independent collection of data. The monitor performing this function may be the same or may be different than the monitor performing the general overview described in the first paragraph above. In performing either function, the monitor may report his or her findings to the City Council and the City Council, in turn, may take any action it deems appropriate which is not inconsistent with this Agreement. The selection of the monitor and the data consultant and their scope of work shall be subject to the mutual approval of the City and Ford. Any inconsistency between this provision and any mitigation measure for the Project shall be resolved in favor of the mitigation measure. 5.5 Eastbluff Traffic. The Eastbluff community in the vicinity of the Project site has had a historical concern regarding the impact of through traffic on its streets. The EIR has concluded that the Project will not contribute sufficient through traffic to constitute a significant impact on this existing problem. Further, Ford has no legal obligation to correct the existing problem and the City has no authority independent of this Agreement to impose a condition requiring Ford to correct the existing problem. Pursuant to this Agreement, however, Ford shall contribute to the solution to the existing traffic problem as follows: a. The determination of a solution shall be dependent upon an agreement between the Eastbluff community and the City. b. If the "solution" costs $50,000 or less: Ford will pay one -hundred percent of the total cost of the capital improvements/traffic studies (as opposed to long-term maintenance) of the solution as actually implemented; or 062596-1058 / F31331-002 / 15774.22 16 If the "solution" costs more than $50,000: Ford will pay one-third of the total cost of the capital improvements/traffic studies as actually implemented, with a minimum payment of $50,000 and a maximum payment of $75,000. C. Ford will not be required to make a deposit of funds until a "solution" actually is approved by the City for implementation. Any funds actually deposited but not used to implement the solution shall be returned to Ford. d. If the City and the Eastbluff community have not agreed on a "solution" within one year from the Effective Date and the date for agreement has not been extended by Ford, this obligation shall terminate. e. If a lawsuit is brought by any person or entity challenging any of the Ford approvals on the basis of the Eastbluff traffic conditions and that lawsuit is not terminated within thirty days after service, the provision requiring Ford's contribution to the traffic solution will terminate. 5.6 Drainage. Concerns have been expressed in the public process regarding the impacts of the Project's drainage on nearby residential communities. The EIR has established that the Project will not have any significant drainage impacts on any other residential communities. Nonetheless, pursuant to this Agreement Ford will take the following actions: a. Upon formation of the Master Community Association, the conditions, covenants, and restrictions will provide that: i. All structures shall have gutters and downspouts; ii. The Master Association shall routinely maintain the onsite storm drain system to facilitate proper operation of the system; and iii. The submittal of landscape plans for each individual lot shall provide that water from downspouts will be transported to the street through an appropriate collection system. b. The Project site will be graded so that surface drainage will flow to the streets where it will be collected and channeled into a closed storm drain system. 062596-1058 / F31331-002 / 15774.22 17 5.7 Belcourt Terrace Landscape Screen This Agreement as originally recorded on September 26, 1995, contained a Section 5.7 which imposed certain obligations upon Ford with respect to the establishment of a landscape screen along the boundary of the Property and the Belcourt Terrace project adjacent to the Hillsdale Drive boundary wall. Since the recording of the Agreement, that condition has been satisfied by the signing of a Landscape Screening Agreement between Ford and the Belcourt Terrace Homeowners Association (the "Association")." 6. ANNUAL REVIEW. 6.1 City and Ford Responsibilities. At least every twelve (12) months during the Term, the City shall review Ford's good faith substantial compliance with this Agreement (the "Annual Review"). After the Annual Review, the City's finding of good faith compliance by Ford shall be conclusive for the purposes of future Annual Reviews or legal action between the Parties. Either Party may address any requirements of the Agreement during the Annual Review. However, fifteen (15) days' written Notice of any requirement to be addressed shall be made by the requesting Party. If, at the time of the review, an issue not previously identified in writing is required to be addressed, the review shall be continued for no more than sixty days at the request of either Party to afford sufficient time for analysis and preparation of a response. 6.2 Opportunity to be Heard. Ford shall be permitted an opportunity to be heard orally and in writing at any noticed public hearing or meeting related to the Annual Review. 6.3 Information to be Provided to Ford. The City shall mail to Ford a copy of the staff report and related exhibits concerning Agreement performance a minimum of fifteen (15) days before the Annual Review. 6.4 Mitigation Monitoring. The Annual Review shall include an analysis of compliance with the various conditions and mitigation measures contained within the mitigation monitoring plan. Ford shall be found in compliance with this Agreement unless the City Council determines, based upon the evidence presented at the Annual Review, that Ford has not complied with one or more mitigation measures or conditions including those imposed as a result of subsequent environmental analysis, applicable to the grading of, and building on, the Property as of the date of the Annual Review. 062596-1058 / F31331-002 / 15774.22 18 6.5 Review Letter. a. After Finding of Compliance. If Ford is found to be in compliance with the Agreement after the Annual Review, the City shall issue, within ten (10) days of Ford's written request, a letter to Ford stating that the Agreement remains in effect and Ford is not in Default. b. After Cure of Default. If Ford is found to be in Default under this Agreement at the Annual Review, but subsequently cures that default in the manner provided by this Agreement, the City shall issue, within ten (10) days of Ford's written request, a letter to Ford stating that the Agreement remains in effect and Ford is not in Default. 6.6 Estoppel Certificate. Either Party may at any time deliver written Notice to the other Party requesting an estoppel certificate (the "Estoppel Certificate") stating: (a) The Agreement is in full force and effect and is a binding obligation of the Parties. (b) The Agreement has not been amended or modified either orally or in writing or, if so amended, identifying the amendments. (c) To the best of the signing Party's knowledge, no Default in the performance of the requesting Party's obligations under the Agreement exists or, if a Default does exist, the nature and amount of any Default. A Party receiving a request for an Estoppel Certificate shall provide a signed certificate to the requesting Party within thirty (30) days after receipt of the request. The Planning Director may sign Estoppel Certificates on behalf of the City. An Estoppel Certificate may be relied on by assignees and Mortgagees. The Estoppel Certificate shall be substantially in the same form as Exhibit "D." 6.7 Failure to Conduct Annual Review. The City's failure to conduct an Annual Review shall not constitute or be asserted by the City as Ford's Default. 062596-1058 / F31331-002 / 15774.22 19 7. GENERAL PROVISIONS. 7.1 Effective Date. This Agreement and the obligations of the Parties shall be effective as of the Effective Date. However, this Agreement shall bind the Parties as of the Approval Date, subject only to the Adopting Ordinance becoming effective pursuant to California law. 7.2 Term of Agreement. The term of this Agreement (the "Term") shall begin on the Effective Date and continue for twenty-five (25) years unless otherwise terminated or modified pursuant to this Agreement. 7.3 Assignment. Ford has the absolute right to assign (see Section 2.5) its rights and/or delegate its obligations under this Agreement as part of an assignment of all or a portion of the Property. Any assignment shall be subject to the provisions of this Agreement. As long as Ford owns any part of the Property, Ford may assign the benefits of this Agreement without delegating the obligations for the portion of the Property assigned. If that occurs, however, the benefits assigned shall remain subject to the performance by Ford of the corresponding obligations. Where an assignment includes the delegation of the corresponding obligations, those obligations become solely the obligations of the assignee. If an assignee is in Default, then as to Ford or any assignees not in Default, the Default shall not constitute their Default, give grounds for termination of their rights under this Agreement or be a basis for an enforcement action against them. Under no circumstances, shall Ford be relieved of its obligations under Sections 5.3, 5.4, 5.5, and 5.6. 7.4 Amendment of Agreement. (a) Subject to the provisions of Subsection (b), this Agreement may be amended from time to time by the mutual consent of the Parties, or their successors in interest, but only in the manner provided by the Government Code and this Agreement. After any amendment, the term "Agreement" shall refer to the amended Agreement. (b) The City Council shall not approve, and Ford shall not request, any amendment to the provisions of the Development Plan or this Agreement that would increase the maximum permitted gross floor area or the maximum permitted building height above that established as of the Effective Date of this Agreement. This Subsection shall prevail over any 062596-1058 / F31331-002 / 15774.22 20 conflicting ordinance, resolution, policy or plan adopted by the City Council. 7.5 Enforcement. This Agreement is enforceable by each of the Parties and their respective successors and assigns. 7.6 Termination. This Agreement shall be deemed terminated and of no further effect upon the occurrence of any of the following events: (a) Expiration of the twenty-five (25) year term; (b) Completion of the Project in accordance with the Development Plan and the City's issuance of all occupancy permits necessary to fully implement the Project, the acceptance of all dedications required by this Agreement, and the satisfaction by Ford of its obligations under Sections 5.3, 5.4, 5.5, and 5.6 above. (c) Entry, after all appeals have been exhausted, of a final judgment or issuance of a final order directing the City to set aside, withdraw, or abrogate the City's approval of this Agreement or any material part of the Project; or, (d) The effective date of a Party's election to terminate the Agreement as provided in Section 9.3 of this Agreement. 8. CONFLICTS OF LAW. 8.1 Conflict with State and Federal Laws and Regulations. Where state or federal laws or regulations prevent compliance with one or more provisions of this Agreement, those provisions shall be modified, through revision or suspension, to the extent necessary to comply with such state or federal laws or regulations and the modified Agreement shall remain in effect, subject to the following: (a) the City shall not request modification of this Agreement pursuant to this provision unless and until the City Council makes a finding that such modification is required (as opposed to permitted) by state and federal laws or regulations; (b) the modifications must be limited to those required (as opposed to permitted) by the state or federal laws; 062596-1058 / F31331-002 / 15774.22 21 (c) the modified Agreement must be consistent with the state or federal laws or regulations required modification or suspension; (d) the intended material benefits of this Agreement must still be received by each of the Parties after modification; (e) neither the modification nor any applicable local, state, or federal laws or regulations, may render the modified Agreement impractical to enforce; and (f) Ford consents in writing to the modification. Ford shall have the right to seek judicial review of any proposed modification to ensure compliance with this Section. 9. DEFAULT, REMEDIES AND TERMINATION. 9.1 General Provisions. In the event of a Default (see Section 2.11), the Party alleging a Default shall give the other Party a written Notice of Default. The Notice of Default shall specify the nature of the alleged Default, and a reasonable manner and sufficient period of time (not less than thirty (30) days) in which the Default must be cured (the "Cure Period"). During the Cure Period, the Party charged shall not be considered in Default for the purposes of termination of the Agreement or institution of legal proceedings. If the alleged Default is cured within the Cure Period, then a Default shall be deemed not to exist. 9.2 Option to Institute Legal Proceedings or to Terminate. If an alleged Default is not cured within the Cure Period, the noticing Party must give the defaulting Party a Notice of intent to terminate the Agreement if that Party intends to terminate the Agreement. Within thirty (30) days after giving of the Notice, the City Council shall hold a public hearing in the manner set forth in Government Code Sections 65865,65867, and 65868, as amended, to consider and review the matter. This hearing shall utilize the procedures outlined for the Annual Review in Section 6 above. 9.3 Notice of Termination. After the City Council hearing described in Section 9.2, the Party alleging the Default, at its option, may give written Notice of termination of the Agreement to the other Party and the Agreement shall be terminated immediately upon giving the Notice. A termination shall be valid only if good cause exists and clear and convincing evidence was presented to the City Council to establish the continued existence of a Default after the Cure Period. 062596-1058 / F31331-002 / 15774.22 22 The findings of the City Council as to the existence of a Default shall have no weight in any legal proceeding brought to determine the existence of a Default. The validity of any termination may be challenged pursuant to Section 11.17, in which case the court shall render an independent judgment as to the existence of a Default and good cause for termination. Termination may result only from a material Default of a material provision of this Agreement. 9.4 Waiver. Failure or delay in giving Notice of Default shall not waive a Party's right to give future Notice of the same or any other Default. 9.5 Default by Ford. Subject to and after termination of this Agreement in compliance with Sections 9.1 through 9.3, if Ford Defaults, the City shall have no obligation to perform any of City's obligations under this Agreement (as opposed to the City's obligations under the Development Plan and the General Regulations), unless otherwise ordered by a court of law. The City's election not to perform as permitted by this provision shall not constitute a Default. 9.6 Default by the City. Subject to and after termination of this Agreement in compliance with Sections 9.1 through 9.3, if the City Defaults, Ford shall have no obligation to perform any of Ford's obligations under this Agreement, unless otherwise ordered by a court of law. Ford's election not to perform as permitted by this provision shall not constitute a Default. 9.7 Specific Performance. The Parties agree that the loss by either of them of their respective rights under this Agreement may not be compensable through monetary damages. Therefore, the remedy for a Default for each Party shall be limited to specific performance and/or injunctive relief. This provision applies only to actions related to the Parties' performance under this Agreement and does not limit the remedies of either Party under any other provision of law. 10. ENCUMBRANCES AND RELEASES ON PROPERTY. 10.1 Discretion to Encumber. Ford may encumber all or any portion of the Property in any manner. The City acknowledges that lenders providing financing may require technical modifications to the Agreement which do not materially alter the intent of the Parties. The City agrees to meet, upon request, with Ford and/or lenders to negotiate in good faith any lender request for modification. The City agrees to not withhold unreasonably its consent to such modification, provided the proposed modification does not materially alter the terms and provisions of this Agreement, the obligations imposed upon either Party, or the benefits received by either Party. 062596-1058 / F31331-002 / 15774.22 23 10.2 Entitlement to Written Notice of Default. Any Mortgagee and its successors and assigns, upon written request to the City, shall be entitled to receive from the City written Notice of any Ford Default at the same time Ford is provided with Notice pursuant to Section 6.1. 11. MISCELLANEOUS PROVISIONS. 11.1 Notices. All Notices (see Section 2.27) shall be written and delivered by personal delivery (including Federal Express and other commercial express delivery services providing acknowledgments or receipt), registered, certified, or express mail, or telegram to the addresses set forth below. Receipt shall be deemed complete as follows: (a) For personal delivery, upon actual receipt; (b) For registered, certified, or express mail, upon the delivery date or attempted delivery date as shown on the return receipt; and Notices shall be addressed as follows: To the City: City Clerk City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92660 Attention: City Attorney Attention: Planning Director To Ford: Pacific Bay Homes Attn: Karin T. Krogius 18400 Von Karman, Suite 900 Irvine, California 92715 With a copy to: Tim Paone Paone, Callahan, McHolm & Winton 19100 Von Karman, 8th Floor P.O. Box 19613 Irvine, CA 92713-9613 062596-1058/F31331-002/15774.22 24 The addresses to which Notices shall be sent may be changed by giving Notice of a new address. 11.2 Enforced Delati;_ Extension of Time of Performance. Neither Party shall be deemed to be in Default where delays or non-performance are due to war, insurrection, strikes, walkouts, riots, floods, earthquakes, fires, oil spills, casualties, acts of nature, unavailability of materials, governmental restrictions imposed or mandated by governmental entities, suspension of rights in accordance with the existence of unforeseen circumstances, litigation, or similar bases for excused performance. An extension of time for performance shall be deemed granted for the period of the delay, or longer as may be mutually agreed upon. 11.3 Severability. If any material part of the Agreement is found by a court to be invalid, void, or illegal, the Parties shall modify the Agreement to implement the original intent of the Parties. These steps may include the waiver by either of the Parties of their right under the unenforceable provision. If, however, the Agreement objectively cannot be modified to implement the original intent of the Parties and the Party substantially benefitted by the material provision does not waive its rights under the unenforceable provision, the entire Agreement shall become void. For purposes of this Section, and without excluding the possible materiality of other provisions of this Agreement, all provisions of Section 4 and 5 are deemed "material." 11.4 Entire Agreement. This Agreement constitutes the entire understanding and Agreement of the Parties regarding the subject matter of this Agreement. This Agreement supersedes all negotiations and previous agreements between the Parties regarding that subject matter. 11.5 Waivers. All waivers of the provisions of this Agreement must be in writing and signed by the Party making the waiver. 11.6 Incorporation of Recitals. The Recitals set forth in Section 1 are part of this Agreement. 11.7 Covenant of Good Faith and Fair Dealing. Neither Party shall do anything which shall have the effect of harming or injuring the right of the other Party to receive the benefits of this Agreement. 11.8 Covenant of Cooperation. The City shall help Ford obtain any permits from either the City or other public agencies which may be required for development of the Project or as a result of any modifications, suspensions, or alternate courses of 062596-1058 / F31331-002 / 15774.22 25 action allowed by this Agreement. Ford may challenge any such ordinance, measure, moratorium, or other limitation in a court of law if it becomes necessary to protect the development rights vested in the Property pursuant to this Agreement. 11.9 Further Actions and Instruments. Upon the request of either Party, the other Party shall promptly execute, with acknowledgment or affidavit if reasonably required, and file or record such required instruments and writings and take any actions as may be reasonably necessary under the terms of this Agreement or to evidence or consummate the transactions contemplated by this Agreement. 11.10 Successors and Assi ns. Subject to Section 7.3 above, the burdens of this Agreement shall be binding upon, and the benefits of the Agreement inure to, all successors -in -interest and assigns of the Parties. 11.11 Construction of Agreement. All language in all parts of this Agreement shall be construed as a whole and given its fair meaning. The captions of the paragraphs and subparagraphs are for convenience only and shall not be considered or referred to in resolving questions of construction. This Agreement shall be governed by the laws of the State of California. This Agreement is not intended to impermissibly contract away the legislative and governmental functions of the City, and in particular, the City's police powers or to surrender or abrogate the City's governmental powers over the Property. 11.12 Authority to Execute. The person executing this Agreement on behalf of Ford warrants and represents that he/she has the authority to do so and the authority to bind Ford to the performance of Ford's obligations under this Agreement. 11.13 Consent. Any consent required by the Parties in carrying out the terms of this Agreement shall not unreasonably be withheld. 11.14 Effect on Title. This Agreement shall not continue as an encumbrance against any portion of the Property as to which this Agreement has terminated. 11.15 Recording. The City Clerk shall cause a copy of this Agreement to be executed by the City and recorded in the Official Records of Orange County no later than ten (10) days after the Effective Date. The recordation of this Agreement is deemed a ministerial act and the failure of the City to record the Agreement as required by this Section and Government Code Section 65868.5 does not make the Agreement void or ineffective. 062596-1058/F31331-002/15774.22 26 11.16 Institution of Legal Action. In addition to any other rights or remedies, either Party may institute legal action to cure, correct, or remedy any Default, to enforce any provision of this Agreement, to enjoin any threatened or attempted violation of this Agreement, to recover damages for any Default, or to obtain any remedies consistent with the purpose of this Agreement. Legal actions shall be instituted in the Superior Court of the County of Orange, State of California, or in the Federal District Court in the Central District of California. 11.17 Attorneys' Fees. In any arbitration, quasi-judicial, administrative, or judicial proceeding between the Parties initiated with respect to this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and all costs, expenses, and disbursements in connection with such action. 11.18 No Third Party Beneficiaries. There are no third party beneficiaries to this Agreement or to any provision of this Agreement, including the public benefit provisions of Section 5. Date: 5- , 1997 Date: �- / 2-- , 1996 062596-1058 / F31331-002 / 15774.22 CITY OF NEWPORT BEACH By:(-� ayor PACIFIC BAY HOMES By: 27 CALIFORNIA ALL-PURPObs;: ACKNOWLEDGMENT State of CP,\ :CO 1 � 1 County of On before me, � .� �0 ►G Datt \ ..__..� Name and Title of Officer (e.g., "Jade Doe, Notary Public") personally appeared A ��,i&-� S Name(s) of Signer(s) t -personally known to me - OR - ❑ proved to me on the basis of satisfactory evidence to be the person(.e-�' whose name(<s/a.r-,—subscribed to the within instrument and acknowledged to me that hefshe/tf;iey executed the same in 1*9/her/t4e4rauthorized capacity(iesT, and that by hi�5/herfter signature(.0 on the instrument the person(, • UNOAJ.SMIT}l or the entity upon behalf of which the erson a r;<. k,: COMM. #1059380 z Y p p ( acted, Z "°a » - Notary Public — Coliforn'a > executed the instrument. Z �' n ORANGE COUNTY My Comm. Expires MAY WITNESS my hand and official seal. =%vr r), ­� �__ �&� Sig atu of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of E Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: t i Individual Corporate Officer Title(s): Partner — ❑ Limited ❑ General Attorney -in -Fact Trustee Guardian or Conservator Other: Signer Is Representing: RIGHT THUMBPRINT OF SIGNER Top of thumb her Signer's Name: 1 Individual Corporate Officer Title(s): Partner — ❑ Limited ❑ General Attorney -in -Fact Trustee Guardian or Conservator Other: Signer Is Representing RIGHT THUMBPRINT OF SIGNER © 1995 National Notary Association - 8236 Remmet Ave., P.O. Box 7184 - Canoga Park, CA 91309-7184 Prod. No. 5907 Reorder: Call Toll -Free 1-800-876-6827 State of California County of Orange On — %—f7 before me, personally appeared J�/y 'D &"q ❑ personally known to me - OR - ;fir- {�•� Eli 46_ 4f � X1111 w'- • � CAPACITY CLAIMED BY SIGNER Individual Corporate Officer Limited Partner General Partner Attorney -in -Fact Trustee(s) Guardian/Conservator Other: Signer is Representing: Irene Butler, Notary Public, proved to me on the basis of satisfactory evidence to be the personks) whose name(s)�)are subscribed to the within instrument and acknowledged to me that he/ he/they executed the same in his/�/their authorized capacity4.i-os), and that by his die /their signature(s�on the instrument the personK, orthe entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. DESCRIPTION OF ATTA HED DOCUMENT 01 Title or y e of Document Number of Pages Date of Document 11MI /T X11?y 62/0S', L-� 6�7C. ), P. Signer(s) Other Than Named Above EXHIBIT "A11 Legal Description of the Property Parcel 4 of Parcel Map 79-717, as shown on Map Recorded in Book 140, Pages 1 through 6 of Parcel Maps, County of Orange, State of California. 071995 / F31331 -W2 / 36069.1 .h :.� � .. - •��•7ii Gam=- '3'� ' . F � r F rMAIL IWA �` , r � .,�� �. i� it '�+��� a r •,t' r;� � . 411, -bra• / t�••�,.-.� r 1 r.�*�el�: :, lid. , � i1,•> �'.if-�: 1 OkIt •�/•r+ f S 1.. s�_ Owl rs/r` _� � ( 1. � "��a� ��•t• o•\ w): Z`.1i. "`�' �R� •,f 3 ♦ •' �4A, � —14i 4 'fir' .�1�. • _: •�L f '� +'1 �' •• � � � , •� � f+ i • i• ray f�•'`�•. y. f ��•< 1- �,j! �• �r► �Y�� , Lei m EXHIBIT "_C Approved by the Planning Commission 6/8/95 Approved by the City Council 7/10/95 FINDINGS AND CONDITIONS FOR APPROVAL ENVIRONMENTAL I114PACT REPORT NO. 153 GENERAL PLAN AMENDMENT 93-2(A) AMENDMENT NO. 800 DEVELOPMENT AGREEMENT NO.8 TENTATIVE MAP OF TRACT NO. 14925 (Ford Land/Newport) A Environmental Impact Report No. 153 Findings: 1. That an Environmental Impact Report has been prepared for the project in compliance with the California Environmental Quality Act (CEQA), the State CEQA Guidelines and City Policy. 2. That the proposed Final EIR, which includes the Draft EIR, Comments and Responses, revisions to the Draft EIR, and all related documents in the record is complete and adequate to satisfy all the requirements of CEQA for the proposed project. 3. That the analysis and conclusions contained in the proposed Final EIR reflect the independent judgment of the Planning Commission. 4. That the Planning Commission has reviewed and considered the information contained in the proposed Final EIR prior to making its recommendations to the City Council. Mitigation Measures: Short -Term Impacts from Demolition and Construction -related Activities. (See Sub -section 3.3.3.1.1 in Impact Analysis) 1. Soil disturbance shall be halted when winds in excess of 25 mph make dust control impractical. 2. To minimize emissions by reducing interference of construction traffic with regional non - project traffic movement, the following measures shall be implemented where possible: Scheduling receipt of construction materials to non -peak travel periods. Exhibit A - Final Findings and Conditions GPA 93-2(AYA 8001171H 14925/DA 8 Page 1 Routing construction traffic through areas of least impact sensitivity. Providing ride -share incentives for contractors and subcontractor personnel. 3. To avoid spill-over impacts on neighboring roadways, construction vehicles shall be hosed down before entering public roadways from any dirt road project areas, or shall be limited to exiting the site from only paved roads. 4. The project access to public roadways shall be washed/swept at regular intervals to minimize dirt impacts on neighboring roadways. 5. Emissions from on-site construction equipment shall be controlled through a routine mandatory maintenance program. Demolition and Construction -related Noise (see Sub -section 3.4.3.1.1 in Impact Analysis) A note stating these requirements shall be placed on all demolition, grading and construction plans: 6. No stationary construction equipment shall be permitted to operate in a manner that results in either: a. An exterior noise level greater than 55 dBA Leq (daytime) or 50 dBA (nighttime) at the property line of any occupied residence; or b. An interior noise level greater than 45 dBA Leq in any occupied residence. 7. Prior to the issuance of any demolition, grading or building permits the project applicant shall demonstrate that all construction staging shall be performed on-site as far as feasible from occupied dwelling. Remediation Equipment Noise (see Sub -section 3.4.3.1.2 in Impact Analysis) 8. Prior to issuance of any building permit for remediation equipment, the applicant shall submit to the Building Department a report prepared by a licensed acoustical engineer certifying that operation of the equipment will not cause an increase in ambient noise of greater than 1 dBA nor exceed an exterior noise level of 55 dBA Leq (daytime) or 50 dBA Leq (night time), or an interior level of 45 dBA Leq, or as set forth in the Cites Noise Ordinance. 9. Soil Remediation (see Sub -section 3.6.3.2.1 for Impact Analysis) Prior to issuance of a grading permit the applicant shall submit evidence acceptable to the Building Department that the additional investigations and/or remedial activities at APECs identified in Tables 2 through 8 contained in Appendix I (referred to in section 3.10—Public Health and Safety) have been performed and all shallow soil contamination within the planning Exhibit A - Final Findings and Conditions GPA 93-2(AYA 800MM 14925/13A 8 Page 2 area for that project phase has been remediated to acceptable levels as defined by the Health Risk Assessment(s) and approved by the OCHCA. 10. Demolition Sampling Plan (see Sub -section 3.6.3.2.1 for Impact Analysis) Prior to the issuance of general grading permits, the project proponent shall submit a Post Demolition Investigation Work Plan to the City. The plan shall be based on the potential presence of contaminated soils, and include procedures to be followed to identify contaminated soil during the subject facility demolition process. This plan shall include a stipulation that areas of contaminated soil will not be left uncovered during the rainy season. 11. Remedial Action Plan (see Sub -section 3.6.3.2.2 for Impact Analysis) Prior to approval of any Final Subdivision Map that would create a legal building site for residential development, the project proponent shall provide the Newport Beach Planning Department a Groundwater Remedial Action Plan approved by the Regional Water Quality Control Board. Light and Glare (see Sub -section 3.8.3.3 of Impact Analysis) 12. Prior to the issuance of any building pernit for any community recreation facility or common area that includes exterior lighting the applicant shall demonstrate to the Building Department that the lighting system shall be designed, directed, and maintained in such a manner as to conceal the light source and to minimize light spillage and glare to the adjacent residential uses. The plans shall be prepared and signed by a licensed Architect or Electrical Engineer, with a letter from the Architect or Engineer stating that in his or her opinion, this requirement has been satisfied. Screening of Remediation Systems (see Sub -section 3.8.3.4 of Impact Analysis) 13. Prior to issuance of any building permit for a remediation system, the applicant shall demonstrate to the Planning Department that the screening for the structure substantially conforms to the illustrations provided in Figure 21 of the EIR. For purposes of this requirement, "interim facilities" shall mean those intended for an operation period of less than one year, and "long-term facilities" shall mean those intended for an operation period of one year or more. Fire Protection (see Sub -section 3.9.3.1 in Impact Analysis) 14. Prior to approval of tract maps or site plans, the project proponent shall make appropriate provisions to permit access by the Fire Department at all entry gates. Exhibit A - Final Findings and Conditions GPA 93-2(AyA 8001ITM 14925/13A 8 Page 3 Police (see Sub -section 3.9.3.2 in Impact Analysis) 15. Before approval of any residential building permit, the project proponent shall consult with the Police Department regarding appropriate crime prevention features in site and building design and construction. 16. Prior to approval of tract maps or site plans, the project proponent shall make appropriate provisions to permit access by police at all entry gates. 17. Project Demolition Prior to issuance of any demolition or grading permit a Project Demolition Manual shall be submitted by the applicant and approved by the Building and Fire Departments. All demolition plans and permits shall contain a note stating that all work shall be done according to the requirements and specifications contained in the manual. A copy of the approved manual shall be kept on site at all times and shall be made available to City inspectors, contractors and employees upon request. The manual shall include the following components: a. Removal of Hazardous Substances The manual shall describe the hazardous substances to be removed prior to demolition of structures, the cleanup standards to be met, and the procedures to be followed by the contractor. b. Health and Safety Plan The Health and Safety Plan shall be based on the potential presence of hazardous substances in buildings, equipment and in subsurface soils, and shall outline proper procedures and safe work practices to ensure the safety and protection of all workers involved in the demolition, environmental clean-up and general site activities, as well as residents of the surrounding area and the general public. The plan shall meet all applicable federal, state and local requirements. c. Demolition Sampling Plan The Demolition Sampling Plan shall be based on the potential presence of contaminated soils, and include procedures to be followed to identify contaminated soil during the site demolition process. d. Air Monitoring, and Response Plan The manual shall include a plan for on-site and perimeter air monitoring to be conducted during demolition and grading, and a response plan describing remedial actions to be taken in the event that unacceptable levels of air emissions are detected. Exhibit A - Final Findings and Conditions GPA 93-2(AyA 800MM 14925/DA 8 Page 4 18. Pre -Demolition Building Certification Prior to the issuance of a demolition permit for each building, the project proponent shall demonstrate to the Building Department that all pre -demolition clean-up has been completed in compliance with the Project Demolition Manual. This certification shall include the following: a. Removal of Hazardous Substances The applicant shall demonstrate that hazardous substance removal has been completed in accordance with the Project Demolition Manual. 19. Soil Remediation Prior to issuance of a grading permit the applicant shall submit evidence acceptable to the Building Department ('in coordination with the Planning Department) that the additional investigations and/or remedial activities at APECs identified in Tables 2 through 8 contained in Appendix I have been performed and all shallow soil contamination within the planning area for that project phase has been remediated to acceptable levels as defined by the Health Risk Assessment(s) and approved by the OCHCA. 20. Remedial Action Plan Prior to approval of any Final Subdivision Map that would create a legal building site for residential development, the project proponent shall provide to the Newport Beach Planning Department a Groundwater Remedial Action Plan approved by the Regional Water Quality Control Board. 21. Pre -Development Health Risk Assessments Prior to approval of any Final Subdivision Map that would create a legal building site for residential development, the project proponent shall submit to the Planning Department an OCHCA-approved Health Risk Assessment(s) and Health -Based Cleanup Levels (HBCLs) demonstrating that all potential health risks associated with soil and groundwater contamination will be eliminated prior to residential construction. Health Risk Assessment(s) shall include both construction worker and residential scenarios. Concurrent with submittal to OCHCA, the applicant shall provide all data and reports in support of the Health Risk Assessment to the City for its independent review and analysis. Prior to issuance of any residential building permit the applicant shall demonstrate that either: 1) all appropriate remedial actions have been completed to the satisfaction of OCHCA and RWQCB; or 2) any remedial actions that continue after commencement of residential construction have been determined by OCHCA to have no health risk to occupants. Exhibit A - Final Findings and Conditions GPA 93-2(AyA 900f1 -1M 14925/DA 8 Page 5 22. Post -Development Health Risk Assessments Prior to issuance of a building permit for any remedial action that would remain in operation after commencement of residential development and may involve air emissions, the proponent shall provide the Building Department with a copy of the air permit issued by the South Coast Air Quality Management District (SCAQMD). SCAQMD uses risk assessment data to establish allowable air emissions which are stipulated in the permit conditions. 23. City Monitoring of Closure, Demolition and Remediation Activities Prior to issuance of any demolition or grading permit the City shall select and retain a qualified hazardous materials consultant to monitor and verify compliance with all adopted mitigation measures related to site closure, demolition, remediation and health risk assessment activities, with the cost of this consultant to be paid by the applicant. Both the consultant and the consultant's scope of work shall be acceptable to both the City and Ford. The applicant shall provide to the City or its designee in a timely fashion copies of all written correspondence with the OCHCA, RWQCB, and any other agency involved in review and approval of soil and groundwater remediation of the site. B General Plan Amendment 93-2(A) Adopt Resolution No. 1393 recommending City Council approval of GPA 93-2(A). C. Amendment No. 800 Adopt Resolution No. 1394 recommending City Council approval of Amendment No. 800. D Development Agreement No. 8 Adopt Resolution No. 1395 recommending City Council approval of Development Agreement No. 8. In addition, the Planning Commission recommends that the following provisions be incorporated into the Development Agreement: That as a public benefit, Ford Motor Land shall pay the cost of a traffic study evaluating potential solutions to the problem of through traffic from the Bison Avenue entrance in the Eastbluff neighborhood, and shall also pay the cost of implementing a solution agreed upon by the City and the Eastbluff community with the stipulation that if a solution other than the four possibilities outlined by the City Traffic Engineer is adopted, Ford's financial obligation shall not exceed the cost of the most expensive of those four solutions; and Exhibit A - Final Findings and Conditions GPA 93-2(AyA 800MM 14925/DA 8 Page 6 2. That the Development Agreement reflect all of the conditions and mitigation measures contained in the ER and 3. That the City Council consider including in the Development Agreement a provision for indemnifying the City from liability related to contamination of the site. E Tentative Map of Tract No. 14925: Findings: 1. That the subdivision, together with the provisions for its design and improvement, is consistent with the General Plan and its objectives, policies, general land uses and programs, and the Aeronutronic Ford Planned Community Development Plan and District Regulations. 2. That the site is physically suitable for the type of development proposed. 3. That the site is physically suitable for the density of development proposed. 4. That the design of the subdivision and proposed improvements are not likely to cause substantial environmental damage or substantially and avoidably injure fish or wildlife or their habitat. 5. That the design of the subdivision is not likely to cause serious public health problems. 6. That the design of the subdivision improvements will not conflict with any casements acquired by the public at large for access through or use of property within the proposed subdivision. 7. That public improvements may be required of a developer per Section 19.08.020 of the Municipal Code and Section 66415 of the Subdivision Map Act. Conditions: 1. That a final map be recorded. That the final map be prepared so that the Bearings relate to the State Plane Coordinate System. The final map shall be prepared on the California coordinate system (NAD83) and that prior to recordation of the final map, the surveyor/engineer preparing the map shall submit to the County Surveyor a digital -graphic file of said map in a manner described in Section 7-9-330 and 7-9-337 of the Orange County Subdivision Code and Orange County Subdivision Manual, Subarticle 18. That prior to recordation of the final map, the surveyor/engineer preparing the map shall tie the boundary of the map into the Horizontal Control System established by the County Surveyor in a manner described in Section s 7-9-330 and 7-9-337 of the Orange County Subdivision Code and Orange County Subdivision Manual, Subarticle 18. Monuments Exhibit A - Final Findings and Conditions GPA 93-2(AYA 80 r M 14925/DA 8 Page 7 (one inch iron pipe with tag) shall be set On Each Lot Corner unless otherwise approved by the Subdivision Engineer. Monuments shall be protected in place if installed prior to completion of construction project. 2. That all improvements be constructed as required by Ordinance and the Public Works Department. 3. That a standard subdivision agreement and accompanying surety be provided in order to guarantee satisfactory completion of the Public improvements if it is desired to record a tract map or obtain a building permit prior to completion of the public improvements. 4. That each dwelling unit be served with an individual water service and sewer lateral connection to the public water and sewer systems unless otherwise approved by the Public Works Department and the Building Department. 5. That the on-site parking, vehicular circulation and pedestrian circulation systems be subject to further review by the Traffic Engineer. 6. That the design of the private streets and drives conform with the City's Private Street Policy (L4), except as approved by the Public Works Department. The basic roadway width shall be a minimum of 36 feet with parking on both sides. That the collector ring road shall have a minimum width of 40' curb to curb. That the cul-de-sacs shall be designed to conform to minimum City standards as shown in City Std. 103-L with planters or other designs as approved by the Public Works Department and Fire Department. That all bends in roadway shall be designed using the City standard knuckle Standard No. 104- L or other designs as approved by the Public Works Department to provide an adequate turning radius for moving vans and fire trucks. That all street curb returns shall have a minimum radius of 25. That the location of all underground utilities in the private streets shall conform to City Std. 101-L. That a minimum centerline radius for private streets shall be 150', unless otherwise approved by the Public Works Department. The location, width, configuration, and concept of the private street and drive systems shall be subject to further review and approval by the City Traffic Engineer. 7. That an Encroachment Agreement be executed for all non-standard paving improvements proposed in private streets and utility easements. 8. That the intersection of the private streets and drives be designed to provide sight distance for a speed of 25 miles per hour. Slopes, landscape, walls and other obstruction shall be considered in the sight distance requirements. Landscaping within the sight line shall not exceed twenty-four inches in height. The sight distance requirement may be modified at non-critical locations, subject to approval of the Traffic Engineer, and trees with canopies above 8 feet will be considered. Exhibit A - Final Findings and Conditions GPA 93-2(AyA 800/rIM 14925/DA 8 Page 8 9. That easements for ingress and egress be provided for all lots that do not have frontage along the private street system unless otherwise approved by the Public Works Department. 10. That the California Vehicle Code be enforced on the private streets and drives, and that the delineation acceptable to the Police Department and Public Works Department be provided along the sidelines of the private streets and drives. 11. That if it is desired to have a control gate at the entrance, a turnaround shall be provided prior to the gate. The gated entry shall have a minimum of two lanes in (one for visitors and one for owners). The guard gate shall be positioned so that a minimum of 80' is provided for automobile stacking. The design of the controlled entrance shall be reviewed and approved by the Public Works Department and Fire Department. 12. That easements for public emergency and security ingress, egress and public utility purposes on all private streets be dedicated to the City and that all easements be shown on the tract map. 13. That asphalt or concrete access roads shall be provided to all public utilities, vaults, manholes, and junction structure locations, with width to be approved by the Public Works Department. 14. That all vehicular access rights to Jamboree Road be released and relinquished to the City of Newport Beach. 15. That the following improvements be completed: a. On Jamboree Road: That the left turn lane and traffic signal be removed at the Ford -Loral entrance. This will require the construction of a median island and landscaping, removal of the north bound deceleration lane into Ford -Loral which will require the construction of new curb, gutter and sidewalk improvements along a portion of the Jamboree Road frontage and possible installation of additional street lighting where the traffic signal was removed as approved by the Public Works Department. b. On Ford Road: That the unused drive aprons be removed and replaced with curb, gutter and sidewalk, and that the unused left turn lane be removed and replace with a median island and landscaping as approved by the Public Works Department. C. That deteriorated or displaced sections of sidewalk be reconstructed along the Jamboree Road and Ford Road frontages. That all work be completed under an encroachment permit issued by the Public Works Department. Exhibit A - Final Findings and Conditions GPA 93-2(AYA 800MM 14925/13A 8 Page 9 16. That street, drainage and utility improvements be shown of standard improvement plans prepared by a licensed civil engineer. 17. That a hydrology and hydraulic study be prepared by the applicant and approved by the Public Works Department, along with a master plan of water, sewer and storm drain facilities for the on-site improvements prior to recording of the tract map. Any modifications or extensions to the existing storm drain, water and sewer systems shown to be required by the study shall be the responsibility of the developer. 18. That the drainage from the slopes adjacent to Jamboree Road and Ford Road be picked up in concrete drainage swales and conveyed to the storm drain unless otherwise approved by the Public Works Department. 19. That the drainage along the northerly tract boundary adjacent to Hartford Drive and Hillsdale Drive be directed away from tract boundaries and conveyed to the storm drain system. 20. That the Water Capital Improvement fee be paid, unless otherwise modified or waived by the City Council. 21. That prior to issuance of any grading or building permits for the site, the applicant shall demonstrate to the satisfaction of the Public Works Department and the Planning Department that adequate sewer facilities will be available for the project. Such demonstration shall include verification from the Orange County Sanitation District and the City's Utilities Department. 22. That County Sanitation District fees be paid prior to issuance of any building permits. 23. That the Public Works Department plan check and inspection fee be paid. 24. Disruption caused by construction work along roadways and by movement of construction vehicles shall be minimized by proper use of traffic control equipment and flagmen. Traffic control and transportation of equipment and materials shall be conducted in accordance with state and local requirements. There shall be no construction storage or delivery of materials within the Jamboree Road, Bison Avenue or Ford Road rights-of- way. 25. That a fire protection system acceptable to the Fire Department be installed by the developer and tested by the Fire Department prior to storage of any combustible materials or start of any structural framing. 26. That this map is for financing and conveyance purposes only, and no legal residential building sites shall be created until subsequent subdivision maps are approved and recorded. Building permits for non-residential structures (e.g., recreation facilities and Exhibit A - Final Findings and Conditions GPA 93-2(AYA 800fr M 14925/13A 8 Page 10 guard gate entrances) may be issued upon recordation of this map and satisfaction of all applicable requirements, however. 27. That all lettered lots shall be privately owned, landscaped and maintained. 28. Prior to recordation of any final map the subdivider shall submit a street naming program for approval by the Planning Commission. F:\WINDOWS\PLANNING\\JOHN-D\FORD\PC\F&C-FINL.DOC Exhibit A - Final Findings and Conditions GPA 93-2(AYA 800/ITM 14925/DA 8 Page 11 EXHIBIT "D" Estoppel Certificate Date Requested: Date of Certificate: On July 24, 1995, the City of Newport Beach (the "City") approved City Development Agreement No. 8 (the "Agreement") entitled "Development Agreement between the City of Newport Beach and Ford Motor Land Development Corporation." Within this Estoppel Certificate, Ford Motor Land Development Corporation shall be referred to as "Owner." This Estoppel Certificate certifies that, to the best of the City's knowledge as of the "Date of Certificate" set forth above: [CHECK WHERE APPLICABLEI 1. The Development Agreement remains binding and effective; 2. The Development Agreement has not been amended; 3. The Development Agreement has been amended in the following aspects: 4. Neither Owner nor any of its successors is in default under the Development Agreement; 071995 / F31331-002 / 36069.1 5. The following defaults exist under the Development Agreement: This Estoppel Certificate may be relied upon by any transferee or mortgagee of any interest in the property which is the subject of the Development Agreement. CITY OF NEWPORT BEACH By— Name Title 071995 / F31331-002 / 36069.1 EXHIBIT C ADDENDUM per Section 2.35 of First Amended City of Newport Beach Development Agreement No. 8 Planning Commission Minutes August 8, 1996 Municipal Code. TRAFFIC STUDY NO. 109 That raffic Study has been prepared which analyzes the impact of the propose roject on the peak -hour traffic and circulation system in accordanc ith Chapter 15 of the Newport Beach Municipal Code and City Policy L-18 rmerlyS-1). 2. That the Traffic StudyNs been reviewed by the City Traffic Engineer and found in compliance wit he Traffic Phasing Ordinance. 3. That the Traffic Study indicates tbqt the project -generated traffic will neither cause nor make worse an unsatTsibctory level of traffic on any 'major,' primary -modified,' or 'primary' street, ased on the characteristics of the proposed development. 4. That the Traffic Study indicates that the project- nerated traffic will not be greater than one percent of the existing traffic dur the 2.5 hour morning peak period on any study intersection and that theref e no further study of those intersectionsis warranted. 5. That the Traffic Study indicates that the project -generated tr is will be greater than one percent of the existing traffic during the hour afternoon peak period on two of the study intersections and that f her ICU analysis for both intersections indicates an acceptable ICU value of le than 0.90 is achieved. II. SUBJECT: Pacific Bay Homes 2300 Jamboree Road • Tentative Map of Tract No. 15332 Subdivision of a parcel of land into 404 numbered lots, 50 lettered lots and a parcel of land for roadway dedication in conjunction with a residential development. Commissioner Thomson stepped down from the dais because of a possible conflict of interest. Ms. Temple indicated the provided copies of a letter from the Belcourt Master Association received this afternoon at the Planning Department. This letter advises that concerns previously expressed in a letter attached to the staff report have been resolved between themselves and Pacific Bay Homes. 7 INDEX Item No. 2 Tentative Map of Tract No. 15332 Approved City of Newport Beach Planning Commission Minutes August 8, 1996 Mr. Garcia indicated that a supplemental report was distributed to the Commission. This report includes wording modifications to specified conditions of approval. Staff has met with the applicant to review these changes and all agree to these changes. Chairperson Adams asked staff if this Tract Map represents any substantive changes from the preliminary exhibits at prior meetings. Staff answered there were none. Public Hearing was opened. Mr. Tim Paone, representing Pacific Bay Homes stated that the applicant has read the staff report with modifications and agrees to the findings and conditions of Tentative Map of Tract No. 15332. Patricia Begg, 11 Northampton Court, Belcourt Hill - spoke of unresolved concerns of the development impact on her property. Ms. Temple stated that the issues raised regarding traffic, pollution, groundwater situation were previously addressed by the Commission and City Council during the process authorizing the overall entitlement for the project. Ms. Lynn Hetherington, the City's consultant on this project, is present and can give a verbal report at Commission request. Public Hearing was closed. Commissioner Ashley commented that the issues have been resolved by the Belcourt Association and the applicant in a cooperative and professional manner and do not need to be addressed by the Commission. Motion was made by Commissioner Ridgeway for approval of Tentative Map of Tract No. 15332. Ayes: Ridgeway, Kranzley, Adams, Gifford and Ashley Noes: none Absent: Selich Abstain: Thomson Findings That the map meets the requirements of Title 19 of the Newport Beach Municipal Code, all ordinances of the City, all applicable general or specific plans, and the Planning Commission is satisfied with the plan of subdivision; and that for the reasons set forth in detail in the staff report to the Planning Commission dated August 8; 1996, none of the findings which would require the denial of Tentative Map of Tract No. 15332 can be made in this case. 1111161# 1 City of Newport Beach Planning Commission Minutes August 8, 1996 That the proposed subdivision presents no problems from a planning standpoint, since it is consistent with the approved Development Agreement No. 8 and the requirements of the Aeronutronic Ford Planned Community District Regulations. 3. That the design of the subdivision improvements will not conflict with any easements acquired by the public at large for access through or use of property within the proposed subdivision. 4. That public improvements may be required of a developer per Section 19.08.020 of the Municipal Code and Section 66415 of the Subdivision Map Act. 5. That Final EIR No. 153 (SCH #94011022), previously certified on July 10, 1995, was considered prior to approval of the project, was determined adequate for this project, and satisfies all requirements of CEQA. The Final EIR reflects the independent judgment of the City Council. That the mitigation monitoring requirements of Public Resources Code Section 21081.6 will be met through required compliance with applicable codes, standards, mitigation measures, and conditions of approval adopted in connection with the project and as stated in the Mitigation Monitoring and Reporting Program for the project as contained in Final EIR No. 153. Conditions: That a final map be recorded. That the final map be prepared so that the Bearings relate to the State Plane Coordinate System. The final map shall be prepared on the California coordinate system (NAD83) and that prior to recordation of the final map, the surveyor/engineer preparing the map shall submit to the County Surveyor a digital -graphic file of said map in a manner described in Section 7-9-330 and 7-9-337 of the Orange County Subdivision Code and Orange County Subdivision Manual, Subarticle 18. That prior to recordation of the final map, the surveyor/engineer preparing the map shall tie the boundary of the map into the Horizontal Control System established by the County Surveyor in a manner described in Section s 7-9-330 and 7-9-337 of the Orange County Subdivision Code and Orange County Subdivision Manual, Subarticle 18. Monuments (one inch iron pipe with tag) shall be set On Each Lot Corner unless otherwise approved by the City Subdivision Engineer. Monuments shall be protected in place if installed prior to completion of construction project. That all improvements be constructed as required by Ordinance and the U16101 City of Newport Beach Planning Commission Minutes August 8, 1996 Public Works Department. INDEX 3. That a standard subdivision agreement and accompanying surety be provided in order to guarantee satisfactory completion of the Public improvements if it is desired to record a tract map or obtain a building permit prior to completion of the public improvements. 4. That each dwelling unit be served with an individual water service and sewer lateral connection to the public water and sewer systems unless otherwise approved by the Public Works Department and the Building Department. 5. That the on-site parking, vehicular circulation and pedestrian circulation systems be subject to further review by the Traffic Engineer. A Traffic Engineering Study is required for any proposed modifications to the left turn pockets on Bison Avenue and Ford Road that serve the development. Final lane geometrics shall be reviewed and approved by the City Traffic Engineer. That the design of the private streets and drives conform with the City's Private Street Policy (L-4), except as approved by the Public Works Department. The basic roadway width shall be 36 feet with parking on both sides and 32 feet minimum with parking on one side. That the collector ring road shall have a minimum width of 40' curb to curb. That the cul-de-sacs shall be designed to conform to minimum City standards as shown in City Std. 103-L with planters or other designs as approved by the Public Works Department and Fire Department. That all bends in roadway shall be designed using the City standard knuckle Standard No. 104-L or other designs as approved by the Public Works Department to provide an adequate turning radius for moving vans and fire trucks. That all street curb returns shall have a minimum radius of 25'. That the location of all underground utilities in the private streets shall conform to City Std. 101-L (or as approved on the master plan). That a minimum centerline radius for private streets shall be 150'. The location, width, configuration, and concept of the private street and drive systems shall be subject to further review and approval by the City Traffic Engineer. That prior to issuance of any improvement plans (unless otherwise approved by the Public Works Department) and/or prior to issuance of any building permits, the applicant shall demonstrate to the Planning Department that the street lighting system shall be designed, directed, and maintained in such a manner as to conceal the light source and to minimize light spillage and glare to the adjacent residential uses. The plans shall be prepared and signed by a licensed Electrical Engineer acceptable to the City, with a letter from the engineer stating that, in his opinion, this requirement has been met. 10 City of Newport Beach Planning Commission Minutes August 8, 1996 8. Cul-de-sacs with a design length greater than 500 feet must have the written approval of the City Fire Department prior to recordation of the final tract map. That the intersection of the private streets and drives be designed to provide sight distance for a speed of 25 miles per hour. Slopes, landscape, walls and other obstruction shall be considered in the sight distance requirements. Landscaping within the sight line shall not exceed twenty-four inches in height. The sight distance requirement may be modified at non-critical locations, subject to approval of the Traffic Engineer. 10. That the California Vehicle Code be enforced on the private streets and drives, and that the delineation acceptable to the Police Department and Public Works Department be provided along the sidelines of the private streets and drives. 1'l. That if it is desired to have a control gate at the entrance, a turnaround shall be provided prior to the gate. The gated entry shall have a minimum of two lanes in (one for visitors and one for owners). The guard gate shall be positioned so that a minimum of 80' is provided for automobile stacking. The design of the controlled entrance shall be reviewed and approved by the Public Works Department and Fire Department. 12. That easements for public emergency and security ingress, egress and public utility purposes on all private streets be dedicated to the City and that all easements be shown on the tract map. 13. That asphalt or concrete access roads shall be provided to all public utilities, vaults, manholes, and junction structure locations, with width and material to be approved by the Public Works Department. 14. That all vehicular access rights to Jamboree Road be released and relinquished to the City of Newport Beach. 15. That the following improvements be completed: On Jamboree Road: That the left turn lane and traffic signal be removed at the Ford -Loral entrance. This will require the construction of a median island and landscaping, removal of the north bound deceleration lane into Ford -Loral which will require the construction of new curb, gutter and sidewalk improvements along a portion of the Jamboree Road frontage and possible installation of additional street lighting where the traffic signal was removed as approved by the Public Works Department. INDEX City of Newport Beach Planning Commission Minutes August 8, 1996 INDEX • On Ford Road: That the unused drive aprons be removed and replaced with curb, gutter and sidewalk, and that the unused left turn lane be removed and replaced with a median island and landscaping as approved by the Public Works Department. • That deteriorated or displaced sections of sidewalk be reconstructed along the Jamboree Road and Ford Road frontages. • That the drainage from the slopes adjacent to Jamboree Road and Ford Road be picked up in concrete drainage swales provided behind the sidewalks and conveyed to the storm drain unless otherwise approved by the Public Works Department. The design shall be approved by the Public Works Department. • That all work be completed under an encroachment permit issued by the Public Works Department. 16. That street, drainage and utility improvements be shown of standard improvement plans prepared by a licensed civil engineer. 17. That a hydrology and hydraulic study be prepared by the applicant and approved by the Public Works Department, along with a master plan of water, sewer and storm drain facilities for the on-site improvements prior to recording of the tract map. Any modifications or extensions to the existing storm drain, water and sewer systems shown to be required by the study shall be the responsibility of the developer. The developer may be required to upgrade the City's Belcourt sewer pump station to handle the additional sewage generated from the proposed development or may be required to construct a new trunk line to connect to the Irvine Ranch Water District facilities, if determined necessary by future engineering studies and reports as required by the Utilities Division. 18. DELETED. 19. DELETED. 20. That prior to issuance of any grading or building permits for the site, the applicant shall demonstrate to the satisfaction of the Public Works Department and the Planning Department that adequate sewer facilities will be available for the project. Such demonstration shall include verification from the Orange County Sanitation District and the City's Utilities Department. 21. That County Sanitation District fees be paid prior to issuance of any building permits if applicable. 12 City of Newport Beach Planning Commission Minutes August 8, 1996 INDEX 22. That the Public Works Department plan check and inspection fee be paid. 23. Disruption caused by construction work along roadways and by movement of construction vehicles shall be minimized by proper use of traffic control equipment and flagmen. Traffic control and transportation of equipment and materials shall be conducted in accordance with state and local requirements. There shall be no construction storage or delivery of materials within the Jamboree Road, Bison Avenue or Ford Road rights-of-way, unless otherwise approved by the Public Works Department. Street closures for deliveries shall be approved by the City Traffic Engineer and subject to the approval and issuance of an encroachment permit by the Public Works Department. 24. That a fire protection system acceptable to the Fire Department be installed by the developer and tested by the Fire Department prior to storage of any combustible materials or start of any structural framing. 25. That a non-standard improvement agreement be executed with the developer/community association if textured pavement is used in the private streets or easements. This agreement will require the developer/association to replace the improvements at no cost to the City should they have to be removed to maintain the public utilities. 26. That demolition, site preparation and other construction activity shall be limited to the hours of 7:00 a.m. to 6:30 p.m. Monday through Friday, and 8:00 a.m. to 6:00 p.m. Saturdays, in accordance with Newport Beach Municipal Code Section 10.28.040 and any other appropriate sections of the Municipal Code. 27. That at the time of building or grading permit issuance, the applicant shall demonstrate that adequate noise control measures, at all construction sites, are provided through the provision of mufflers and the physical separation of machinery maintenance areas from adjacent residential uses (in accordance with Noise Element Policy 4.3.5). 28. All residential lots and dwellings shall be sound attenuated against present and projected noise which shall be the sum of all noise impacting the project so as not to exceed an exterior standard of 65 dBA CNEL in outdoor living areas and an interior standard of 45 dBA CNEL in all habitable rooms (windows closed) or 55 dBA CNEL with windows open. Evidence prepared by a County -certified acoustical consultant, that these standards will be satisfied in a manner consistent with applicable regulations, shall be submitted as follows: a. Prior to the recordation of a final tract/parcel map or prior 13 City of Newport Beach Planning Commission Minutes August 8, 1996 INDEX to the issuance of grading permits, an acoustical analysis report shall be submitted to the Building and Planning Director for approval. The report shall describe in detail the exterior noise environment and mitigation measures. Acoustical design features to achieve interior noise standards shall be included in the report which also satisfy "b" below. b. Prior to the issuance of any building permits for residential construction, an acoustical analysis report describing the acoustical design features of the structures required to satisfy the exterior and interior noise standards shall be submitted to the Building and Planning Director, for approval along with satisfactory evidence which indicates that the sound attenuation measures specified in the approved acoustical report have been incorporated into the design of the project. C. Prior to the issuance of any building permits, all freestanding acoustical barriers must be shown on the project's plot plan illustrating height, location and construction in a manner meeting the approval of the Building and Planning Director. 29. That no stationary construction equipment shall be permitted to operate in a manner that results in either: a. An exterior noise level greater than 55 dBA Leq (daytime) or 50 dBA (nighttime) at the property line of any occupied residence; or b. An interior noise level greater than 45 dBA Leq in any occupied residence. 30. Prior to the issuance of any demolition, grading or building permits the project applicant shall demonstrate that all construction staging shall be performed on-site as far as feasible from occupied dwellings. 31. Prior to issuance of any building permit for remediation equipment, the applicant shall submit to the Building Department a report prepared by a licensed acoustical engineer certifying that operation of the equipment will not cause an increase in ambient noise of greater than 1 dBA nor exceed an exterior noise level of 55 dBA Leq (daytime) or 50 dBA Leq (night time) measured at the project property line, or an interior level of 45 dBA Leq, or as set forth in the City's Noise Ordinance (Community Noise Control Ordinance). 14 City of Newport Beach Planning Commission Minutes August 8, 1996 INDEX 32. All grading shall conform to the requirements of Sec. 15.04.140 of the Municipal Code (Excavation and Grading Code) and shall require approval of grading plans and permits unless otherwise approved by the Building Department. Grading plans shall include, but may not be limited to, the following: a. Detailed plans of all surface and subsurface drainage devices, walls, cribbing, dams, and other protective devices to be constructed with, or as a part of the proposed work, together with a map showing the drainage area and the estimated runoff of the area served by any drains; b. Detailed plans for temporary (during construction) and/or permanent sediment, erosion and pollution control facilities. The Building Official may require the inclusion of pollutant traps on the plans and specifications to intercept pollutants draining from the project; C. Any additional plans, drawings, calculations, environmental impact information, or other reports required by the Building Official. If the grading project includes the movement of earth material to or from the site, the Building Official may require a description of the haul route to be submitted for approval. d. If required by the Building Official, a Soil Engineering Report including data regarding the nature, distribution, strength consolidation characteristics of existing soils, conclusions and recommendations for grading procedures, and design criteria for corrective measures when necessary, and opinions and recommendations covering adequacy of sites to be developed by the proposed grading. These listings shall not be interpreted to prevent the Building Official from requiring other information required to produce a safe and stable condition. e. If required by the Building Official, an Engineering Geology Report including an adequate description of the geology of the site, including necessary maps and illustrations showing geographic distribution of the features described related to the proposed development, conclusions and recommendations regarding the effect of geologic conditions on the proposed development, and opinions and recommendations covering the adequacy of sites to be developed by the proposed grading. 15 City of Newport Beach Planning Commission Minutes August 8, 1996 INDEX Recommendations included in the report and approved by the Building Official shall be incorporated into the grading plans and specifications. 33. All structures shall be designed and constructed in accordance with the seismic design requirements of the Uniform Building Code and/or the Structural Engineers Association of California. 34. A master drainage plan shall be prepared prior to subsequent discretionary actions (final maps or resubdivisions) for each project phase at the contributory drainage area level. 35. The velocity of concentrated runoff from all lots shall be evaluated and controlled, as necessary, as part of project design to minimize impacts of adjacent lots and off-site areas. 36. The project design engineer shall review and state that the discharge of surface runoff from the project area will be performed in a manner to assure that increased peak flows from the project will not significantly increase erosion downstream. This certification shall be reviewed and approved by the Planning and Building Department. 37. Existing on-site drainage facilities shall be improved or updated as necessary to the satisfaction of the City of Newport Beach Public Works Department. 38. All parking and other on-site paved surfaces shall be routinely vacuum - swept and cleaned to reduce debris carried into the drainage system. This measure shall be included in project Covenants, Conditions, and Restrictions. 39. Project design at all levels shall incorporate both appropriate structural and non-structural water Quality Best Management Practices (BMPs) consistent with the Countrywide Drainage Area Management Plan, dated October 1993. Compliance shall be determined by the Newport Beach Public Works Department prior to any subsequent discretionary actions. 40. A copy of the SWPPP construction activities shall be maintained on-site for convenient reference by construction personnel. 41. Prior to issuance of a grading permit the applicant shall submit evidence acceptable to the Building Department that the additional investigations and/or remedial activities at APECs identified in Tables 2 through 8 contained in Appendix I (referred to in section 3.10 -Public Health and Safety) of EIR 153, have been performed and all shallow soil 16 City of Newport Beach Planning Commission Minutes August 8, 1996 INDEX contamination within the planning area for that project phase has been remediated to acceptable levels as defined by the Health Risk Assessment(s) and approved by the OCHCA. 42. Prior to the issuance of general grading permits, the project proponent shall submit a Post Demolition Investigation Work Plan to the City. The plan shall be based on the potential presence of contaminated soils, and include procedures to be followed to identify contaminated soils, and include procedures to be followed to identify contaminated soil during the subject facility demolition process. This plan shall include a stipulation that areas of contaminated soil will not be left uncovered during the rainy season. 43. Prior to approval of any Final Subdivision Map that would create a legal building site for residential development, the project proponent shall provide the Newport Beach Planning Department a Groundwater Remedial Action Plan approved by the regional Water Quality Control Board. 44. Prior to the issuance of any building permit for any community recreation facility or common area that includes exterior lighting the applicant shall demonstrate to the Building Department that the lighting system shall be designed, directed, and maintained in such a manner as to conceal the light source and to minimize light spillage and glare to the adjacent residential uses. The plans shall be prepared and signed by a licensed Architect or Electrical Engineer, with a letter from the Architect or Engineer stating that in his or her opinion, this requirement has been satisfied. 45. Prior to issuance of any building permit for a remediation system, the applicant shall demonstrate to the Planning Department that the screening for the structure substantially conforms to the illustrations provided in Figure 21 of the EIR. For purposes of this requirement, "interim facilities" shall mean those intended for an operation period of less than one year, and "long-term facilities" shall mean those intended for an operation period of one year or more. 46. All buildings in excess of 5,000 square feet shall be equipped with automatic fire sprinkler protection. 47. Fire vehicle access to all planned structures and sites shall be approved by the Fire Department. 48. On-site water mains and fire hydrant locations shall be approved by the Fire and Public Works Departments. 17 City of Newport Beach Planning Commission Minutes August 8, 1996 INDEX 49. Fire flow from fire hydrants shall be provided in accordance with the requirements of the Fire Department. 50. Prior to issuance of any Building Permit, the project proponent shall pay all applicable Fire Department plan check and permit review fees. 51. Final design of any structures within the project area shall provide for the incorporation of water -saving devices for lavatories and other water using facilities. 52. DELETED. 53. Prior to approval of tract maps or site plans, the project proponent shall make appropriate provisions to permit access by the Police and Fire Departments at all entry gates. 54. Prior to approval of any residential building permits, the project proponent shall consult with the Police Department regarding appropriate crime prevention features in site and building design and construction. 55. That any rooftop or other mechanical equipment shall be sound attenuated in such a manner as to achieve a maximum sound level in accordance with of 55 dBA at the property line. 56. That any mechanical equipment and emergency power generators shall be screened from view and noise associated with said installations shall be sound attenuated to acceptable levels in receptor areas. The latter shall be based upon the recommendations of a qualified acoustical engineer, and be approved by the Planning Department. 57. That any cul-de-sac, building address, and street name shall comply with City Standards and shall be approved by the Fire Department and the Planning Department prior to recordation of any Final Map. 58. A qualified archaeologist or paleontologist shall evaluate the site prior to commencement of construction activities, and that all work on the site be done in accordance with the City's Council Policies K-5 and K-6. 59. That all applicable mitigation measures imposed by Environmental Impact Report No. 153 and conditions of approval of Development Agreement No. 8 and its amendments shall be fulfilled. 60. That all lettered lots shall be privately owned, landscaped and maintained, unless otherwise approved by the Public Works Department. 18 City of Newport Beach Planning Commission Minutes August 8, 1996 61. That a siltation, dust and debris control plan shall be submitted and subject to approval by the Building Department and a copy shall be forwarded to the California Regional Water Quality Control Board, Santa Ana Region, as required by the Building Department Official. This shall be a complete plan for temporary and permanent facilities to minimize any potential impacts from silt, debris and other water pollutants. 62. That the siltation, dust and debris control plan shall include a description of haul routes, access points to the site, watering, and sweeping program designed to minimize impact of haul operations. 63. That this tentative tract map shall expire if the map has not been recorded within 3 years of the date of approval, unless an extension is granted by the Planning Commission. SUBJECT: Christiano Residence (Scot Martin, Architect) 600 Larkspur Avenue • Variance No. 1210 The construction f a single family dwelling and attached garage which exceeds the allowable floor brea and will not provide the required open space on property located in the R-2 Distn t. Mrs. Genia Garcia presented the staff report and summarized the contents. Highlighted areas of the projec description are: proposed structure to encroach 7 feet into the required 10 foot re and setback, bay window on the first floor to encroach 18 inches into the 3 foot s e yard setback, where the Code allows a 1 foot encroachment; bay window with\k,where r privacy on the second floor to encroach 1 foot into the side yard sthe Code does not allow bay window encroachments in side yard e second floor and a fence that is designed as an architectural sion to encroach into the 10 foot rear yard setback ranging in heigto 8 feet at the property line. Public Hearing was opened. Mr. Scot Martin, 31588 Westline Drive, Laguna Niguel ar itect representing the owners, in response to Commission inquiry, stated that they un era and agree to the findings and conditions of the Variance No. 1210. Commissioner Kranzley referred to page 7 of the staff report regar ' g "...open space cube be provided with a minimum dimension in any direction of least six feet that meets with the requirements of Section 20.1 1.040 ....." and ask Mr. Martin if that condition had been met. Discussion followed. 19 INDEX Item No. 3 Variance 1210 Approved 1,REr DINGR tMR GOVERNMENT WE 6103 Recording Requested By and When Recorded Return to: City Clerk City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92660 071495 / F31331-002 / 15774.16 Recorded in the county of orange. California Gary L. Granville, clerk/Recorder No Fee 19950419516 1218P) 09/26/95 008 020422 14 32 MB6 W2 2 7.00 3.00 3.00 0.00 0.00 0.00 DEVELOPMENT AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND FORD MOTOR LAND DEVELOPMENT CORPORATION NO. 8 Approved July 24, 1995 Ordinance No. 95-27 Submitted By: Paone, Callahan, McHolm & Winton 19100 Von Karman Avenue, 8th Floor P.O. Box 19613 Irvine, CA 92713-9613 a ne )D151 Vl FORD MOTOR LAND DEVELOPMENT CORPORATION NO. 8 Approved July 24, 1995 Ordinance No. 95-27 Submitted By: Paone, Callahan, McHolm & Winton 19100 Von Karman Avenue, 8th Floor P.O. Box 19613 Irvine, CA 92713-9613 DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT (the "Agreement") is entered into between the City of Newport Beach (the "City"), and Ford Motor Land Development Corporation ("Ford Land"). 1. RECITALS. This Agreement relates to the following: 1.1 Purpose of Agreement. This Agreement is intended to: a. Provide for the orderly transition of the land use on a property commonly known as the "Loral Site" from commercial/industrial uses to less intense residential uses. b. Establish the parameters of building height, density, location, and timing to minimize, to the extent reasonably feasible, any significant adverse impacts of Ford Land's proposed residential development on the environment. C. Provide the City with greater certainty that the project will be implemented as presently planned so that the City will receive the substantial economic benefits projected by the project's fiscal impact study. d. Provide public benefits to the City in excess of normal mitigation requirements in the form of (1) substantial financial assistance from Ford Land in resolving a long- standing traffic circulation issue in the Eastbluff community, (2) financing by Ford Land of extraordinary environmental monitoring of site remediation, and (3) and the provision of assurances by Ford Land with respect to the funding and/or provision of affordable housing units within the City. 1.2 Authorization. This Agreement is authorized by, and is consistent with, the provisions of 65864 et seq. of the Government Code of the State of California, and Chapter 15.45 of the Newport Beach Municipal Code. 1.3 Interest of Ford Land. Ford Land is the legal and/or equitable owner of approximately 98.1 acres of real property located in the City and more particularly described in Exhibit "A" (the "Property"). 1.4 Development of the Property. Subject to those conditions and mitigation measures identified in Environmental Impact Report No. 153 for Ford Land Newport (the "EIR") which were imposed by the City Council as conditions to approval of all or part of the Development Plan, 071495 / F31331-002 / 15774.16 1 this Agreement authorizes development on the Property consistent with the Development Plan. 1.5 Condition of Site. The Property is occupied by buildings constructed over the last thirty years to house research, design, and industrial types of uses. As part of the Development Plan, Ford Land will demolish the existing structures. Additionally, prior activities on the site have resulted in soil and groundwater contamination which would be remediated by Ford Land with or without this Agreement. 1.6 Protect Benefits. While the landowner has the right to continue the presently permitted uses on the Property, existing circumstances present the City with the opportunity to establish, with the landowner's cooperation, new economically and environmentally viable uses on the Property. The proposed project presents a relatively unique opportunity to reduce the intensity of land uses occurring on the site. The EIR has demonstrated that the conversion of the existing research and development uses on the Property to residential uses will provide substantial benefits to the community through the improvement of environmental conditions related to traffic, air pollution, the potential for groundwater pollution, the consumption of non-renewable energy resources, and noise. Additionally, a review of the fiscal impacts of the proposed project indicates that the City will derive increased revenues from property and sales tax as a result of the proposed project. 1.7 Planning Commission/City Council Hearings. The Planning Commission, after giving appropriate notice, held public hearings to consider this Agreement, the General Plan Amendment (see Section 2.22 below), the proposed PC Text amendments (see Section 2.29 below), and the EIR on June 8, 1995. The City Council conducted public hearings on the Development Plan, the Development Agreement, and the EIR on July 10, 1995. 1.8 Consistency. This Agreement is consistent with the various elements of the Newport Beach General Plan, the Development Plan, and other applicable ordinances, plans, and policies of the City. This Agreement is also consistent with the purpose and intent of state and local laws authorizing development agreements in that it represents Ford Land's commitment to comprehensive planning, provides certainty in the approval of subsequent projects subject to compliance with conditions, reduces the economic costs of development by providing assurance to Ford Land that it may proceed with projects in accordance with existing regulations, and provides assurance to adjoining property owners that limits on the height of structures and amount of development as specified in the Development Plan will remain in full force and effect during the term of this Agreement. 1.9 Police Power. The City Council has determined that this Agreement is in the best interests of the health, safety and general welfare of the City, its residents and the public, was entered into pursuant to, and represents a valid exercise of, the City's police power, and has been 071495 / F3133I-M / 15774.16 2 approved in accordance with the provisions of state and local law that establish procedures for the approval of development agreements. 1.10 City Ordinance. On July 10, 1995, the City Council approved this Agreement and conducted the first reading of Ordinance No. 95-27 approving and authorizing the City to enter into this Agreement (the "Adopting Ordinance"). On July 24, 1995, the City Council completed adoption of the Adopting Ordinance. The Adopting Ordinance became effective on August 23, 1995. 2. DEFINITIONS. 2.1 The "Adopting Ordinance" refers to City Ordinance No. 95-27 adopted by the City Council on July 24, 1995, authorizing the City to enter into this Agreement. 2.2 "Agreement" refers to this "Development Agreement Between the City of Newport Beach and Ford Motor Land Development Corporation." The Agreement is also identified by the City as the City's Development Agreement No. 8. 2.3 "Annual Review" refers to the review of Ford Land's good faith compliance with this Agreement as set forth in Section 6. 2.4 The "Approval Date" means July 24, 1995, the date on which the City Council voted to approve this Agreement and the Adopting Ordinance. 2.5 All forms of use of the verb "assi n" and the nouns "assignment" and "assignee" shall include all contexts of hypothecations, sales, conveyances, transfers, leases, and assignments. 2.6 "CEQA" and the "CEQA Guidelines" refers to the California Environmental Quality Act and the CEQA Guideline promulgated by the Secretary of Resources of the State of California. 2.7 "City„ refers to the City of Newport Beach, California. 2.8 "City Council" refers to the City Council of the City. 2.9 "Cure Period" refers to the period of time during which a Default may be cured pursuant to Section 9. 2.10 A "day„ or "days" refers to a calendar day, unless expressly stated to be a business day. 071495 / F31331-002 / 15774.16 3 2.11 A "Default" refers to any material default, breach, or violation of the provisions of this Agreement. A "City Default" refers to a Default by the City, while a "Ford Land Default" refers to a default by Ford Land. 2.12 "Development Permit" means building permits, grading permits and other permits authorizing construction activity. 2.13 The "Development Plan" refers to (i) the General Plan Amendment (see Section 2.22), (ii) the PC Text (see Section 2.29), and (iii) the Tentative Map (see Section 2.33 below). 2.14 The "Effective Date" refers to the effective date of the Adopting Ordinance and is the effective date of this Agreement. 2.15 The "EIR" refers to Environmental Impact Report No. 153 of the City of Newport Beach. 2.16 An "Estoppel Certificate" refers to the document certifying the status of this Agreement required by Section 6.6 in the form of Exhibit "D". 2.17 An "Exhibit" refers to an exhibit to this Agreement. All Exhibits are incorporated as a substantive part of this Agreement. The Exhibits to this Agreement are: Exhibit A: Legal Description of the Property Exhibit B: Map of the Property Exhibit C: List of Project Conditions Exhibit D: Estoppel Certificate 2.18 "Existing General Regulations" means those General Regulations approved by the City on or before the Approval Date (irrespective of their effective date) and not rescinded or superseded by City action taken on or before the Approval Date. 2.19 Financing District. "Financing District" for purposes of this Agreement means any assessment district, special district, community facilities district, maintenance district, or other similar district, legal entity, or mechanism formed pursuant to the provisions of legislation in effect at the time the Financing District is formed. The purpose of a Financing District is to finance the cost of public improvements, facilities, maintenance, or services. Examples include districts formed under the Municipal Improvement Acts of 1911 and 1913 and the Mello -Roos Community Facilities District Act of 1982. 2.20 "Ford Land" refers to Ford Motor Land Development Corporation. 2.21 "Future General Regulations" means those General Regulations (see Section 2.23 below) adopted by the City after the Approval Date. 071495 / F31331-002 / 15774.16 4 2.22 The "General Plan Amendment" means GPA -93-2(A) amending the general plan of the City as approved by the City Council on July 10, 1995. 2.23 "General Regulations" means those ordinances, rules, regulations, policies, and guidelines of the City, which are generally applicable to the use of land and/or construction within the City and include, the Fair Share Traffic Contribution Fee Ordinance, Uniform Building Codes and water and sewer connection and fee ordinances. 2.24 "General Plan" refers to the City's General Plan in effect on the Approval Date, plus all amendments to the General Plan adopted by the City on or before the Approval Date as part of the Development Plan. 2.25 "Includes" and all contexts and forms of the words "includes" and _"includinj4" shall be interpreted to also state "but not limited to. " 2.26 "Mortgagee" refers to the holder of a beneficial interest under any mortgage, deed of trust, sale-leaseback agreement, or other transaction under which all or a portion of the Property, including those portions acquired by assignees, is used as security (a "Mortgage") or the owner of any interest in all or any portion of the Property under a Mortgage, including those portions acquired by assignees. 2.27 "Notice" refers to any written notice or demand between the Parties required or permitted by this Agreement. 2.28 The "Parties" refers to the City and Ford Land and a "Party„ shall refer to either of the Parties. 2.29 The "PC Text" refers to the "Aeronutronic Ford Planned Community District Regulation" as amended by the City Council on July 10, 1995, with the approval of Amendment No. 800. 2.30 "Planning Commission" refers to the Planning Commission of the City. 2.31 The "Project" refers to the proposed development of the Property pursuant to the Development Plan and this Agreement. 2.32 The "Property" refers to the real property described on Exhibit "A" and depicted on Exhibit "B. " 2.33 The "Tentative Map" refers to the tentative tract map for Tract No. 14925 approved by the City Council on July 10, 1995. 071495 / F31331-002 / 15774.16 5 3. CONDITIONS TO DEVELOPMENT. 3.1 Introduction. The provisions of this Section express the intent of the Parties regarding the extent to which this Agreement vests Ford Land's right to proceed with the development described in the Development Plan. Ford Land acknowledges that its right to proceed with development described in the Development Plan is subject to numerous conditions including the following: (a) The specific limitations and restrictions contained in the Development Plan; (b) Conditions and mitigation measures imposed by the City Council to mitigate significant effects identified in the EIR; (c) Conditions imposed by the City as a result of subsequent or supplement environmental analysis pursuant to provisions of CEQA and the CEQA Guidelines; (d) Compliance with the terms and conditions specified in this Agreement; and (e) Compliance with the Existing General Regulations. 3.2 Compliance with Development Plan Conditions/Mitigation Measures. Ford Land acknowledges that City Council approval of the Development Plan and this Agreement was subject to compliance with numerous conditions and mitigation measures designed to minimize or eliminate the significant adverse effects of the Project and insure the health, safety, and welfare of nearby residents as well as residents of the proposed project. Pursuant to CEQA, many of these conditions and mitigation measures impose specific development standards and requirements to be implemented in conjunction with further study and analysis of site or subsurface conditions before certain specified development activity is permitted. In certain instances, these mitigation measures may exceed those which might otherwise be appropriate under "nexus" and "rough proportionality" tests. By entering into this Agreement, Ford Land agrees to be bound by and waives any protest of any such project conditions. The conditions and mitigation measures adopted by the City Council are set forth in Exhibit C. 3.3 Compliance with General Regulations. Ford Land is required to comply with the Existing General Regulations. As to those Existing General Regulations which require the payment of fees, costs, and expenses, for a development application, the applicable fee, cost, or expense shall be that in effect on the date such an application is determined by the City to be complete. Ford Land shall also comply with any Future General Regulation that does not impair or affect its ability to develop the Property in accordance with the Development Plan. Ford Land shall also comply with all provisions of the Uniform Building Code, whether 071495 / F31331-002 / 15774.16 6 adopted before or after the Approval Date, which are in effect at the time applications for specific development permits are deemed complete. 3.4 Water Capital Improvement Charges. Section 14.33.040 of the City's Municipal Code provides for the payment of a "water capital improvement charge" for lands designated pursuant to Section 14.33.030 of the Municipal Code. Section 14.33.040 of the Municipal Code relates only to system facilities that will be needed to serve an "undeveloped area. " Because the Project consists of replacement of an existing use on a previously developed site which can be adequately served from existing City water facilities, Ford Land shall not be required to pay water capital improvement fees to the City. 3.5 Public Health and Safety/Uniform Codes. This Agreement shall not prevent the City from either (i) adopting Future General Regulations (including uniform codes which are based on recommendations of a multi -state professional organization and become applicable throughout City, such as, but not limited to, the Uniform Building Code, Uniform Electrical Code, Uniform Mechanical Code or Uniform Fire Code) or (ii) taking action or imposing conditions inconsistent with the Development Plan on future discretionary approvals, where such actions or conditions are the direct result of findings by the City that those actions are necessary to avoid consequences which are injurious or detrimental to the public health and safety. This reservation of authority is subject to the following: a. City shall neither (i) refuse to issue or approve any application or permit nor (ii) apply to the Project or the Property any conditions or Future General Regulations if such action would prevent, preclude, delay, alter, or in any way affect (in a manner not satisfactory to Owner) the implementation of all or any portion of the Development Plan until the City Council makes a finding that such action is the only feasible means to correct or avoid such injurious or detrimental consequence. b. Any such action taken pursuant to this Section shall apply only to the extent, and for the duration, necessary to correct, avoid or mitigate such injurious or detrimental consequence condition. 3.6 Environmental Remediation. Certain portion(s) of the Property will require environmental remediation before occupancy. Subject to all other provisions of this Agreement, occupancy permits shall be issued by the City for those portions of the Property if Ford Land has complied with Mitigation Measures 4, 5, and 6 set forth in Section 3.10 (Public Health and Safety) of the EIR and the environmental remediations in Exhibit C. 4. BENEFITS TO FORD LAND. 4.1 Right to Develop. During the term of this Agreement and subject to the provisions of Sections 3 and 5, Ford Land shall have a vested right to develop, and receive occupancy 071495 / F31331 -M / 15774.16 7 permits for construction on, the Property to the full extent permitted by the Development Plan, including grading of the site as contemplated by the elevations shown on the Tentative Map, all subject to: (a) Compliance with CEQA; (b) Compliance with the terms and conditions of this Agreement; (c) Compliance with the City's grading ordinance in effect on the Approval Date; and (d) Compliance with conditions imposed on any subdivision map submitted by Ford Land subsequent to the Effective Date, provided that the City may only impose subdivision map conditions which are: (i) Necessary to mitigate any significant adverse impact not identified in the EIR; (ii) Necessary to ensure compliance with the subdivision design and improvement standards of the City in effect on the Approval Date; or (iii) Necessary to make the findings required by the Subdivision Map Act. Subject to the provisions of this subsection and Sections 3 and 5, City shall only take action which complies with and is consistent with the Development Plan and this Agreement unless Ford Land otherwise consents in writing. City shall not impose any condition or requirement (whether in the form of a fee, tax, requirement for dedication or reservation of land, or any other type of exaction) on the Project, except as expressly permitted by this Agreement or required (as opposed to permitted) by state or federal law. 4.2 Conflicting Measures. Except as expressly provided in this Agreement, no initiative measure, moratorium, referendum (except as provided in Government Code Section 65857.5), ordinance, statute or other provision of law which in any way limits or restricts development of the Property to the full extent permitted by the Development Plan and this Agreement (including density, intensity, timing, phasing, and sequencing) shall be applied to the Property during the term of this Agreement. 4.3 Reservations or Dedications of Land. Except as expressly provided in this Agreement, no dedications or reservations of the Property shall be required of Ford Land in conjunction with the application or issuance of any permit authorizing development, construction, use, or operation of the Property. 4.4 TCA Credit. As a result of the reduction in traffic impacts generated by converting the Project site to less intense uses than presently exist, the Transportation Corridor Agencies (the "TCA") have acknowledged a credit to Ford Land in the amount of $3,436,966 in relation 071495 / F31331 -M / 15774.16 8 to the construction of the San Joaquin Hills Transportation Corridor (SJHTC). This credit shall be applied toward any Project fees otherwise payable to the City and/or the TCA in connection with the construction of the SJHTC or any other transportation corridor for which fees are imposed upon development. If this credit is larger than the Project's SJHTC corridor fee obligation and Ford Land and the TCA enter into an agreement to allow Ford Land to sell or transfer any credits in excess of the Project's SJHTC fee obligation, the City shall not object to the sale or transfer of the credits on the terms set forth in that Ford Land/TCA agreement. 4.5 Fair Share Ordinance. As a result of the reduction in traffic impacts generated by the Project and the traffic improvements included within the Project, no fees shall be payable for the Project under the City's Fair Share Traffic Contribution Ordinance. 4.6 Sewer Connection. The City shall provide sewer service to the Project through a connection to existing City sewer lines serving the adjacent Belcourt communities and the existing Loral site. City shall provide sewer facilities only to the boundaries of the Project and Ford Land shall pay any sewer connection or sewer service fees required by the Existing General Regulations. 4.7 Storm Drains. The City shall provide drainage capacity to the Project by allowing connection to existing City storm drains. 4.8 Park Fees. Ford Land shall comply with all City park dedication and park in lieu fee requirements through the payment of park fees in the amount of $6,897.37 per residential unit. Ford Land shall advance Five Hundred Thousand Dollars ($500,000) in park fees to the City within sixty days after the Effective Date. The fees paid in advance shall be credited toward, and satisfy park fees for, the first seventy-three residential building permits issued for the Project. Thereafter, Ford Land shall pay $6897.37 per residential unit until all park fees required by this Agreement have been paid. These payments shall satisfy the City's Park Dedication Ordinance. No dedications or reservations of land except as expressly identified in the Development Plan shall be required of the Project. 4.9 Time for Construction and Completion of Project. Subject to the provisions of this Agreement and the Development Plan, Ford Land shall have the right to decide the timing, phasing, and sequencing of construction on the Property and shall be entitled to apply for, and receive timely approval of, permits or approvals at any time. 4.10 Extension of Tentative Map. To the extent permitted by law, the City shall extend through the term of this Agreement (pursuant to Government Code Section 66452.6) the Tentative Map (see Section 2.33 above) and all tentative subdivision maps applied for by Ford Land and approved by the City in the future. 071495 / F31331 -OW / 15774.16 9 4.11 Phased Final Mans. Ford Land or any successor may file as many as forty phased final maps for each tentative tract map approved for the Project. 4.12 Development Standards. The PC Text has been adopted by City Resolution No. 95-89. Because this Development Plan has been prepared to meet the unique design parameters of this Project, the City Council has determined that rigid consistency with the City's development standards for other areas of the City is neither necessary nor appropriate. Therefore, as to this Project, the provisions of the Development Plan and this Agreement shall prevail over any conflicting provision of any other City ordinance or resolution. 4.13 Fees, Taxes, and Assessments. The City shall not impose any additional fee, tax, or assessment on all or any portion of the Project or the Property, whether as a condition to a Future General Regulation or otherwise, except such fees, taxes, and assessments as are described in or required by this Agreement. Ford Land shall be responsible only for those fees, taxes, and assessments which presently are applicable to the Property under the General Regulations in effect on the Approval Date. Except as set forth in Section 4.8 above, the rates of such fees, taxes, and assessments shall be the rates in existence at the time said fees, taxes, and assessments are normally required to be paid to the City. 5. PUBLIC BENEFITS. 5.1 Reduced Impacts. This Agreement confers a substantial public benefit by converting an existing commercial/industrial use to a less intense residential use. The EIR for the Project has established specific improvement in environmental conditions related to reduced potential for impacts arising from traffic, air pollution, the consumption of non-renewable energy resources, the potential for groundwater pollution, and noise. 5.2 Fiscal Benefits. The project's Fiscal Impact Report projects that, at maximum Project buildout, the City will receive net recurring revenues of approximately $571,700 per year in constant 1995 dollars. The recurring surplus is based on projected annual Project revenues of $963,600 and projected annual costs of $391,000. 5.3 Affordable Housing. The City's Housing Element presently sets forth goals and strategies for providing housing units for very low, low, and moderate income families and individuals ("Affordable Units"). The Housing Element requires residential developers to provide affordable units, either on-site or off-site, with the range of affordability and the number of units contingent upon numerous factors including the presence or absence of development incentives, the extent of any financial contribution to the development by public entities, and the overall feasibility of providing affordable housing given the unique characteristics of the project. The Housing Element specifically encourages the use of development agreements and expedited permitting to encourage the construction and occupancy of affordable housing 071495 / F3133I-M / 15774.16 10 projects. The City and Ford Land agree that this development presents a unique opportunity, possibly in combination with one or more other land owners having affordable housing obligations to construct affordable housing on vacant land within the City using a unique public/private planning and financing process outlined in this Section: a. Affordable Housing Percentage. The Housing Element requires a project such as this to provide a number of affordable units ranging between 15 % and 25 % of the residential units constructed by the landowner to the extent feasible. These units are to remain affordable for a minimum of twenty years. The City and Ford Land agree that the cost and delay attendant to environmental remediation of the Property, Ford Land's agreement to advance park fees, and the other public benefits provided by Ford Land under this Agreement make infeasible the production of affordable housing in excess of 15% of the total number of residential units constructed pursuant to the Development Plan. b. Task Team Participation / In Lieu Fees. Ford Land shall satisfy its affordable housing requirements by participating in a "Task Team" to be established by resolution of the City Council. The primary duties of the Task Team will be to identify, evaluate, and implement one or more affordable housing projects to satisfy Ford Land's affordable housing obligations pursuant to the Housing Element and this Agreement. The Task Team shall consist, at a minimum, of a member of the City Council, a representative of Ford Land, and members of the City staff. The City Council also may appoint to the Task Team representatives of other property owners, builders, or persons experienced in the development of affordable housing. Ford Land shall make available to the Task Team its experience and expertise in land development upon reasonable request by the Task Team. The Task Team shall submit to the City Council a statement of goals and priorities within ninety days after the later of (i) the Effective Date or (ii) the appointment of the Task Team by the City Council. The Task Team shall have a single term of two years, unless extended by mutual agreement of the City and Ford Land. The Task Team shall report to the City Council no less than once every ninety days after submittal of its statement of goals and priorities. The goal of the Task Team shall be to submit to the City Council, within two years after the Effective Date, a report identifying one or more affordable housing projects to be funded in whole or in part by Ford Land. If a project is identified and implemented, Ford Land shall contribute $2,500,000 (less $5,000 for each of the 500 units allowed by the Development Plan which Ford Land agrees, in writing, not to build) toward the implementation of that project. Subject to Ford Land's ongoing participation in Task Team implementation efforts, payment of this sum will satisfy Ford Land's affordable housing obligations. 071495 / F31331-002/ 15774.16 11 C. Option If No Task Team Project. If either (i) the City Council does not require Ford Land to financially contribute to implementation of a Task Team project as described in Subparagraph b above or (ii) the Task Team does not recommend implementation of an affordable housing project to satisfy Ford Land's affordable housing requirement, then Ford Land shall have the option, within sixty days after the term of the Task Team expires, to satisfy that requirement by notifying the City that it will either: construct or rehabilitate off-site residential units within the City and make those units affordable to moderate income families or individuals for 20 years or more from the date of occupancy; or ii. pay an affordable housing in lieu fee of $5,500 for each residential building permit issued within the Project; or iii. construct fewer than the number of affordable units required under Subsection c(i) above and pay an affordable housing in lieu fee equal to: • $5,500 for every residential building permit issued for the Project manus • $36,000 multiplied by the number of affordable units constructed and/or refurbished by Ford Land. Under this option (iii), Ford Land's affordable housing in lieu fee shall not be less than twenty percent of Ford Land's total maximum financial commitment pursuant to option (ii). 5.4 Environmental Monitoring. Due to existing soil and groundwater contamination on the Project site, before City will authorize occupancy of any residential structure on the property, Ford Land is required by law, as well as by the City's conditions and mitigation measures for the Project, to obtain approvals from other public agencies, such as the Regional Water Quality Control Board and the Orange County Health Care Agency ("County Health"). By this Agreement, Ford Land also will pay for the cost of an environmental monitor to be retained by the City to review all Ford Land submittal to those agencies. Ford Land shall provide the monitor with copies of all submittal concurrently with their delivery to those agencies. Additionally, Ford Land shall, if requested by the monitor, provide to the City the underlying data which supports Ford Land's request to County Health for a Health Risk Assessment of 071495 / F31331 -M / 15774.16 12 the Project site. The City may have either the monitor or another consultant review and independently verify the accuracy and validity of the Health Risk Assessment and related analysis and conclusions. City may advise County Health, in writing and prior to any final action by that agency, of any material or potentially significant effort or apparent error, and the Health Risk Assessment or any related analysis or conclusion. The monitor shall not perform any independent collection of data. The monitor performing this function may be the same as, or may be different than, the monitor performing the general overview described in the first paragraph above. In performing either function, the monitor may report his or her findings to the City Council and the City Council may, in turn, take any action it deems appropriate which is not inconsistent with this Agreement. The selection of the monitor and the data consultant and their scope of work shall be subject to the mutual approval of the City and Ford Land. The provisions of this Section are intended, and shall be construed, to supplement mitigation measures imposed by the City Council relative to site remediation as specified in Exhibit C and, in the event of any inconsistency between the provisions of this Section and Project mitigation measures, the mitigation measure shall control. 5.5 Eastbluff Traffic. The Eastbluff community in the vicinity of the Project site has had a historical concern regarding the impact of through traffic on its streets. The EIR has concluded that the Project will not contribute sufficient through traffic to constitute a significant impact on this existing problem. Further, Ford Land has no legal obligation to correct the existing problem and the City has no authority independent of this Agreement to impose a condition requiring Ford Land to correct the existing problem. Pursuant to this Agreement, however, Ford Land shall contribute to the solution to the existing traffic problem as follows: a. The determination of a solution shall be dependent upon an agreement between the Eastbluff community and the City. b. If the "solution" costs $50,000 or less: i. Ford Land will pay one -hundred percent of the total cost of the capital improvements/traffic studies (as opposed to long-term maintenance) of the solution as actually implemented; or If the "solution" costs more than $50,000: i. Ford Land will pay one-third of the total cost of the capital improvements/traffic studies as actually implemented, with a minimum payment of $50,000 and a maximum payment of $75,000. 071495 / F31331-002 / 15774.16 13 C. Ford Land will not be required to make a deposit of funds until a "solution" actually is approved by the City for implementation. Any funds actually deposited but not used to implement the solution shall be returned to Ford Land. d. If the City and the Eastbluff community have not agreed on a "solution" within one year from the Effective Date, this obligation shall terminate. e. If a lawsuit is brought by any person or entity challenging any of the Ford Land approvals on the basis of the Eastbluff traffic conditions and that lawsuit is not terminated within thirty days after service, the provision requiring Ford Land's contribution to the traffic solution will terminate. 5.6 Drainage. Concerns have been expressed in the public process regarding the impacts of the Project's drainage on nearby residential communities. The EIR has established that the Project will not have any significant drainage impacts on any other residential communities. Nonetheless, pursuant to this Agreement Ford Land will take the following actions: a. Upon formation of the Master Community Association, the conditions, covenants, and restrictions will provide that: All structures shall have gutters and downspouts; ii. The Master Association shall routinely maintain the on-site storm drain system to facilitate proper operation of the system; and iii. The submittal of landscape plans for each individual lot shall provide that water from downspouts will be transported to the street through an appropriate collection system. b. The Project site will be graded so that surface drainage will flow to the streets where it will be collected and channeled into a closed storm drain system. 5.7 Belcourt Terrace Landscape Screen. A landscape screen shall be provided along the boundary of the property and the Belcourt Terrace project adjacent to the Hillsdale Drive boundary wall. Ford land shall plant additional trees to supplement the screening provided by existing trees that Ford Land will preserve subsequent to development. The design details for the landscape screen, including the size, species and spacing of trees as well as appropriate conditions, covenants and restrictions to facilitate the long term maintenance of the landscape screen by individual lot owners will be reviewed and approved as part of the "B Map" tentative tract map approval process. City shall notify all property owners on Hillsdale Drive prior to the public hearing on any tentative tract map submitted for this portion of the property. 071495 / F31331-002 / 15774.16 14 6. ANNUAL REVIEW. 6.1 City and Ford Land Responsibilities. At least every twelve (12) months during the Term, the City shall review Ford Land's good faith substantial compliance with this Agreement (the "Annual Review"). After the Annual Review, the City's finding of good faith compliance by Ford Land shall be conclusive for the purposes of future Annual Reviews or legal action between the Parties unless the City is unaware of substantial evidence of non-compliance and could not have discovered the evidence through the exercise of reasonable diligence. Either Party may address any requirements of the Agreement during the Annual Review. However, fifteen (15) days' written Notice of any requirement to be addressed shall be made by the requesting Party. If, at the time of the review, an issue not previously identified in writing is required to be addressed, the review shall be continued for no more than sixty days at the request of either Party to afford sufficient time for analysis and preparation of a response. 6.2 Opportunity to be Heard. Ford Land shall be permitted an opportunity to be heard orally and in writing at any noticed public hearing or meeting related to the Annual Review. 6.3 Information to be Provided to Ford Land. The City shall mail to Ford Land a copy of the staff report and related exhibits concerning Agreement performance a minimum of fifteen (15) days before the Annual Review. 6.4 Mitigation Monitoring. The Annual Review shall include an analysis of compliance with the various conditions and mitigation measures contained within the mitigation monitoring plan. Ford Land shall be found in compliance with this Agreement unless the City Council determines, based upon the evidence presented at the Annual Review, that Ford Land has not complied with one or more mitigation measures or conditions (including those imposed as a result of subsequent environmental analysis) applicable to the grading of, and building on, the Property as of the date of the Annual Review. 6.5 Review Letter. a. After Finding of Compliance. If Ford Land is found to be in compliance with the Agreement after the Annual Review, the City shall issue, within ten (10) days of Ford Land's written request, a letter to Ford Land stating that the Agreement remains in effect and Ford Land is not in Default. b. After Cure of Default. If Ford Land is found to be in Default under this Agreement at the Annual Review, but subsequently cures that default in the manner provided by this Agreement, the City shall issue, within ten (10) days of Ford Land's written request, a letter to Ford Land stating that the Agreement remains in effect and Ford Land is not in Default. 071495 / F31331-002 / 15774.16 15 6.6 Estoppel Certificate. Either Party may at any time deliver written Notice to the other Party requesting an estoppel certificate (the "Estoppel Certificate") stating: (a) The Agreement is in full force and effect and is a binding obligation of the Parties. (b) The Agreement has not been amended or modified either orally or in writing or, if so amended, identifying the amendments. (c) To the best of the signing Party's knowledge, no Default in the performance of the requesting Party's obligations under the Agreement exists or, if a Default does exist, the nature and amount of any Default. A Party receiving a request for an Estoppel Certificate shall provide a signed certificate to the requesting Party within thirty (30) days after receipt of the request. The Planning Director may sign Estoppel Certificates on behalf of the City. An Estoppel Certificate may be relied on by assignees and Mortgagees. The Estoppel Certificate shall be substantially in the same form as Exhibit "D." 6.7 Failure to Conduct Annual Review. The City's failure to conduct an Annual Review shall not constitute or be asserted by the City as Ford Land's Default. 7. GENERAL PROVISIONS. 7.1 Effective Date. This Agreement and the obligations of the Parties shall be effective as of the Effective Date. However, this Agreement shall bind the Parties as of the Approval Date, subject only to the Adopting Ordinance becoming effective pursuant to California law. 7.2 Term of Agreement. The term of this Agreement (the "Term") shall begin on the Effective Date and continue for twenty-five (25) years unless otherwise terminated or modified pursuant to this Agreement. 7.3 Assignment. Ford Land has the absolute right to assign (see Section 2.5) its rights and/or delegate its obligations under this Agreement as part of an assignment of all or a portion of the Property. Any assignment shall be subject to the provisions of this Agreement. As long as Ford Land owns any part of the Property, Ford Land may assign the benefits of this Agreement without delegating the obligations for the portion of the Property assigned. If that occurs, however, the benefits assigned shall remain subject to the performance by Ford Land of the corresponding obligations. Where an assignment includes the delegation of the corresponding obligations, those obligations become solely the obligations of the assignee. If an assignee is in Default, then 071495 / F31331-002 / 15774.16 16 as to Ford Land or any assignees not in Default, the Default shall not constitute their Default, give grounds for termination of their rights under this Agreement or be a basis for an enforcement action against them. Under no circumstances, shall Ford Land be relieved of its obligations under Sections 5.3, 5.4, 5.5, 5.6 and 5.7. 7.4 Amendment of Agreement. (a) Subject to the provisions of Subsection (b), this Agreement may be amended from time to time by the mutual consent of the Parties, or their successors in interest, but only in the manner provided by the Government Code and this Agreement. After any amendment, the term "Agreement" shall refer to the amended Agreement. (b) The City Council shall not approve, and Ford Land shall not request, any amendment to the provisions of the Development Plan or this Agreement that would increase the maximum permitted gross floor area or the maximum permitted building height above that established as of the Effective Date of this Agreement. This Subsection shall prevail over any conflicting ordinance, resolution, policy or plan adopted by the City Council. 7.5 Enforcement. This Agreement is enforceable by each of the Parties and their respective successors and assigns. 7.6 Termination. This Agreement shall be deemed terminated and of no further effect upon the occurrence of any of the following events: (a) Expiration of the twenty-five (25) year term; (b) Completion of the Project in accordance with the Development Plan and the City's issuance of all occupancy permits necessary to fully implement the Project, the acceptance of all dedications required by this Agreement, and the satisfaction by Ford Land of its obligations under Sections 5.3, 5.4, 5.5, 5.6, and 5.7 above. (c) Entry, after all appeals have been exhausted, of a final judgment or issuance of a final order directing the City to set aside, withdraw, or abrogate the City's approval of this Agreement or any material part of the Project; or, (d) The effective date of a Party's election to terminate the Agreement as provided in Section 9.3 of this Agreement. 071495 / F31331-002 / 15774.16 17 8. CONFLICTS OF LAW. 8.1 Conflict with State and Federal Laws and Re ulg ations. Where state or federal laws or regulations prevent compliance with one or more provisions of this Agreement, those provisions shall be modified, through revision or suspension, to the extent necessary to comply with such state or federal laws or regulations and the modified Agreement shall remain in effect, subject to the following: (a) the City shall not request modification of this Agreement pursuant to this provision unless and until the City Council makes a finding that such modification is required (as opposed to permitted) by state and federal laws or regulations; (b) the modifications must be limited to those required (as opposed to permitted) by the state or federal laws; (c) the modified Agreement must be consistent with the state or federal laws or regulations required modification or suspension; (d) the intended material benefits of this Agreement must still be received by each of the Parties after modification; (e) neither the modification nor any applicable local, state, or federal laws or regulations, may render the modified Agreement impractical to enforce; and (f) Ford Land consents in writing to the modification. Ford Land shall have the right to seek judicial review of any proposed modification to ensure compliance with this Section. 9. DEFAULT, REMEDIES AND TERMINATION. 9.1 General Provisions. In the event of a Default (see Section 2.11), the Party alleging a Default shall give the other Party a written Notice of Default. The Notice of Default shall specify the nature of the alleged Default, and a reasonable manner and sufficient period of time (not less than thirty (30) days) in which the Default must be cured (the "Cure Period"). During the Cure Period, the Party charged shall not be considered in Default for the purposes of termination of the Agreement or institution of legal proceedings. If the alleged Default is cured within the Cure Period, then a Default shall be deemed not to exist. 9.2 Option to Institute Legal Proceedings or to Terminate. If an alleged Default is not cured within the Cure Period, the noticing Party must give the defaulting Party a Notice of intent 071495 / F31331-002 1 15774.16 18 to terminate the Agreement if that Party intends to terminate the Agreement. Within thirty (30) days after giving of the Notice, the City Council shall hold a public hearing in the manner set forth in Government Code Sections 65865,65867, and 65868, as amended, to consider and review the matter. This hearing shall utilize the procedures outlined for the Annual Review in Section 6 above. The City Council may preside over the hearing or may appoint a hearing officer to take evidence and submit findings and recommendations to the City Council. 9.3 Notice of Termination. After the City Council hearing described in Section 9.2, the Party alleging the Default, at its option, may give written Notice of termination of the Agreement to the other Party and the Agreement shall be terminated immediately upon giving the Notice. A termination shall be valid only if good cause exists and a preponderance of the evidence presented to the City Council established the continued existence of a Default after the Cure Period. The findings of the City Council as to the existence of a Default shall have no weight in any legal proceeding brought to determine the existence of a Default. The validity of any termination may be challenged pursuant to Section 11. 17, in which case the court shall render an independent judgment as to the existence of a Default and good cause for termination. Termination may result only from a material Default of a material provision of this Agreement. 9.4 Waiver. Failure or delay in giving Notice of Default shall not waive a Party's right to give future Notice of the same or any other Default. 9.5 Default by Ford Land. In the event of a termination of this Agreement pursuant to Sections 9.1 through 9.3 because of a Default by Ford Land, the City shall have no obligation to perform any of City's obligations under this Agreement, City's obligations pursuant to the Development Plan and general regulations shall be unaffected by any Ford Land Default pursuant to this Agreement unless the Default also constitutes a violation of any of the conditions specified in Exhibit C. The City's election not to perform as permitted by this provision shall not constitute a Default. 9.6 Default by the City. In the event of a termination of this Agreement pursuant to Sections 9.1 through 9.3 because of a Default by City, Ford Land shall have no obligation to perform any of Ford Land's obligations under this Agreement, unless otherwise ordered by a court of law. Ford Land's election not to perform as permitted by this provision shall not constitute a Default. 9.7 Specific Performance. The Parties agree that the loss by either of them of their respective rights under this Agreement may not be compensable through monetary damages. Therefore, the remedy for a Default for each Party shall be limited to specific performance and/or injunctive relief. This provision applies only to actions related to the Parties' performance 071495 / F31331-002 / 15774.16 19 under this Agreement and does not limit the remedies of either Party under any other provision of law. 10. ENCUMBRANCES AND RELEASES ON PROPERTY. 10.1 Discretion to Encumber. Ford Land may encumber all or any portion of the Property in any manner. The City acknowledges that lenders providing financing may require technical modifications to the Agreement which do not materially alter the intent of the Parties. The City agrees to meet, upon request, with Ford Land and/or lenders to negotiate in good faith any lender request for modification. The City agrees to not withhold unreasonably its consent to such modification, provided the proposed modification does not materially alter the terms and provisions of this Agreement, the obligations imposed upon either Party, or the benefits received by either Party. 10.2 Entitlement to Written Notice of Default. Any Mortgagee and its successors and assigns, upon written request to the City, shall be entitled to receive from the City written Notice of any Ford Land Default at the same time Ford Land is provided with Notice pursuant to Section 6.1. 11. MISCELLANEOUS PROVISIONS. 11.1 Notices. All Notices (see Section 2.27) shall be written and delivered by personal delivery (including Federal Express and other commercial express delivery services providing acknowledgments or receipt), registered, certified, or express mail, or telegram to the addresses set forth below. Receipt shall be deemed complete as follows: (a) For personal delivery, upon actual receipt; (b) For registered, certified, or express mail, upon the delivery date or attempted delivery date as shown on the return receipt; and Notices shall be addressed as follows: To the City: City Manager City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92660 Attention: City Attorney Attention: Planning Director 071495 / F31331-002 / 15774.16 20 To Ford Land: Ford Motor Land Services Corporation 341-A E. Capitol Avenue, Suite 200 Milpitas, CA 95035 Attention: VP/Western Region Attention: Development Manager With a copy to: Tim Paone Paone, Callahan, McHolm & Winton 19100 Von Karman, 8th Floor P.O. Box 19613 Irvine, CA 92713-9613 The addresses to which Notices shall be sent may be changed by giving Notice of a new address. 11.2 Enforced Delay Extension of Time of Performance. Neither Party shall be deemed to be in Default where delays or non-performance are due to war, insurrection, strikes, walkouts, riots, floods, earthquakes, fires, oil spills, casualties, acts of nature, unavailability of materials, governmental restrictions imposed or mandated by governmental entities, suspension of rights in accordance with the existence of unforeseen circumstances, litigation, or similar bases for excused performance. An extension of time for performance shall be deemed granted for the period of the delay, or longer as may be mutually agreed upon. 11.3 Severability. If any material part of the Agreement is found by a court to be invalid, void, or illegal, the Parties shall modify the Agreement to implement the original intent of the Parties. These steps may include the waiver by either of the Parties of their right under the unenforceable provision. If, however, the Agreement objectively cannot be modified to implement the original intent of the Parties and the Party substantially benefitted by the material provision does not waive its rights under the unenforceable provision, the entire Agreement shall become void. For purposes of this Section, and without excluding the possible materiality of other provisions of this Agreement, all provisions of Section 4 and 5 are deemed "material." 11.4 Entire Agreement. This Agreement constitutes the entire understanding and Agreement of the Parties regarding the subject matter of this Agreement. This Agreement supersedes all negotiations and previous agreements between the Parties regarding that subject matter. 11.5 Waivers. All waivers of the provisions of this Agreement must be in writing and signed by the Party making the waiver. 071495 / F31331-002 / 15774.16 21 11.6 Incorporation of Recitals. The Recitals set forth in Section 1 are part of this Agreement. 11.7 Covenant of Good Faith and Fair Dealing. Neither Party shall do anything which shall have the effect of harming or injuring the right of the other Party to receive the benefits of this Agreement. 11.8 Covenant of Cooperation. The City shall help Ford Land obtain any permits from either the City or other public agencies which may be required for development of the Project or as a result of any modifications, suspensions, or alternate courses of action allowed by this Agreement. Ford Land may challenge any such ordinance, measure, moratorium, or other limitation in a court of law if it becomes necessary to protect the development rights vested in the Property pursuant to this Agreement. 11.9 Further Actions and Instruments. Upon the request of either Party, the other Party shall promptly execute, with acknowledgment or affidavit if reasonably required, and file or record such required instruments and writings and take any actions as may be reasonably necessary under the terms of this Agreement or to evidence or consummate the transactions contemplated by this Agreement. 11.10 Successors and Assigns. Subject to Section 7.3 above, the burdens of this Agreement shall be binding upon, and the benefits of the Agreement inure to, all successors -in -interest and assigns of the Parties. 11.11 Construction of Agreement. All language in all parts of this Agreement shall be construed as a whole and given its fair meaning. The captions of the paragraphs and subparagraphs are for convenience only and shall not be considered or referred to in resolving questions of construction. This Agreement shall be governed by the laws of the State of California. This Agreement is not intended to impermissibly contract away the legislative and governmental functions of the City, and in particular, the City's police powers or to surrender or abrogate the City's governmental powers over the Property. 11.12 Authority to Execute. The person executing this Agreement on behalf of Ford Land warrants and represents that he/she has the authority to do so and the authority to bind Ford Land to the performance of Ford Land's obligations under this Agreement. 11.13 Consent. Any consent required by the Parties in carrying out the terms of this Agreement shall not unreasonably be withheld. 11.14 Effect on Title. This Agreement shall not continue as an encumbrance against any portion of the Property as to which this Agreement has terminated. 071495 / F31331 -M / 15774.16 22 11.15 Recording. The City Clerk shall cause a copy of this Agreement to be executed by the City and recorded in the Official Records of Orange County no later than ten (10) days after the Effective Date. The recordation of this Agreement is deemed a ministerial act and the failure of the City to record the Agreement as required by this Section and Government Code Section 65868.5 does not make the Agreement void or ineffective. 11.16 Institution of Legal Action. In addition to any other rights or remedies, either Party may institute legal action to cure, correct, or remedy any Default, to enforce any provision of this Agreement, to enjoin any threatened or attempted violation of this Agreement, to recover damages for any Default, or to obtain any remedies consistent with the purpose of this Agreement. Legal actions shall be instituted in the Superior Court of the County of Orange, State of California, or in the Federal District Court in the Central District of California. 11.17 Attorneys' Fees. In any arbitration, quasi-judicial, administrative, or judicial proceeding between the Parties initiated with respect to this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and all costs, expenses, and disbursements in connection with such action. 11.18 No Third Party Beneficiaries. There are no third party beneficiaries to this Agreement or to any provision of this Agreement, including the public benefit provisions of Section 5. Date: 1995 Date: 1995 STATE OF MICHIGAN CITY OF NEWPORT BEACH By: , \- -�k —.1 )- yor Ford Motor Land Development Corporation By: ss. COUNTY OF WAYNE ) The foregoing instrument was acknowledged before me this 1G day of gj\ag\forddev.719 August, 1995 by R. G. Jackson, President of Ford Motor Land Development Corporation, a Delaware corporation,o alf of t corp rat' 071495 / F31331-002 / 15774.16 otary Pub lc 23 I'ATRICIA A WATSON NOTARY PUBLIC STATE OF MICFIIGAN WAYNE COUNTY my, MMI SI9N EXP. APR. 19,1998 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of , a County of �nct On 5i .y5 s before me, 6,A -c, 'AA k Q ()nALv. lelA[xlU. P_L t_ .c_ DATE N , TITLE OF OFFICER -E.G.,'JANE DOE. NOWRY PUBLIC' personally appeared , N NAME(S) OF SIGNER(S) personally known to me - OR - ORP'IOI/d.8EAl r, VRMA A. VARIN NOTARY PtJ" - CALIFORNIA N COMMISSION N 988097 C ORANGE COUNTY My Commission Exp July 24, 1997 ❑ proved to me on the basis of satisfactory evidence to be the person(s) whose nameW is/eTesubscribed to the within instrument and acknowledged to me that he/sls/leq executed the same in his/heffheir- authorized capacity(iee4, and that by his/494fael signature(a)-on the instrument the persoros , or the entity upon behalf of which the person(a),acted, executed the instrument, WITNESS my hand and official seal, SIGNATURE OF NOTARY — OPTIONAL SECTION — CAPACITY CLAIMED BY SIGNER Though statute does not require the notary to fill in the data below, doing so may prove invaluable to persons relying on the document. ❑ INDIVIDUAL ❑ CORPORATE OFFICER(S) SIGNER IS REPRESENTING: NAME OF PERSON(S) OR ENTITY(IES) r 111 q A % �:PQ Oki a r, -C—L OPTIONAL SECTION THIS CERTIFICATE MUST BE ATTACHED TO ,, p Ql ���51 p ��t,� i� Tr TITLE OR TYPE OF DOCUMENT 1 y�.�. Q o, 1 Q g �� THE DOCUMENT DESCRIBED AT RIGHT: NUMBER OF PAGES 3 9 DATE O DOCUMENT S Though the data requested here is not required by law, it could prevent fraudulent reattachment of this form. SIGNERS) OTHER THAN NAMED ABOVE TITLE(S) ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL ❑ ATTORNEY-IN-FACT ❑ TRUSTEE(S) ❑ GUARDIAN/CONSERVATOR SIGNER IS REPRESENTING: NAME OF PERSON(S) OR ENTITY(IES) r 111 q A % �:PQ Oki a r, -C—L OPTIONAL SECTION THIS CERTIFICATE MUST BE ATTACHED TO ,, p Ql ���51 p ��t,� i� Tr TITLE OR TYPE OF DOCUMENT 1 y�.�. Q o, 1 Q g �� THE DOCUMENT DESCRIBED AT RIGHT: NUMBER OF PAGES 3 9 DATE O DOCUMENT S Though the data requested here is not required by law, it could prevent fraudulent reattachment of this form. SIGNERS) OTHER THAN NAMED ABOVE EXHIBIT "A" Legal Description of the Property Parcel 4 of Parcel Map 79-717, as shown on Map Recorded in Book 140, Pages 1 through 6 of Parcel Maps, County of Orange, State of California. 071995 / F31331-002 / 36069.1 _ swaiyM .:*''rte'}*':'.: �tAMA- ...� •q �e►4 •% i 1r - �, S `=.. FA. � �•., t'�y�{��� ✓ t w '•� '"`.'ia�: ``' i . �.. � �r. � 1 �,Y�i(MIP�1�f! 2 C ' 7 , 7• t*-���-� � .�1 't Viol ir of - �. ., � •.��` :fit i �t.-� r ,�' k .� a ,�(((ttts,'!•�.��.` f TT, 1....`x:: �i�'.� a x • ctl� 7 � • t - �F' • . a � � •..lam n w. • w:7.�.. -+7 _ •' _ d� � , ht � : iit Y i�� !fir (( '� •'. `-�'�i.�. s '^�•.. s 7• .lM. �t �• 1. •`�, j» �� � S• ` * + �` a� � T + t., "`"''ia.4Kyxt ilt ..-- "`"y `.. '"-ii�� ` �� �+ • -�' t'� •-•%y,yv!}.;.0 r _gq�`rt...�w�.��,' .4� 1i.4 -I t� tie Ic „�' f,. t + + _'1'Vw ?�,i •. ,• �� y.'. ' • • ��,�L.�y�'N i�lM*.`. .i h�R��..t : � � �'� a' �.. � rr ?.' ` c , t � �• •� •• �• i 'see •+ ���-��ll� _.N. .*� � 7 � i - /f �' ( �.- �� J .- ,.+: •� � sir-"} y�� '! IL dir e` •r Z� • e(� " ��X•4Fti a _. Rl 16 EXHIBIT ". C" Approved by the Planning Commission 6/8/95 Approved by the City Council 7/10/95 FINDINGS AND CONDITIONS FOR APPROVAL ENVIRONMENTAL IMPACT REPORT NO. 153 GENERAL PLAN AMENDMENT 93-2(A) AMENDMENT NO. 800 DEVELOPMENT AGREEMENT NO. 8 TENTATIVE MAP OF TRACT NO. 14925 (Ford Land/Newport) A Environmental Impact Report No. 153 Findings: That an Environmental Impact Report has been prepared for the project in compliance with the California Environmental Quality Act (CEQA), the State CEQA Guidelines and City Policy. 2. That the proposed Final EIR, which includes the Draft EK Comments and Responses, revisions to the Draft EIR, and all related documents in the record is complete and adequate to satisfy all the requirements of CEQA for the proposed project. 3. That the analysis and conclusions contained in the proposed Final EIR reflect the independent judgment of the Planning Commission. 4. That the Planning Commission has reviewed and considered the information contained in the proposed Final EIR prior to making its recommendations to the City Council. Mitigation Measures: Short -Term Impacts from Demolition and Construction -related Activities. (See Sub -section 3.3.3.1.1 in Impact Analysis) 1. Soil disturbance shall be halted when winds in excess of 25 mph make dust control impractical. 2. To minimize emissions by reducing interference of construction traffic with regional non - project traffic movement, the following measures shall be implemented where possible: Scheduling receipt of construction materials to non -peak travel periods. Exhibit A - Final Findings and Conditions GPA 93-2(AYA 800n -TM 14925/DA 8 Page 1 • Routing construction traffic through areas of least impact sensitivity. • Providing ride -share incentives for contractors and subcontractor personnel. 3. To avoid spill-over impacts on neighboring roadways, construction vehicles shall be hosed down before entering public roadways from any dirt road project areas, or shall be limited to exiting the site from only paved roads. 4. The project access to public roadways shall be washed/swept at regular intervals to minimize dirt impacts on neighboring roadways. 5. Emissions from on-site construction equipment shall be controlled through a routine mandatory maintenance program. Demolition and Construction -related Noise (see Sub -section 3.4.3.1.1 in Impact Analysis) A note stating these requirements shall be placed on all demolition, grading and construction plans: 6. No stationary construction equipment shall be permitted to operate in a manner that results in either: a. An exterior noise level greater than 55 dBA Leq (daytime) or 50 dBA (nighttime) at the property line of any occupied residence; or b. An interior noise level greater than 45 dBA Leq in any occupied residence. 7. Prior to the issuance of any demolition, grading or building permits the project applicant shall demonstrate that all construction staging shall be performed on-site as far as feasible from occupied dwelling. Remediation Equipment Noise (see Sub -section 3.4.3.1.2 in Impact Analysis) 8. Prior to issuance of any building permit for remediation equipment, the applicant shall submit to the Building Department a report prepared by a licensed acoustical engineer certifying that operation of the equipment will not cause an increase in ambient noise of greater than 1 dBA nor exceed an exterior noise level of 55 dBA Leq (daytime) or 50 dBA Leq (right time), or an interior level of 45 dBA Leq, or as set forth in the City's Noise Ordinance. 9. Soil Remediation (see Sub -section 3.6.3.2.1 for Impact Analysis) Prior to issuance of a grading permit the applicant shall submit evidence acceptable to the Building Department that the additional investigations and/or remedial activities at APECs identified in Tables 2 through 8 contained in Appendix I (referred to in section 3.10 --Public Health and Safety) have been performed and all shallow soil contamination within the planning Exhibit A - Final Findings and Conditions GPA 93-2(AyA 800fF M 14925/DA 8 Page 2 area for that project phase has been remediated to acceptable levels as defined by the Health Risk Assessment(s) and approved by the OCHCA. 10. Demolition Sampling Plan (see Sub -section 3.6.3.2.1 for Impact Analysis) Prior to the issuance of general grading permits, the project proponent shall submit a Post Demolition Investigation Work Plan to the City. The plan shall be based on the potential presence of contaminated soils, and include procedures to be followed to identify contaminated soil during the subject facility demolition process. This plan shall include a stipulation that areas of contaminated soil will not be left uncovered during the rainy season. 11. Remedial Action Plan (see Sub -section 3.6.3.2.2 for Impact Analysis) Prior to approval of any Final Subdivision Map that would create a legal building site for residential development, the project proponent shall provide the Newport Beach Planning Department a Groundwater Remedial Action Plan approved by the Regional Water Quality Control Board. Light and Glare (see Sub -section 3.8.3.3 of Impact Analysis) 12. Prior to the issuance of any building permit for any community recreation facility or common area that includes exterior lighting the applicant shall demonstrate to the Building Department that the lighting system shall be designed, directed, and maintained in such a manner as to conceal the light source and to minimize light spillage and glare to the adjacent residential uses. The plans shall be prepared and signed by a licensed Architect or Electrical Engineer, with a letter from the Architect or Engineer stating that in his or her opinion, this requirement has been satisfied. Screening of Remediation Systems (see Sub -section 3.8.3.4 of Impact Analysis) 13. Prior to issuance of any building permit for a remediation system, the applicant shall demonstrate to the Planning Department that the screening for the structure substantially conforms to the illustrations provided in Figure 21 of the EIR. For purposes of this requirement, "interim facilities" shall mean those intended for an operation period of less than one year, and 'long-term facilities" shall mean those intended for an operation period of one year or more. Fire Protection (see Sub -section 3.9.3.1 in Impact Analysis) 14. Prior to approval of tract maps or site plans, the project proponent shall make appropriate provisions to permit access by the Fire Department at all entry gates. Exhibit A - Final Findings and Conditions GPA 93-2(AYA 8OOrrTM 14925/13A 8 Page 3 Police (see Sub -section 3.9.3.2 in Impact Analysis) 15. Before approval of any residential building permit, the project proponent shall consult with the Police Department regarding appropriate crime prevention features in site and building design and construction. 16. Prior to approval of tract maps or site plans, the project proponent shall make appropriate provisions to permit access by police at all entry gates. 17. Project Demolition Prior to issuance of any demolition or grading permit a Project Demolition Manual shall be submitted by the applicant and approved by the Building and Fire Departments. All demolition plans and permits shall contain a note stating that all work shall be done according to the requirements and specifications contained in the manual. A copy of the approved manual shall be kept on site at all times and shall be made available to City inspectors, contractors and employees upon request. The manual shall include the following components: a. Removal of Hazardous Substances The manual shall describe the hazardous substances to be removed prior to demolition of structures, the cleanup standards to be met, and the procedures to be followed by the contractor. b. Health and Safety Plan The Health and Safety Plan shall be based on the potential presence of hazardous substances in buildings, equipment and in subsurface soils, and shall outline proper procedures and safe work practices to ensure the safety and protection of all workers involved in the demolition, environmental clean-up and general site activities, as well as residents of the surrounding area and the general public. The plan shall meet all applicable federal, state and local requirements. c. Demolition Sampling Plan The Demolition Sampling Plan shall be based on the potential presence of contaminated soils, and include procedures to be followed to identify contaminated soil during the site demolition process. d. Air Monitoring and Response Plan The manual shall include a plan for on-site and perimeter air monitoring to be conducted during demolition and grading, and a response plan describing remedial actions to be taken in the event that unacceptable levels of air emissions are detected. Exhibit A - Final Findings and Conditions GPA 93-2(AYA SOWITM 14925/DA 8 Page 4 18. Pre -Demolition Building Certification Prior to the issuance of a demolition permit for each building, the project proponent shall demonstrate to the Building Department that all pre -demolition clean-up has been completed in compliance with the Project Demolition Manual. This certification shall include the following: a. Removal of Hazardous Substances The applicant shall demonstrate that hazardous substance removal has been completed in accordance with the Project Demolition Manual. 19. Soil Remediation Prior to issuance of a grading permit the applicant shall submit evidence acceptable to the Building Department Cm coordination with the Planning Department) that the additional investigations and/or remedial activities at APECs identified in Tables 2 through 8 contained in Appendix I have been performed and all shallow soil contamination within the planning area for that project phase has been remediated to acceptable levels as defined by the Health Risk Assessments) and approved by the OCHCA 20. Remedial Action Plan Prior to approval of any Final Subdivision Map that would create a legal building site for residential development, the project proponent shall provide to the Newport Beach Planning Department a Groundwater Remedial Action Plan approved by the Regional Water Quality Control Board. 21. Pre -Development Health Risk Assessments Prior to approval of any Final Subdivision Map that would create a legal building site for residential development, the project proponent shall submit to the Planning Department an OCHCA-approved Health Risk Assessment(s) and Health -Based Cleanup Levels (HBCLs) demonstrating that all potential health risks associated with soil and groundwater contamination will be eliminated prior to residential construction. Health Risk Assessment(s) shall include both construction worker and residential scenarios. Concurrent with submittal to OCHCA, the applicant shall provide all data and reports in support of the Health Risk Assessment to the City for its independent review and analysis. Prior to issuance of any residential building permit the applicant shall demonstrate that either: 1) all appropriate remedial actions have been completed to the satisfaction of OCHCA and RWQCB; or 2) any remedial actions that continue after commencement of residential construction have been determined by OCHCA to have no health risk to occupants. Exhibit A - Final Findings and Conditions GPA 93-2(AYA 800fFrM 14925/DA 8 Page 5 22. Post -Development Health Risk Assessments Prior to issuance of a building permit for any remedial action that would remain in operation after commencement of residential development and may involve air emissions, the proponent shall provide the Building Department with a copy of the air permit issued by the South Coast Air Quality Management District (SCAQMD). SCAQMD uses risk assessment data to establish allowable air emissions which are stipulated in the permit conditions. 23. City Monitoring of Closure, Demolition and Remediation Activities Prior to issuance of any demolition or grading permit the City shall select and retain a qualified hazardous materials consultant to monitor and verify compliance with all adopted mitigation measures related to site closure, demolition, remediation and health risk assessment activities, with the cost of this consultant to be paid by the applicant. Both the consultant and the consultant's scope of work shall be acceptable to both the City and Ford. The applicant shall provide to the City or its designee in a timely fashion copies of all written correspondence with the OCHCA, RWQCB, and any other agency involved in review and approval of soil and groundwater remediation of the site. B General Plan Amendment 93-2(A) Adopt Resolution No. 1393 recommending City Council approval of GPA 93-2(A). C. Amendment No. 800 Adopt Resolution No. 1394 recommending City Council approval of Amendment No. 800. D Development Agreement No. 8 Adopt Resolution No. 1395 recommending City Council approval of Development Agreement No. 8. In addition, the Planning Commission recommends that the following provisions be incorporated into the Development Agreement: That as a public benefit, Ford Motor Land shall pay the cost of a traffic study evaluating potential solutions to the problem of through traffic from the Bison Avenue entrance in the Eastbluff neighborhood, and shall also pay the cost of implementing a solution agreed upon by the City and the Eastbluff community with the stipulation that if a solution other than the four possibilities outlined by the City Traffic Engineer is adopted, Ford's financial obligation shall not exceed the cost of the most expensive of those four solutions; and Exhibit A - Final Findings and Conditions GPA 93-2(AyA 800MM 14925/DA 8 Page 6 2. That the Development Agreement reflect all of the conditions and mitigation measures contained in the EIR; and 3. That the City Council consider including in the Development Agreement a provision for indemnifying the City from liability related to contamination of the site. E Tentative Map of Tract No. 14925: Findings: That the subdivision, together with the provisions for its design and improvement, is consistent with the General Plan and its objectives, policies, general land uses and programs, and the Aeronutronic Ford Planned Community Development Plan and District Regulations. 2. That the site is physically suitable for the type of development proposed. 3. That the site is physically suitable for the density of development proposed. 4. That the design of the subdivision and proposed improvements are not likely to cause substantial environmental damage or substantially and avoidably injure fish or wildlife or their habitat. 5. That the design of the subdivision is not likely to cause serious public health problems. 6. That the design of the subdivision improvements will not conflict with any easements acquired by the public at large for access through or use of property within the proposed subdivision. 7. That public improvements may be required of a developer per Section 19.08.020 of the Municipal Code and Section 66415 of the Subdivision Map Act. Conditions: 1. That a final map be recorded. That the final map be prepared so that the Bearings relate to the State Plane Coordinate System. The final map shall be prepared on the California coordinate system (NAD83) and that prior to recordation of the final map, the surveyor/engineer preparing the map shall submit to the County Surveyor a digital -graphic file of said map in a manner described in Section 7-9-330 and 7-9-337 of the Orange County Subdivision Code and Orange County Subdivision Manual, Subarticle 18. That prior to recordation of the final map, the surveyor/engineer preparing the map shall tie the boundary of the map into the Horizontal Control System established by the County Surveyor in a manner described in Section s 7-9-330 and 7-9-337 of the Orange County Subdivision Code and Orange County Subdivision Manual, Subarticle 18. Monuments Exhibit A - Final Findings and Conditions GPA 93-2(A)/A 8001ITM 14925/13A 8 Page 7 (one inch iron pipe with tag) shall be set On Each Lot Corner unless otherwise approved by the Subdivision Engineer. Monuments shall be protected in place if installed prior to completion of construction project. 2. That all improvements be constructed as required by Ordinance and the Public Works Department. 3. That a standard subdivision agreement and accompanying surety be provided in order to guarantee satisfactory completion of the Public improvements if it is desired to record a tract map or obtain a building permit prior to completion of the public improvements. 4. That each dwelling unit be served with an individual water service and sewer lateral connection to the public water and sewer systems unless otherwise approved by the Public Works Department and the Building Department. 5. That the on-site parking, vehicular circulation and pedestrian circulation systems be subject to further review by the Traffic Engineer. 6. That the design of the private streets and drives conform with the City's Private Street Policy (L4), except as approved by the Public Works Department. The basic roadway width shall be a minimum of 36 feet with parking on both sides. That the collector ring road shall have a minimum width of 40' curb to curb. That the cul-de-sacs shall be designed to conform to minimum City standards as shown in City Std. 103-L with planters or other designs as approved by the Public Works Department and Fire Department. That all bends in roadway shall be designed using the City standard knuckle Standard No. 104- L or other designs as approved by the Public Works Department to provide an adequate turning radius for moving vans and fire trucks. That all street curb returns shall have a minimum radius of 25'. That the location of all underground utilities in the private streets shall conform to City Std. 101-L. That a minimum centerline radius for private streets shall be 150', unless otherwise approved by the Public Works Department. The location, width, configuration, and concept of the private street and drive systems shall be subject to further review and approval by the City Traffic Engineer. 7. That an Encroachment Agreement be executed for all non-standard paving improvements proposed in private streets and utility easements. 8. That the intersection of the private streets and drives be designed to provide sight distance for a speed of 25 miles per hour. Slopes, landscape, walls and other obstruction shall be considered in the sight distance requirements. Landscaping within the sight line shall not exceed twenty-four inches in height. The sight distance requirement may be modified at non-critical locations, subject to approval of the Traffic Engineer, and trees with canopies above 8 feet will be considered. Exhibit A - Final Findings and Conditions GPA 93-2(AyA 800fITM 14925/13A 8 Page 8 9. That easements for ingress and egress be provided for all lots that do not have frontage along the private street system unless otherwise approved by the Public Works Department. 10. That the California Vehicle Code be enforced on the private streets and drives, and that the delineation acceptable to the Police Department and Public Works Department be provided along the sidelines of the private streets and drives. 11. That if it is desired to have a control gate at the entrance, a turnaround shall be provided prior to the gate. The gated entry shall have a minimum of two lanes in (one for visitors and one for owners). The guard gate shall be positioned so that a minimum of 80' is provided for automobile stacking. The design of the controlled entrance shall be reviewed and approved by the Public Works Department and Fire Department. 12. That easements for public emergency and security ingress, egress and public utility purposes on all private streets be dedicated to the City and that all easements be shown on the tract map. 13. That asphalt or concrete access roads shall be provided to all public utilities, vaults, manholes, and junction structure locations, with width to be approved by the Public Works Department. 14. That all vehicular access rights to Jamboree Road be released and relinquished to the City of Newport Beach. 15. That the following improvements be completed: a. On Jamboree Road: That the left turn lane and traffic signal be removed at the Ford -Loral entrance. This will require the construction of a median island and landscaping, removal of the north bound deceleration lane into Ford -Loral which will require the construction of new curb, gutter and sidewalk improvements along a portion of the Jamboree Road frontage and possible installation of additional street lighting where the traffic signal was removed as approved by the Public Works Department. b. On Ford Road: That the unused drive aprons be removed and replaced with curb, gutter and sidewalk, and that the unused left turn lane be removed and replace with a median island and landscaping as approved by the Public Works Department. C. That deteriorated or displaced sections of sidewalk be reconstructed along the Jamboree Road and Ford Road frontages. That all work be completed under an encroachment permit issued by the Public Works Department. Exhibit A - Final Findings and Conditions GPA 93-2(AYA 800/rTM 14925/DA 8 Page 9 16. That street, drainage and utility improvements be shown of standard improvement plans prepared by a licensed civil engineer. 17. That a hydrology and hydraulic study be prepared by the applicant and approved by the Public Works Department, along with a master plan of water, sewer and storm drain facilities for the on-site improvements prior to recording of the tract map. Any modifications or extensions to the existing storm drain, water and sewer systems shown to be required by the study shall be the responsibility of the developer. 18. That the drainage from the slopes adjacent to Jamboree Road and Ford Road be picked up in concrete drainage swales and conveyed to the storm drain unless otherwise approved by the Public Works Department. 19. That the drainage along the northerly tract boundary adjacent to Hartford Drive and Hillsdale Drive be directed away from tract boundaries and conveyed to the storm drain system. 20. That the Water Capital Improvement fee be paid, unless otherwise modified or waived by the City Council. 21. That prior to issuance of any grading or building permits for the site, the applicant shall demonstrate to the satisfaction of the Public Works Department and the Planning Department that adequate sewer facilities will be available for the project. Such demonstration shall include verification from the Orange County Sanitation District and the City's Utilities Department. 22. That County Sanitation District fees be paid prior to issuance of any building permits. 23. That the Public Works Department plan check and inspection fee be paid. 24. Disruption caused by construction work along roadways and by movement of construction vehicles shall be minimized by proper use of traffic control equipment and flagmen. Traffic control and transportation of equipment and materials shall be conducted in accordance with state and local requirements. There shall be no construction storage or delivery of materials within the Jamboree Road, Bison Avenue or Ford Road rights-of- way. 25. That a fire protection system acceptable to the Fire Department be installed by the developer and tested by the Fire Department prior to storage of any combustible materials or start of any structural framing. 26. That this map is for financing and conveyance purposes only, and no legal residential building sites shall be created until subsequent subdivision maps are approved and recorded. Building permits for non-residential structures (e.g., recreation facilities and Exhibit A - Final Findings and Conditions GPA 93-2(AyA 80011TM 14925/DA 8 Page 10 guard gate entrances) may be issued upon recordation of this map and satisfaction of all applicable requirements, however. 27. That all lettered lots shall be privately owned, landscaped and maintained. 28. Prior to recordation of any final map the subdivider shall submit a street naming program for approval by the Planning Commission. F:\WINDOWS\PLANNING\\JOHN-D\FORD\PC\F&C-FINL.DOC Exhibit A - Final Findings and Conditions GPA 93-2(AYA 800/I IM 14925/DA 8 Page 11 EXHIBIT 11D11 Estoppel Certificate Date Requested: Date of Certificate: On July 24, 1995, the City of Newport Beach (the "City") approved City Development Agreement No. 8 (the "Agreement") entitled "Development Agreement between the City of Newport Beach and Ford Motor Land Development Corporation." Within this Estoppel Certificate, Ford Motor Land Development Corporation shall be referred to as "Owner." This Estoppel Certificate certifies that, to the best of the City's knowledge as of the "Date of Certificate" set forth above: [CHECK WHERE APPLICABLE 1. The Development Agreement remains binding and effective; 2. The Development Agreement has not been amended; 3. The Development Agreement has been amended in the following aspects: 4. Neither Owner nor any of its successors is in default under the Development Agreement; 071995 / F31331-002 / 36069.1 The following defaults exist under the Development Agreement: This Estoppel Certificate may be relied upon by any transferee or mortgagee of any interest in the property which is the subject of the Development Agreement. CITY OF NEWPORT BEACH By_ Name Title 071995 / F31331-002 / 36069.1 4 �EvV PpR� . D CITY OF NEWPORT BEACH U OFFICE OF THE CITY CLERK P.O. BOX 1768, NEWPORT BEACH, CA 92659-1768 q</PORN (714)644-3005 August 22, 1995 Ford Motor Land Development Corp. 1 Parklane Blvd., Suite 1500 East Dearborn, MI 48126 Attn: J. Gardner Enclosed are three copies of Ford Loral Development Agreement between the City of Newport Beach and Ford Motor Land Development Corporation, which was approved by the City Council on July 24, 1995. Please have these documents signed and notarized and return all 3 copies to this office for further processing. After the recordation by the Orange County Recorder's Office, we will send you a copy for your files. Sincerely, z�llzele� Y" Wanda E. Raggio City Clerk WER:pm 3300 Newport Boulevard, Newport Beach