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Home My WebLink AboutC-3307 - Cost Sharing Agreement. 5/17/00 - per Sharon Wood, all agreements are terminated since TIC did not sign their contract.L COST SHARING AGREEMENT between THE CITY OF NEWPORT BEACH a municipal corporation and PACIFIC LIFE INSURANCE COMPANY A California corporation 0 • COST SHARING AGREEMENT This Cost Sharing Agreement ( "Agreement'), dated this _Y Wk, day of 5 t IJ f m 14 , 1999, by and between the City of Newport Beach, a municipal corporation (the "City "), and Pacific Life Insurance Company, a California corporation( the "Applicant') is made with respect to the following facts. A. Applicant is the owner of the real property ( "Property ") located within the area known as Newport Center in the City of Newport Beach, County of Orange, California. The Property is depicted in Exhibit A and legally described in Exhibit "B ". B. The City is considering additional entitlement on the Property. C. The City also is considering additional entitlement on properties of other property owners in Newport Center (collectively, Co- Applicants). D. The City and Applicant agree that processing of all additional entitlement in Newport Center should be coordinated to ensure thorough and accurate assessments of environmental impacts and minimize the time and expense necessary to prepare and complete required documents. E. The City and Applicant agree that all additional entitlement should be considered in the context of a comprehensive zoning document to address near -term planning and environmental issues. The City and Applicant also agree that all additional entitlement should be considered in the context of long term planning objectives embodied in an amendment of the Land Use Element of the General Plan (LUE Amendment). 2 0 0 F. The City's consideration of additional entitlement will require the preparation, and possible approval, of numerous documents including zoning, an EIR, a traffic study pursuant to the Traffic Phasing Ordinance (TPO) and the LUE Amendment (collectively the Discretionary Approvals). The processing of any request for a Local Coastal Program amendment or a development agreement shall not be considered in the estimation of costs or the establishment of reimbursement obligations pursuant to this Agreement. G. Applicant acknowledges the City is required to retain the services of an environmental analyst, traffic engineer, land use planner, urban designer and a project manager (collectively, "Planners ") to ensure the Discretionary Approvals are processed in a timely manner. H. Applicant supports the concept of sharing the cost of processing Discretionary Approvals among Co Applicants for entitlement in Newport Center and the Applicant acknowledges that this Agreement equitably distributes costs among Co Applicants. AGREEMENT NOW, THEREFORE, in consideration of the following mutual promises and agreements, the City and Applicant agree as follows: 1. Incorporation of Recitals. The Recitals represent the factual basis for this Agreement. The Parties acknowledge the accuracy of the Recitals and agree that the Recitals are an integral part of this Agreement. 2. Planning Horizons. The Parties agree that the additional entitlement will be analyzed and considered by the City in the context of both E 0 0 zoning and general plan amendments. The zoning document will focus on near - term to mid term planning and environmental issues and may involve consideration of minor additional entitlement on property in Newport Center other than that owned by Applicant and Co- Applicants. The Parties agree that the additional minor entitlement will also be considered by the City in the context of the LUE Amendment. Minor entitlement shall not exceed 45,000 square feet for all of Newport Center, and the zoning document shall limit its use by individual property owners. 3. Management. The City shall retain the services of the Planners to perform the services necessary to process the additional entitlement and prepare appropriate documents. The City shall have the exclusive right and authority to direct the activities of the Planners but City will keep Applicant informed of progress of and issues related to Planners' work and provide Applicant with adequate opportunity to review draft documents prior to release. The City will accept and consider input from Applicant relative to the work by the Planners on the additional entitlement. The City will use its best efforts to ensure that the Planners complete all work necessary to process the Discretionary Approvals within the time frames specified in the scopes of work and /or contract with the City. The City will also use its best efforts to ensure that the services and work performed by Planners are directly related to the Discretionary Approvals and clearly within the scope of work. The Planners selected by the City shall be the contractors of, and responsible to, the City and not of the Applicant or the Co- Applicants. 4. Cooperation. The Applicant will cooperate in good faith with the Planners and provide the City and /or the Planners with all 4 i 0 necessary documents or information reasonably requested of them. Documents and information requested by Planners or the City shall be provided within a reasonable period of time after the request 5. Planners. The City intends to retain the following as Planners pursuant to this Agreement: (i) Environmental Analyst - Michael Brandman Associates (ii) Planning Project Manager— Hogle- Ireland, Inc. (iii) Land Use Planner and Urban Designer — Hogle- Ireland, Inc. (iv) Traffic Engineer — Austin Foust & Associates and Robert Kahn, John Kain & Associates (v) Fiscal Impact Analysis — Economics Research Associates The Applicant agrees that the City may select other Planners to replace some or all of those identified in this Section. However, City shall consult with the Applicant prior to making any decision to replace one or more of the Planners identified in this Section. 6. Fair Share Payment. Applicant shall pay its fair share of the Costs (as defined in Section 7 herein) incurred by the City for the work performed by the Planners on the Discretionary Approvals (including the LUE Amendment), which is Twenty One and One Half percent (21.5 %). 7. Costs. The City has reviewed the scope of work required of each Planner (Exhibits C- G) and has estimated the total Costs to be no more than Five Hundred Thirty Six Thousand, Nine Hundred Seventy Dollars ($536,970) ( "Expected Costs "). City will advise Applicant of the Costs incurred at reasonable intervals during the processing of the Discretionary Approvals. The yr 0 0 City may incur Costs up to the amount of Expected Costs without the consent of the Applicant, consistent with the scopes of work attached as Exhibits C through G. The City may incur Costs up to 110% of the Expected Costs ( "Excess Costs ") after consulting with the Applicant and providing Applicant with the factual basis for the expenditures, including appropriate amendments to the scope of work to be performed by the Planner. The City shall not incur Costs in excess of 110% of the Expected Costs without the prior written approval of the Applicant. The Applicant shall advise the City of its approval or disapproval, in Applicant's sole discretion, of City's request to incur Costs in excess of 110% of Expected Costs within two (2) weeks after service of the City's written request. The City shall provide the Applicant with bi- weekly statements indicating the amounts billed by the Planners, the deliverables or milestones completed during the period, and the estimated percent of completion of the scope of work. 8. Schedule of Payments. The Applicant shall pay its fair share of the Costs to the City according to the following schedule: (i) Fifty percent (50 %) of the Applicant's fair share of the Expected Costs upon execution; (ii) Twenty Five percent (25 %) of the Applicant's fair share of the Expected Costs by December 15, 1999; and (iii) The remainder, including the Applicant's fair share of any Excess Costs, by April 10, 2000. 9. Fees. The payments by Applicant pursuant to this Agreement are in lieu of any City development application fees for the additional entitlement. Applicant shall be required to pay fees normally charged for building and grading permits prior to developing any approved entitlement. Applicant A 0 shall also be required to pay normal fees for any application to amend any of the Discretionary Approvals subsequent to any City action pursuant to this Agreement. In the event Applicant requests a Local Coastal Program amendment or Development Agreement, the Applicant shall, in addition to the payment of Costs pursuant to this Agreement, pay the normal fees for preparing and processing development agreements. Applicant agrees and acknowledges that the Costs described in this Agreement are not "fees" or "development fees" as those terms are used in Section 66000 et. seq. of the Government Code. 10. Review /Notice. The City shall be responsible for scheduling, noticing and conducting all public hearings, and for timely distribution of all documents required for the Project. City is responsible to pay all costs associated with the noticing and conduct of public hearings held in conjunction with the Discretionary Approvals. 11. No Commitment. The provisions of this Agreement and the payment of Costs by Applicant shall not affect or impair the discretion and right of the City to i. disapprove or deny some or all of the additional entitlement; ii. disapprove or deny any of the Discretionary Approvals; or iii. make any finding or determination regarding the adequacy of any document, study or report prepared by the Planners that affects or impacts the Discretionary Approvals. The Applicant confirms that no City official, officer, employee, agent or attorney has represented, expressly or impliedly, that the City will approve some or all of the Discretionary Approvals or some or all of the additional entitlement. The Applicant acknowledges that there will be numerous legislative and adjudicative decisions made by the City with regard to 7 0 the Discretionary Approvals. City shall not make any decision with respect to the Discretionary Approvals absent full compliance with all of the City's legal obligations and full consideration of all relevant information. 12. Term. The Term of this Agreement shall commence on the date that this Agreement is approved by the City Council and fully executed by the parties. This Agreement will expire when all work required by each Planner has been completed to the City's reasonable satisfaction and the Applicant has satisfied all of its obligations under this Agreement including, without limitation, the obligation to pay the City for Expected Costs and Excess Costs. 13. Early Termination. The Applicant may terminate this Agreement by giving City thirty (30) days written notice and written confirmation of withdrawing its request for additional entitlement. The termination by Applicant shall not be effective until Applicant pays all Costs required by this Agreement for the work performed prior to City's receipt of the notice of termination. 14. Default. A Party shall be in default if, and the Party not in default shall be entitled to pursue any remedy in law or equity if: (i) The Party has, without legal justification or excuse, breached any material obligation pursuant to this Agreement; and (ii) The non - defaulting Party has sent written notice to the Party claimed to be in default, describing the default and requesting compliance within ten days of the notice; and I.3 0 0 (iii) The party claimed to be in default has not, within ten (10) days after receipt of the notice, cured the default or commenced cure and then diligently pursued the cure to completion. 15. Non - waiver. The failure of a Party to exercise one or more of its rights or remedies pursuant to this Agreement shall not constitute a waiver of that Party's right to enforce that right or seek that remedy in the future. 16. Assignment. This Agreement may not be assigned by either Party without the prior and express written consent of the other Party. Consent shall not be unreasonably withheld. In determining whether to approve a request by Applicant to assign this Agreement, the City may consider, among other things, the proposed assignee's financial status and apparent commitment to the request for additional entitlement. 17. Modification. This Agreement represents the entire understanding between the City and the Applicant and supersedes any prior or contemporaneous written or oral agreements pertaining to the requested additional entitlement. This Agreement may be modified only by document signed by authorized representatives of the City and the Applicant. All modifications to this Agreement must be approved by the City Council of the City of Newport Beach. 18. Successors. This Agreement and shall be binding on the City, the Applicant and their respective officers, elected officials, employees, agents, contractors, and permitted successors and assigns. M 0 0 19. Attorneys' Fees. In the event that any action or proceeding is commenced by either the City or the Applicant against the other to establish the validity of this Agreement or to enforce one or more of its terms, the prevailing party shall be entitled to recover reasonable legal fees and costs. 20. Jurisdiction and Venue. Any action or proceeding brought relative to this Agreement shall be heard in the appropriate court in the County of Orange, California. 21. Time is of the Essence. Except as otherwise expressly stated, time is of the essence in the performance of every act required pursuant to this Agreement. 22. Cooperation. The City and the Applicant shall take all actions and execute all documents that are reasonably necessary to implement this Agreement. 23. Severability. If any term or provision of this Agreement is found to be invalid or unenforceable, the City and the Applicant agree that they would have executed this Agreement without the invalid term or provision. The invalid term or provision shall be severed from the Agreement and the remainder of the Agreement shall be enforced in its entirety. 24. Representations of Authority. Each person signing this Agreement on behalf of a Party has been authorized to sign this Agreement and bind the Party on whose behalf he or she signs. 25. the following: 0 0 Notices. Notices required by this Agreement shall be sent to If to the City: City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92658 -8915 Attention: Assistant City Manager Facsimile No. 949 - 644 -3250 If to the Applicant: Pacific Life Insurance Company 700 Newport Center Drive Newport Beach, CA 92660 Attention: Lydia Kennedy /John Mulvihill Facsimile No. 949 - 760 -9680 Notice shall be considered received upon fax transmission and actual receipt by the Party, upon personal delivery, or five (5) calendar days after deposit into the United States Mail, first class postage prepaid. Dated: &a4J&4, 1� �, CITY OF NEWPORT BEACH, City Manager 11 ATTEST: City Clerk AS TO FORM: Attorney Dated: 12 — /7— 9? APPLICANT PACIFIC LIFE INSURANCE CO. John Mulvlhm Authorized Agent Vies President APPROVED AS TO FORM: By__ � �u C4"-Y� i V DCMi CUWn0vm Assistant Secretary L 1 Counsel for fW � bp/e' rz/� �m/Zi WA EXHIBIT B THE LAND REFERRED TO IN THIS POLICY IS DESCRIBED AS FOLLOWSs THAT PORTION OF BLOCK 55 OF IRVINE'S SUBDIVISION IN THE CITY OF NEWPORT BEACH# COUNTY OF ORANGE# STATE OF'CALIFORNIA# AS PER MAP FILED IN BOOK It PAGE 88 OF MISCELLANEOUS RECORD MAPS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY# DESCRIBED AS FOLLOWSs BEGINNING AT THE NORTHERLY TERMINUS OF THAT CERTAIN COURSE IN THE WESTERLY RIGHT OF WAY OF SANTA CRUZ DRIVEo SHOWN'AS "N 090 10' 26" W 238@391" ON A MAP OF TRACT N0. 6015 AS PER MAP FILED IN BOOK 239# PAGES 28 THROUGH 41 OF MISCELLANEOUS MAPS# IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTYI THENCE SOUTH 90 10' 26" EAST 238.39 FEET ALONG SAID RIGHT OF WAY TO THE BEGINNING OF A CURVE THEREIN CONCAVE NORTHWESTERLY HAVING A RADIUS OF 25.00 FEETi THENCE SOUTHWESTERLY 37.45 FEET ALONG SAID CURVE THROUGH AN ANGLE OF 850 49' 00" TO THE BEGINNING OF A REVERSE CURVE CONCAVE SOUTHEASTERLY HAVING A RADIUS OF 1010900 FEET AND BEING THE NORTHWESTERLY RIGHT OF WAY OF NEWPORT CENTER DRIVE WEST AS SHOWN ON SAID MAP OF TRACT N0. 60151 THENCE SOUTHWESTERLY 506.72 FEET ALONG SAID CURVE AND RIGHT OF WAY THROUGH AN ANGLE OF 280 44' 43" TO POINT "A" HEREINAFTER REFERRED T01 THENCE CONTINUING SOUTHWESTERLY 16.82 FEET ALONG SAID CURVE AND RIGHT OF WAY THROUGH WANGLE OF-Oci`571 15 "1 THENCE LEAVING SAID RIGHT OF WAY NORTH 430 03' 24 " 'WEST 20.00 FEET TO THE BEGINNING OF A CURVE CONCAVE NORTHEASTERLY HAVING A RADIUS OF 720.00 FEET1 THENCE NORTHERLY 531.26 FEET ALONG SAID'CURVE THROUGH AN ANGLE OF 420 16' 35" TO THE BEGINNING OF A COMPOUND CURVE CONCAVE EASTERLY HAVING A.RADIUS OF 1440900 FEETI THENCE NORTHERLY 451.54 FEET ALONG SAID dJAVE THROUGH AN ANGLE OF 170 57' 58 111 THENCE NON- TANGENT SOUTH 790 22' 01" EAST 594.19 FEET TO A POINT ON THE WESTERLY RIGHT OF WAY OF SAID SANTA CRUZ DRIVE# SAID POINT BEING ON A CURVE CONCAVE EASTERLY HAVING A RADIUS OF 950.50 FEET# A RADIAL TO SAID POINT BEARS "NORTH 790 34' 41" WEST1 THENCE SOUTHERLY 63.2L9, FEET ALONG SAID CURVE AND RIGHT OF WAY THROUGH, AN ANGLE OF 30 48' 56" TO POINT "B" HEREINAFTER REFERRED TOO THENCE CONTINUING SOUTHERLY 261.78 FEET ALONG SAID CURVE AND RIGHT OFWAY THROUGH AN ANGLE OF 150 46' 49" TO THE POINT OF BEGINNING# EXCEPTING THEREFROM THAT PORTION OF THE ABOVE DESCRIBED LAND LYING SOUTHWESTERLY# WESTERLY AND NORTHERLY OF THE FOLLOWING DESCRIBED LINE BEGINNING AT POINT "A" DESCRIBED ABOVE# SAID POINT BEING THE BEGINNING OF A CURVE CONCAVE NORTHEASTERLY HAVING A'RADIUS OF 25x00 FEET# A RADIAL TO SAID POINT BEARS SOUTH 240 $8' 03" WESTI THENCE NORTHWESTERLY 9:59'FEET ALONG SAID CURVE THROUGH AN ANGLE OF 210 58' 33 "1 THENCE NORTH 430 03' 24" WEST 10978 FEET TO THE BEGINNING OF A'CURVE CONCAVE- NORTHEASTERLY HAVING A RADIUS OF 705.00 FEET1 THENCE NORTHERLY 520.19 FEET ALONG SAID CURVE THROUGH AN ANGLE OF 420 16' 35" TO THE BEGINNING OF.A COMPOUND CURVE CONCAVE EASTERLY HAVING A RADIUS OF 1425.00 FEET# THENCE NORTHE• 385.05 FEET ALONG SAID AVE THROUGH AN ANGLE OF 150 28' 55" TO THE BEGINNING OF A COMPOUND CURVE CONCAVE SOUTHEASTERLY HAVING A RADIUS OF 25.00 FEETi THENCE EASTERLY 37.50 FEET ALONG SAID CURVE THROUGH AN ANGLE OF 850 55' 53 "1 THENCE SOUTH 790 22' 01" EAST 537.47 FEET TO THE BEGINNING OF A CURVE CONCAVE SOUTHWESTERLY HAVING A RADIUS OF 25.00 FEET THENCE SOUTHEASTERLY 37.51 FEET ALONG SAID CURVE THROUGH AN ANGLE OF 850 58' 24" TO POINT "B" DESCRIBED ABOVE, SAID LAND IS INCLUDED WITHIN THE AREA SHOWN ON A MAP FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID ORANGE COUNTYP IN BOOK 64 PAGES 14 TO 23 INCLUSIVE OF RECORD OF SURVEYS. SAID LAND IS ALSO SHOWN AS PARCEL 1 ON A MAP FILED IN BOOK 27 PAGE 42 OF PARCEL MAPS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. ALSO EXCEPT ALL OILS OIL RIGHTSi MINERALS9 MINERAL RIGHTS9 NATURAL GASo NATURAL GAS RIGHTSo AND OTHER HYDROCARBONS BY WHATSOEVER NAME KNOWN THAT MAY BE WITHIN OR UNDER THE SUBJECT PROPERTY9 TOGETHER WITH THE PERPETUAL RIGHT OF DRILLINGS MININGo EXPLORING AND OPERATING THEREFOR AND REMOVING THE SAME FROM SAID PROPERTY OR ANY OTHER LAND+ INCLUDING THE RIGHT TO WHIPSTOCK OR DIRECTIONALLY DRILL AND MINE FROM LANDS OTHER THAN THE PROPERTY AND TO BOTTOM SUCH WHIPSTOCKED OR DIRECTIONALLY' DRILLED WELLSr TUNNELS AND SHAFTS UNDER AND BENEATH OR BEYOND THE EXTERIOR LIMITS THEREOF# AND TO REDRILLi.RETUNNELt EOUIPf MAINTAINo REPAIRS DEEPEN AND OPERATE ANY SUCH WELLS OR MINES# WITHOUT9 HOWEVERs THE RIGHT TO DRILL. MINE# EXPLORE AND OPERATE THROUGH THE SURFACE OR THE UPPER FIVE HUNDRED 1500' FEET OF THE SUBSURFACE OF SAID LANDi AS RESERVED BY THE IRVINE COMPANYt BY DEED RECORDED JULY 19 1970. COST SHARING AGREEMENT between THE CITY OF NEWPORT BEACH a municipal corporation and O Hill Properties a California limited partnership 0 0 COST SHARING AGREEMENT This Cost Sharing Agreement ( "Agreement'), dated this J ;. day of S �1 rr , 1999, by and between the City of Newport Beach, a municipal corporation (the "City "), and O Hill Properties, a California limited partnership (the "Applicant') is made with respect to the following facts. A. Applicant is the owner of the real property ( "Property ") located within the area known as Newport Center in the City of Newport Beach, County of Orange, California. The Property is depicted in Exhibit A and legally described in Exhibit "B ". B. The City is considering additional entitlement on the Property. C. The City also is considering additional entitlement on properties of other property owners in Newport Center (collectively, Co- Applicants). D. The City and Applicant agree that processing of all additional entitlement in Newport Center should be coordinated to ensure thorough and accurate assessments of environmental impacts and minimize the time and expense necessary to prepare and complete required documents. E. The City and Applicant agree that all additional entitlement should be considered in the context of a comprehensive zoning document to address near -term planning and environmental issues. The City and Applicant also agree that all additional entitlement should be considered in the context of long term planning objectives embodied in an amendment of the Land Use Element of the General Plan (LUE Amendment). 2 F. The City's consideration of additional entitlement will require the preparation, and possible approval, of numerous documents including zoning, an EIR, a traffic study pursuant to the Traffic Phasing Ordinance (TPO) and the LUE Amendment (collectively the Discretionary Approvals). The processing of any request for a Local Coastal Program amendment or a development agreement shall not be considered in the estimation of costs or the establishment of reimbursement obligations pursuant to this Agreement. G. Applicant acknowledges the City is required to retain the services of an environmental analyst, traffic engineer, land use planner, urban designer and a project manager (collectively, 'Planners ") to ensure the Discretionary Approvals are processed in a timely manner. H. Applicant supports the concept of sharing the cost of processing Discretionary Approvals among Co Applicants for entitlement in Newport Center and the Applicant acknowledges that this Agreement equitably distributes costs among Co Applicants. AGREEMENT NOW, THEREFORE, in consideration of the following mutual promises and agreements, the City and Applicant agree as follows: 1. Incorporation of Recitals. The Recitals represent the factual basis for this Agreement. The Parties acknowledge the accuracy of the Recitals and agree that the Recitals are an integral part of this Agreement. 2. Planning Horizons. The Parties agree that the additional entitlement will be analyzed and considered by the City in the context of both 3 zoning and general plan amendments. The zoning document will focus on near - term to mid term planning and environmental issues and may involve consideration of minor additional entitlement on property in Newport Center other than that owned by Applicant and Co- Applicants. The Parties agree that the additional minor entitlement will also be considered by the City in the context of the SUE Amendment. Minor entitlement shall not exceed 45,000 square feet for all of Newport Center, and the zoning document shall limit its use by individual property owners. 3. Management. The City shall retain the services of the Planners to perform the services necessary to process the additional entitlement and prepare appropriate documents. The City shall have the exclusive right and authority to direct the activities of the Planners but City will keep Applicant informed of progress of and issues related to Planners' work and provide Applicant with adequate opportunity to review draft documents prior to release. The City will accept and consider input from Applicant relative to the work by the Planners on the additional entitlement. The City will use its best efforts to ensure that the Planners complete all work necessary to process the Discretionary Approvals within the time frames specified in the scopes of work and /or contract with the City. The City will also use its best efforts to ensure that the services and work performed by Planners are directly related to the Discretionary Approvals and clearly within the scope of work. The Planners selected by the City shall be the contractors of, and responsible to, the City and not of the Applicant or the Co- Applicants. 4. Cooperation. The Applicant will cooperate in good faith with the Planners and provide the City and /or the Planners with all 4 necessary documents or information reasonably requested of them. Documents and information requested by Planners or the City shall be provided within a reasonable period of time after the request 5. Planners. The City intends to retain the following as Planners pursuant to this Agreement: (i) Environmental Analyst - Michael Brandman Associates (ii) Planning Project Manager— Hogle- Ireland, Inc. (iii) Land Use Planner and Urban Designer— Hogle- Ireland, Inc. (iv) Traffic Engineer — Austin Foust & Associates and Robert Kahn, John Kain & Associates (v) Fiscal Impact Analysis — Economics Research Associates The Applicant agrees that the City may select other Planners to replace some or all of those identified in this Section. However, City shall consult with the Applicant prior to making any decision to replace one or more of the Planners identified in this Section. 6. Fair Share Payment. Applicant shall pay its fair share of the Costs (as defined in Section 7 herein) incurred by the City for the work performed by the Planners on the Discretionary Approvals (including the LUE Amendment), which is One percent (1 %). 7. Costs. The City has reviewed the scope of work required of each Planner (Exhibits C- G) and has estimated the total Costs to be no more than Five Hundred Thirty Six Thousand, Nine Hundred Seventy Dollars ($536,970) ( "Expected Costs "). City will advise Applicant of the Costs incurred at reasonable intervals during the processing of the Discretionary Approvals. The 5 0 • City may incur Costs up to the amount of Expected Costs without the consent of the Applicant, consistent with the scopes of work attached as Exhibits C through G. The City may incur Costs up to 110% of the Expected Costs ( "Excess Costs ") after consulting with the Applicant and providing Applicant with the factual basis for the expenditures, including appropriate amendments to the scope of work to be performed by the Planner. The City shall not incur Costs in excess of 110% of the Expected Costs without the prior written approval of the Applicant. The Applicant shall advise the City of its approval or disapproval, in Applicant's sole discretion, of City's request to incur Costs in excess of 110% of Expected Costs within two (2) weeks after service of the City's written request. The City shall provide the Applicant with bi- weekly statements indicating the amounts billed by the Planners, the deliverables or milestones completed during the period, and the estimated percent of completion of the scope of work. 8. Schedule of Payments. The Applicant shall pay its fair share of the Costs to the City according to the following schedule: (i) Fifty percent (50 %) of the Applicant's fair share of the Expected Costs upon execution; (ii) Twenty Five percent (25 %) of the Applicant's fair share of the Expected Costs by December 15, 1999; and (iii) The remainder, including the Applicant's fair share of any Excess Costs, by April 10, 2000. 9. Fees. The payments by Applicant pursuant to this Agreement are in lieu of any City development application fees for the additional entitlement. Applicant shall be required to pay fees normally charged for building and grading permits prior to developing any approved entitlement. Applicant 0 0 shall also be required to pay normal fees for any application to amend any of the Discretionary Approvals subsequent to any City action pursuant to this Agreement. In the event Applicant requests a Local Coastal Program amendment or Development Agreement, the Applicant shall, in addition to the payment of Costs pursuant to this Agreement, pay the normal fees for preparing and processing development agreements. Applicant agrees and acknowledges that the Costs described in this Agreement are not "fees" or "development fees" as those terms are used in Section 66000 et. seq. of the Government Code. 10. Review /Notice. The City shall be responsible for scheduling, noticing and conducting all public hearings, and for timely distribution of all documents required for the Project. City is responsible to pay all costs associated with the noticing and conduct of public hearings held in conjunction with the Discretionary Approvals. 11. No Commitment. The provisions of this Agreement and the payment of Costs by Applicant shall not affect or impair the discretion and right of the City to i. disapprove or deny some or all of the additional entitlement; ii. disapprove or deny any of the Discretionary Approvals; or iii. make any finding or determination regarding the adequacy of any document, study or report prepared by the Planners that affects or impacts the Discretionary Approvals. The Applicant confirms that no City official, officer, employee, agent or attorney has represented, expressly or impliedly, that the City will approve some or all of the Discretionary Approvals or some or all of the additional entitlement. The Applicant acknowledges that there will be numerous legislative and adjudicative decisions made by the City with regard to 19 0 0 the Discretionary Approvals. City shall not make any decision with respect to the Discretionary Approvals absent full compliance with all of the City's legal obligations and full consideration of all relevant information. 12. Term. The Term of this Agreement shall commence on the date that this Agreement is approved by the City Council and fully executed by the parties. This Agreement will expire when all work required by each Planner has been completed to the City's reasonable satisfaction and the Applicant has satisfied all of its obligations under this Agreement including, without limitation, the obligation to pay the City for Expected Costs and Excess Costs. 13. Early Termination. The Applicant may terminate this Agreement by giving City thirty (30) days written notice and written confirmation of withdrawing its request for additional entitlement. The termination by Applicant shall not be effective until Applicant pays all Costs required by this Agreement for the work performed prior to City's receipt of the notice of termination. 14. Default. A Party shall be in default if, and the Party not in default shall be entitled to pursue any remedy in law or equity if: (i) The Party has, without legal justification or excuse, breached any material obligation pursuant to this Agreement; and (ii) The non - defaulting Party has sent written notice to the Party claimed to be in default, describing the default and requesting compliance within ten days of the notice; and M i • (iii) The party claimed to be in default has not, within ten (10) days after receipt of the notice, cured the default or commenced cure and then diligently pursued the cure to completion. 15. Non - waiver. The failure of a Party to exercise one or more of its rights or remedies pursuant to this Agreement shall not constitute a waiver of that Party's right to enforce that right or seek that remedy in the future. 16. Assignment. This Agreement may not be assigned by either Party without the prior and express written consent of the other Party. Consent shall not be unreasonably withheld. In determining whether to approve a request by Applicant to assign this Agreement, the City may consider, among other things, the proposed assignee's financial status and apparent commitment to the request for additional entitlement. 17. Modification. This Agreement represents the entire understanding between the City and the Applicant and supersedes any prior or contemporaneous written or oral agreements pertaining to the requested additional entitlement. This Agreement may be modified only by document signed by authorized representatives of the City and the Applicant. All modifications to this Agreement must be approved by the City Council of the City of Newport Beach. 18. Successors. This Agreement and shall be binding on the City, the Applicant and their respective officers, elected officials, employees, agents, contractors, and permitted successors and assigns. 0 19. Attorneys' Fees. In the event that any action or proceeding is commenced by either the City or the Applicant against the other to establish the validity of this Agreement or to enforce one or more of its terms, the prevailing party shall be entitled to recover reasonable legal fees and costs. 20. Jurisdiction and Venue. Any action or proceeding brought relative to this Agreement shall be heard in the appropriate court in the County of Orange, California. 21. Time is of the Essence. Except as otherwise expressly stated, time is of the essence in the performance of every act required pursuant to this Agreement. 22. Cooperation. The City and the Applicant shall take all actions and execute all documents that are reasonably necessary to implement this Agreement. 23. Severability. If any term or provision of this Agreement is found to be invalid or unenforceable, the City and the Applicant agree that they would have executed this Agreement without the invalid term or provision. The invalid term or provision shall be severed from the Agreement and the remainder of the Agreement shall be enforced in its entirety. 24. Representations of Authority. Each person signing this Agreement on behalf of a Party has been authorized to sign this Agreement and bind the Party on whose behalf he or she signs. 10 25. the following: Notices. Notices required by this Agreement shall be sent to If to the City: City of Newport Beach 3300 Newport Blvd. If to the Applicant: Newport Beach, CA 92658 -8915 Attention: Assistant City Manager Facsimile No. 949 - 644 -3250 0 Hill Properties One Upper Newport Plaza Newport Beach, CA 92660 Attention: Phillip La Plante Facsimile No. 949 - 752 -0885 Notice shall be considered received upon fax transmission and actual receipt by the Party, upon personal delivery, or five (5) calendar days after deposit into the United States Mail, first class postage prepaid. Dated: /S. /0" CITY OF NEWPORT BEACH, By: 7/ Jt City Manager 11 0 0 ATTEST: City Clerk APPROVED AS TO FORM: we,,r� City Attorney Dated: PPLICANT Authorized Agent APPROVED AS TO FORM: Legal Counsel for 12 NOV-1 9-99 06:52am From -ONE UPPERWORT PLAZA 9497520685 1* T -035 P.07/08 F -409 tom; PARCEL A: DESCRIPTION EXHIBIT B THAT PORTION OF BLOCK 93 OF IRVINE'S SUBDIVISION IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 1 PAGE 98 OF MISCELLANEOUS RECORD MAPS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY DESCRIBED AS FOLLOWS: LOT A AS SHOWN ON THAT CERTAIN PARCEL MAPS FILED OCTOBER 10, 1967 IN BOOK 10 PAGE 20 OF PARCEL MAPS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, AND, PARCELS 1, 2 AND 3 AS SHOWN ON THAT CERTAIN PARCEL MAPS FILED FEER13ARY 11, 1977 IN BOOK 92 PAGES 13 AND 14 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. EXCEPTING THEREFROM ANY AND ALL OIL, OIL RIGHTS, MINERALS, MINERAL RIGHTS, NATURAL GAS RIGHTS, AND OTHER HYDROCARBONS BY WHATSOEVER NAME KNOWN, GEOTHERMAL STEAM, AND ALL PRODUCTS DERIVED FROM ANY OF THE FOREGOING, THAT MAY BE WITHIN OR UNDER THE LAND, TOGETHER WITH THE PERPETUAL RIGHT OF DRILLING, MINING, EXPLORING AND OPERATING THEREFOR AND STORING IN AND REMOVING THE SAME PROM THE LAND OR ANY OTHER LAND, INCLUDING THE RIGHT TO WHIPSTOCK OR DIRECTIONALLY DRILL AND MINE FROM LANDS OTHER THAN THOSE CONVEYED HEREBY, OIL OR GAS WELLS, TUNNELS AND SHAFTS INTO, THROUGH OR ACROSS THE SU13SURFACE OF THE LAND, AND TO BOTTOM SUCH WHIPSTOCKED OR DIRECTIONALLY DRILLED WELLS, TUNNELS AND SHAFTS UNDER AND BENEATH OR BEYOND THE EXTERIOR LIMITS THEREOF, AND TO REDRILL, RETUNML, EQUIP, MAINTAIN, REPAIR, DEEPEN AND OPERATE ANY SUCH WELLS OR MINES; WITHOUT, HOWEVER, THE RIGHT TO DRILL, MINE, STORE, EXPLORE AND OPERATE THROUGH THE SURFACE OR THE UPPER 500 FEET OF THE SUBSMFACE OF THE LAND, AS RESERVED IN THE DEEDS FROM THE IRVINE COMPANY, A MICHIGAN CORPORATION, RECORDED MARCH 16, 1994 AS INSTRUMENTS NO. 94- 0184987, 94- 0184988, 94- 0184989, 94- 0184990 AND 94- 0184991, ALL OF OFFICIAL RECORDS. PARCEL B: AN EASEMENTS FOR INGRESS AND EGRESS OVER THE MOST SOUTHERLY 190.00 FEET OF PARCEL 1, IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON THAT CERTAIN PARCEL MAPS FILED OCTOBER 10, 1967 IN BOOK 10 PAGE 20 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. Alfll I_1L_1000 10• �o n.,nnc- �n,.,.� Rov..16 -99 06:52pm From -ONE UPPER Ns RT PLAZA 9497520885 • T -035 P.08/08 F -409 n ri+m OR- 9820084 'p'j`COiM1^k ( TITLE OFFICER - SWIERC7f:WSKI EXHIBIT B ALL THAT CERTA W LAND SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF ORANGE. CITY OF NEWPORT BEACH. DESCRIBED AS FOLLOWS: PARCEL A: PARCEL 1 OF PARCEL MAP NO. 79 -704, AS PER MAP FILED IN BOOK 152, PAGES 17 TO 20 INCLUSIVE OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. EXCEPT ANY AND ALL OIL. OIL RIGHTS, MINERALS. MINERAL RIGHTS, NATURAL GAS RIGHTS, AND OTHER HYDROCARBONS BY WHATSOEVER NAME KNOWN, GEOTHERMAL STEAM, AND ALL PRODUCTS DERIVED FROM ANY OF THE FOREGOING, THAT MAY BE WITHIN OR UNDER THE LAND. TOGETHER WITH THE PERPETUAL RIGHT OF DRILLING, MINING, EXPLORING AND OPERATING THEREFOR AND STORING IN AND REMOVING THE SAME FROM THE LAND OR ANY OTHER LAND, INCLUDING THE RIGHT TO WHIPSTOCK OR DIRECTIONALLY DRILL AND MINE FROM LANDS OTHER THAN THOSE CONVEYED HEREBY, OIL OR GAS WELLS, TUNNELS AND SHAFTS INTO, THROUGH OR ACROSS THE SUBSURFACE OF THE LAND, AND TO BOTTOM SUCH WHIPSTOCKED OR DIRECTIONALLY DRILLED WELLS, TUNNELS AND SHAFTS UNDER AND BENEATH OR BEYOND THE EXTERIOR LIMITS THEREOF, AND TO REDRILL. RETUNNEL, EQUIP. MAINTAIN, REPAIR, DEEPEN AND OPERATE ANY SUCH WELLS OR MINES; WITHOUT, HOWEVER, THE RIGHT TO DRILL, MINE, STORE, EXPLORE AND OPERATE THROUGH THE SURFACE OR THE UPPER 500 FEET OF THE SUBSURFACE OF THE LAND, AS RESERVED IN THE DEED FROM THE IRVINE COMPANY, A MICHIGAN CORPORATION, RECORDED MARCH 9, 1993 AS INSTRUMENT NOS. 93 -0158178, 93 -0158178 AND 93 -0158180, ALL OFFICIAL RECORDS. PARCEL B: PARCEL 3 OF PARCEL MAP NO. 79-704, AS SHOWN ON A MAP FILED IN BOOK 152, PAGES 17 TO 20 INCLUSIVE OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. EXCEPT ANY AND ALL OIL, OIL RIGHTS, MINERALS, MINERAL RIGHTS. NATURAL GAS RIGHTS, AND OTHER HYDROCARBONS BY WHATSOEVER NAME KNOWN, GEOTHERMAL STEAM. AND ALL PRODUCTS DERIVED FROM ANY OF THE FOREGOING, THAT MAY BE WITHIN OR UNDER THE LAND, TOGETHER WITH THE PERPETUAL RIGHT OF DRILLING, MINING, EXPLORING AND OPERATING THEREFOR AND STORING IN AND REMOVING THE SAME FROM THE LAND OR ANY )THER LAND, INCLUDING THE RIGHT TO WHIPSTOCK OR DIRECTIONALLY DRILL AND MINE FROM LANDS OTHER THAN THOSE CONVEYED HEREBY, OIL OR GAS WELLS, TUNNELS AND SHAFTS INTO, THROUGH OR ACROSS THE SUBSURFACE OF THE LAND, AND TO BOTTOM SUCH WHIPSTOCKED OR DIRECTIONALLY DRILLED WELLS, TUNNELS AND SHAFTS UNDER AND IENEATH OR BEYOND THE EXTERIOR LIMITS THEREOF, AND TO REDRILL. RETUNNEL, EQUIP, 4AINTAIN, REPAIR, DEEPEN AND OPERATE ANY SUCH WELLS OR MINES; WITHOUT, HOWEVER, 'HE RIGHT TO DRILL, MINE, STORE, EXPLORE AND OPERATE THROUGH THE SURFACE OR THE JPPER 500 FEET OF THE SUBSURFACE OF THE LAND, AS RESERVED IN THE DEED FROM THE RVINE COMPANY, A MICHIGAN CORPORATION, RECORDED MARCH 9, 1993 AS INSTRUMENT NOS. 5 -0158178, 93 -0158179 AND 93- 015820, ALL OF OFFICIAL RECORDS. PAGE 4 NOU -16 -1999 18:19 9497520885 P.08 0 COST SHARING AGREEMENT between 0 THE CITY OF NEWPORT BEACH a municipal corporation and CALIFORNIA STATE TEACHERS' RETIREMENT SYSTEM a public entity i • COST SHARING AGREEMENT This Cost Sharing Agreement ( "Agreement "), dated this � )A day of �e 1999, by and between the City of Newport Beach, a municipal corporation (the "City "), and California State Teachers' Retirement System, a public entity ( the "Applicant ") is made with respect to the following facts. A. Applicant is the owner of the real property ( "Property ") located within the area known as Newport Center in the City of Newport Beach, County of Orange, California. The Property is depicted in Exhibit A and legally described in Exhibit "B ". B. The City is considering additional entitlement on the Property. C. The City also is considering additional entitlement on properties of other property owners in Newport Center (collectively, Co- Applicants). D. The City and Applicant agree that processing of all additional entitlement in Newport Center should be coordinated to ensure thorough and accurate assessments of environmental impacts and minimize the time and expense necessary to prepare and complete required documents. E. The City and Applicant agree that all additional entitlement should be considered in the context of a comprehensive zoning document to address near -term planning and environmental issues. The City and Applicant also agree that all additional entitlement should be considered in the context of long term planning objectives embodied in an amendment of the Land Use Element of the General Plan (LUE Amendment). 2 r • F. The City's consideration of additional entitlement will require the preparation, and possible approval, of numerous documents including zoning, an EIR, a traffic study pursuant to the Traffic Phasing Ordinance (TPO) and the LUE Amendment (collectively the Discretionary Approvals). The processing of any request for a Local Coastal Program amendment or a development agreement shall not be considered in the estimation of costs or the establishment of reimbursement obligations pursuant to this Agreement. G. Applicant acknowledges the City is required to retain the services of an environmental analyst, traffic engineer, land use planner, urban designer and a project manager (collectively, 'Planners ") to ensure the Discretionary Approvals are processed in a timely manner. H. Applicant supports the concept of sharing the cost of processing Discretionary Approvals among Co Applicants for entitlement in Newport Center and the Applicant acknowledges that this Agreement equitably distributes costs among Co Applicants. AGREEMENT NOW, THEREFORE, in consideration of the following mutual promises and agreements, the City and Applicant agree as follows: 1. Incorporation of Recitals. The Recitals represent the factual basis for this Agreement. The Parties acknowledge the accuracy of the Recitals and agree that the Recitals are an integral part of this Agreement. 2. Planning Horizons. The Parties agree that the additional entitlement will be analyzed and considered by the City in the context of both 3 0 0 zoning and general plan amendments. The zoning document will focus on near - term to mid term planning and environmental issues and may involve consideration of minor additional entitlement on property in Newport Center other than that owned by Applicant and Co- Applicants. The Parties agree that the additional minor entitlement will also be considered by the City in the context of the LUE Amendment. Minor entitlement shall not exceed 45,000 square feet for all of Newport Center, and the zoning document shall limit its use by individual property owners. 3. Management. The City shall retain the services of the Planners to perform the services necessary to process the additional entitlement and prepare appropriate documents. The City shall have the exclusive right and authority to direct the activities of the Planners but City will keep Applicant informed of progress of and issues related to Planners' work and provide Applicant with adequate opportunity to review draft documents prior to release. The City will accept and consider input from Applicant relative to the work by the Planners on the additional entitlement. The City will use its best efforts to ensure that the Planners complete all work necessary to process the Discretionary Approvals within the time frames specified in the scopes of work and /or contract with the City. The City will also use its best efforts to ensure that the services and work performed by Planners are directly related to the Discretionary Approvals and clearly within the scope of work. The Planners selected by the City shall be the contractors of, and responsible to, the City and not of the Applicant or the Co- Applicants. 4. Cooperation. The Applicant will cooperate in good faith with the Planners and provide the City and /or the Planners with all LI n necessary documents or information reasonably requested of them. Documents and information requested by Planners or the City shall be provided within a reasonable period of time after the request 5. Planners. The City intends to retain the following as Planners pursuant to this Agreement: (i) Environmental Analyst - Michael Brandman Associates (ii) Planning Project Manager— Hogle- Ireland, Inc. (iii) Land Use Planner and Urban Designer— Hogle- Ireland, Inc. (iv) Traffic Engineer — Austin Foust & Associates and Robert Kahn, John Kain & Associates (v) Fiscal Impact Analysis — Economics Research Associates The Applicant agrees that the City may select other Planners to replace some or all of those identified in this Section. However, City shall consult with the Applicant prior to making any decision to replace one or more of the Planners identified in this Section. 6. Fair Share Payment. Applicant shall pay its fair share of the Costs (as defined in Section 7 herein) incurred by the City for the work performed by the Planners on the Discretionary Approvals (including the LUE Amendment), which is Thirteen percent (13 %). 7. Costs. The City has reviewed the scope of work required of each Planner (Exhibits C- G) and has estimated the total Costs to be no more than Five Hundred Thirty Six Thousand, Nine Hundred Seventy Dollars ($536,970) ( "Expected Costs "). City will advise Applicant of the Costs incurred at reasonable intervals during the processing of the Discretionary Approvals. The 5 11 • City may incur Costs up to the amount of Expected Costs without the consent of the Applicant, consistent with the scopes of work attached as Exhibits C through G. The City may incur Costs up to 110% of the Expected Costs ( "Excess Costs ") after consulting with the Applicant and providing Applicant with the factual basis for the expenditures, including appropriate amendments to the scope of work to be performed by the Planner. The City shall not incur Costs in excess of 110% of the Expected Costs without the prior written approval of the Applicant. The Applicant shall advise the City of its approval or disapproval, in Applicant's sole discretion, of City's request to incur Costs in excess of 110% of Expected Costs within two (2) weeks after service of the City's written request. The City shall provide the Applicant with bi- weekly statements indicating the amounts billed by the Planners, the deliverables or milestones completed during the period, and the estimated percent of completion of the scope of work. 8. Schedule of Payments. The Applicant shall pay its fair share of the Costs to the City according to the following schedule: (i) Fifty percent (50 %) of the Applicant's fair share of the Expected Costs upon execution; (ii) Twenty Five percent (25 %) of the Applicant's fair share of the Expected Costs by December 15, 1999; and (iii) The remainder, including the Applicant's fair share of any Excess Costs, by April 10, 2000. 9. Fees. The payments by Applicant pursuant to this Agreement are in lieu of any City development application fees for the additional entitlement. Applicant shall be required to pay fees normally charged for building and grading permits prior to developing any approved entitlement. Applicant 0 Cl • shall also be required to pay normal fees for any application to amend any of the Discretionary Approvals subsequent to any City action pursuant to this Agreement. In the event Applicant requests a Local Coastal Program amendment or Development Agreement, the Applicant shall, in addition to the payment of Costs pursuant to this Agreement, pay the normal fees for preparing and processing development agreements. Applicant agrees and acknowledges that the Costs described in this Agreement are not "fees" or "development fees' as those terms are used in Section 66000 et. seq. of the Government Code. 10. Review /Notice. The City shall be responsible for scheduling, noticing and conducting all public hearings, and for timely distribution of all documents required for the Project. City is responsible to pay all costs associated with the noticing and conduct of public hearings held in conjunction with the Discretionary Approvals. 11. No Commitment. The provisions of this Agreement and the payment of Costs by Applicant shall not affect or impair the discretion and right of the City to disapprove or deny some or all of the additional entitlement; ii. disapprove or deny any of the Discretionary Approvals; or iii. make any finding or determination regarding the adequacy of any document, study or report prepared by the Planners that affects or impacts the Discretionary Approvals. The Applicant confirms that no City official, officer, employee, agent or attorney has represented, expressly or impliedly, that the City will approve some or all of the Discretionary Approvals or some or all of the additional entitlement. The Applicant acknowledges that there will be numerous legislative and adjudicative decisions made by the City with regard to 7 0 the Discretionary Approvals. City shall not make any decision with respect to the Discretionary Approvals absent full compliance with all of the City's legal obligations and full consideration of all relevant information. 12. Term. The Term of this Agreement shall commence on the date that this Agreement is approved by the City Council and fully executed by the parties. This Agreement will expire when all work required by each Planner has been completed to the City's reasonable satisfaction and the Applicant has satisfied all of its obligations under this Agreement including, without limitation, the obligation to pay the City for Expected Costs and Excess Costs. 13. Early Termination. The Applicant may terminate this Agreement by giving City thirty (30) days written notice and written confirmation of withdrawing its request for additional entitlement. The termination by Applicant shall not be effective until Applicant pays all Costs required by this Agreement for the work performed prior to City's receipt of the notice of termination. 14. Default. A Party shall be in default if, and the Party not in default shall be entitled to pursue any remedy in law or equity if: (i) The Party has, without legal justification or excuse, breached any material obligation pursuant to this Agreement; and (ii) The non - defaulting Party has sent written notice to the Party claimed to be in default, describing the default and requesting compliance within ten days of the notice; and r (iii) The party claimed to be in default has not, within ten (10) days after receipt of the notice, cured the default or commenced cure and then diligently pursued the cure to completion. 15. Non - waiver. The failure of a Party to exercise one or more of its rights or remedies pursuant to this Agreement shall not constitute a waiver of that Party's right to enforce that right or seek that remedy in the future. 16. Assignment. This Agreement may not be assigned by either Party without the prior and express written consent of the other Party. Consent shall not be unreasonably withheld. In determining whether to approve a request by Applicant to assign this Agreement, the City may consider, among other things, the proposed assignee's financial status and apparent commitment to the request for additional entitlement. 17. Modification. This Agreement represents the entire understanding between the City and the Applicant and supersedes any prior or contemporaneous written or oral agreements pertaining to the requested additional entitlement. This Agreement may be modified only by document signed by authorized representatives of the City and the Applicant. All modifications to this Agreement must be approved by the City Council of the City of Newport Beach. 18. Successors. This Agreement and shall be binding on the City, the Applicant and their respective officers, elected officials, employees, agents, contractors, and permitted successors and assigns. M 0 0 19. Attorneys' Fees. In the event that any action or proceeding is commenced by either the City or the Applicant against the other to establish the validity of this Agreement or to enforce one or more of its terms, the prevailing party shall be entitled to recover reasonable legal fees and costs. 20. Jurisdiction and Venue. Any action or proceeding brought relative to this Agreement shall be heard in the appropriate court in the County of Orange, California. 21. Time is of the Essence. Except as otherwise expressly stated, time is of the essence in the performance of every act required pursuant to this Agreement. 22. Cooperation. The City and the Applicant shall take all actions and execute all documents that are reasonably necessary to implement this Agreement. 23. Severability. If any term or provision of this Agreement is found to be invalid or unenforceable, the City and the Applicant agree that they would have executed this Agreement without the invalid term or provision. The invalid term or provision shall be severed from the Agreement and the remainder of the Agreement shall be enforced in its entirety. 24. Representations of Authority. Each person signing this Agreement on behalf of a Party has been authorized to sign this Agreement and bind the Party on whose behalf he or she signs. 10 0 25. Notices. the following: If to the City: If to the Applicant: 0 Notices required by this Agreement shall be sent to City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92658 -8915 Attention: Assistant City Manager Facsimile No. 949 - 644 -3250 Lend Lease Real Estate Investments Inc. 8950 California Center Drive #222 Sacramento, CA 95826 Attention: Mark Billeci, Senior Vice President Facsimile No. 916 - 361 -1701 Notice shall be considered received upon fax transmission and actual receipt by the Party, upon personal delivery, or five (5) calendar days after deposit into the United States Mail, first class postage prepaid. Dated: I.s' CITY OF NEWPORT BEACH, By: City Manager 11 ATTEST: City Clerk APPROVED AS TO FORM: Attorney Dated: / p0 FA �W, / 0 APPLICANT CAL/l Au>k►e a�A-j---)OSo-P— Foe- 77h5 Gf`�t -t Fo1ZNr R- S'7)97� j�79cif-�72S I APPROVED AS TO FORM: Legal Counsel for 12 ,.t10i28199 12:20 PETER B# �50C1ATES � 714644;;250 9163611701 FAX N0. 916361101 _ 23' OCT-28-99 THU 10�57 LEND LEASE_. s=�`oracArPt� �•- �-.'n� OG7. Ya.1999 N0.310 P002/002 P. 02 P. 2/8 EXHIBIT B All of that a rtmia real property looatod in the City of Newport Beach, County of orange and described as followsi Parvol hi Parcel 3, county of orange, state or California, as shown on a paVael map filed in Book 1j6, Pages lz and 23 of Parcel Maps, in the Office of the County Recorder of eaid county. Except therafroin all oil, oil rights, gas minerals, mineral rights, natural gas tights, and other hydrocarbon substances In and under said real property, and the right to grant and transfer the same, together with all nooademry and convenient xLghta to explore for, develop, produce and extract and take the 69194, aubjeot to the ex reas limitation that anti and all•operationa for the exploration, deValopment, 1produotion, extraction and taking of any of said eubstanaam shall be carried on at levels below the depth of five hundred (sob) feet f.om the aurraoe of sold land by laeane of wells derrielta and/or other equipment from surface locations on adjoining qr neiqhboring land, and subject further to the expreea limitation that the foregoing reservation shall in no way be intorprated to include any right ar entry in and upon Cho surface of the land hertinaove described, 2t s undoratood by the parties that the above stated remervation is expressly aubject to all restrictions and regulatiena Conearning the drilling cox ft a;, roduotLOn of oily gad, minerals, petroleuWa and other gdrmoaxbon nubstanaes, Which arc contained in the City Chatter ar the municipal ordioancaa of the City of NBVport peach, as reserved in the dead from The Irvine Company, a corporation, recorded August 1, 1979, Parcel Bt U nonee9cIU4iVe armament for vehicular and dralpapagiptaoii tlasippurtanantutoe ? nra ldA,ltoverithat. pOttlOn of Parcel 2 as ahcyn on a paroal hap filed Lh Book 1361 Pages =g and 23 of parcel maps, in the offioe•or the county Recorder of r,aia county deiineatsd and labaidd as '+iO""clusive Basement for Vshiculer and Pedestrian Ingross and egress and. for Installation and maintenance of Utility and Drainage Paoilitiso recorded In Book 12567, Page 267, Official Records" on said parcel map, At a joint study session of the City Council and Planning Commission on March 22, 1999, the City Council approved the comprehensive approach for Newport Center planning suggested by the Commission, and directed the Commission and staff to develop a scope of work, budget and . schedule, and meet with property owners. Working with the Commission's General Plan Update Committee, staff has made significant progress in these areas, as follows. • Four property owners have agreed to participate in the comprehensive planning program. They are The Irvine Company, Pacific Life, California State Teachers Retirement System, and Newport Beach Country Club. • A scope of work and budget have been developed, and the Council approved an agreement with planning and project management consultants at the meeting of September 13. • A Notice of Preparation of an environmental impact report has been circulated for public review, and a public scoping meeting was held on September 14. • A consultant has been selected for preparation of the EIR, and that agreement is on the Council agenda for September 27. Part of the Planning Commission's suggested approach for Newport Center planning was financing of the effort through contributions of funds for consultant assistance from major property owners. The four property owners who have agreed to participate in the program also have agreed to share the consultant costs. The attached agreement formalizes that commitment. It also sets forth the services to be provided and their estimated costs, and provides a payment schedule and method for approving cost increases that may arise over the course of the project. Costs are to be allocated among the property owners according to the percent of total traffic from the project that will be generated by their requested entitlement. Payments are to be made to the City in three installments. The first payment will be 50% of the estimated costs, and is due by • October 1, 1999. This will allow the City to authorize the consultants to proceed without incurring City expenses. The second payment will amount to 75% of costs, and is due by December 15, 1999. This will cover the major expenditures for preparation of draft planning and environmental documents. The final payment is due by April 1, 2000, when public review of the CITY OF NEVORT BEACH Hearing te: September 27, 1999 o` m COMMUNITY AND ECONOMIC Agenda Item = DEVELOPMENT No.: 15 • `� <,.�a�' PLANNING DEPARTMENT Staff Person: 3300 NEWPORT BOULEVARD Sharon Z. Wood (949) 644 -3222 NEWPORT BEACH, CA 92658 644 FAX 644 �J (714) -3200; (714) -3250 �--C '! I REPORT TO THE MAYOR AND CITY COUNCII. 4 APFRCVID SUBJECT: _ Cost Sharing Agreement with Newport Center Property Owners ` e 6 SUGGESTED ACTION: L4" Approve in concept an agreement for sharing of planning and EIR costs among property owners who have initiated General Plan amendment requests; and authorize City Manager to execute. At a joint study session of the City Council and Planning Commission on March 22, 1999, the City Council approved the comprehensive approach for Newport Center planning suggested by the Commission, and directed the Commission and staff to develop a scope of work, budget and . schedule, and meet with property owners. Working with the Commission's General Plan Update Committee, staff has made significant progress in these areas, as follows. • Four property owners have agreed to participate in the comprehensive planning program. They are The Irvine Company, Pacific Life, California State Teachers Retirement System, and Newport Beach Country Club. • A scope of work and budget have been developed, and the Council approved an agreement with planning and project management consultants at the meeting of September 13. • A Notice of Preparation of an environmental impact report has been circulated for public review, and a public scoping meeting was held on September 14. • A consultant has been selected for preparation of the EIR, and that agreement is on the Council agenda for September 27. Part of the Planning Commission's suggested approach for Newport Center planning was financing of the effort through contributions of funds for consultant assistance from major property owners. The four property owners who have agreed to participate in the program also have agreed to share the consultant costs. The attached agreement formalizes that commitment. It also sets forth the services to be provided and their estimated costs, and provides a payment schedule and method for approving cost increases that may arise over the course of the project. Costs are to be allocated among the property owners according to the percent of total traffic from the project that will be generated by their requested entitlement. Payments are to be made to the City in three installments. The first payment will be 50% of the estimated costs, and is due by • October 1, 1999. This will allow the City to authorize the consultants to proceed without incurring City expenses. The second payment will amount to 75% of costs, and is due by December 15, 1999. This will cover the major expenditures for preparation of draft planning and environmental documents. The final payment is due by April 1, 2000, when public review of the i • planning and environmental documents is scheduled to begin. Total costs are expected to be approximately $500,000. Additionally, the agreement states that the City will contribute staff time related to the project • without charging the property owners the usual application fees, except for development agreements. Staff expects our time commitment on this project to be significantly lower than typical for a project of this magnitude, since project management consultants have been retained. The property owners have reviewed an outline of the agreement's provisions, and their comments have been incorporated into the agreement. However, they have not had an opportunity to review the agreement yet. Therefore, staff is suggesting that the City Council approve the agreement in concept, and allow the City Manager to make minor changes before executing it. SHARON Z. WOOD Assistant City Manager Attachment: Cost Sharing Agreement Page 2 0 0 COST SHARING AGREEMENT between THE CITY OF NEWPORT BEACH a municipal corporation and LJ n U 0 0 9 LJ COST SHARING AGREEMENT This Cost Sharing Agreement ( "Agreement'), dated this day of , 1999, by and between the City of Newport Beach, a municipal corporation (the "City "), and , a California ( the "Applicant") is made with respect to the following facts. A. Applicant is the owner of the real property ('Property ") located within the area known as Newport Center in the City of Newport Beach, County of Orange, California. The Property is depicted in Exhibit A and legally described in Exhibit "B ". • B. Applicant has asked the City to consider and approve additional entitlement on the Property. C. Other owners of property in Newport Center (collectively, Co- Applicants) have also asked the City to consider and approve additional entitlement on their properties. D. The City and Applicant agree that processing of all the requests for additional entitlement in Newport Center should be coordinated to ensure thorough and accurate assessments of environmental impacts and minimize the time and expense necessary to prepare and complete required documents. E. The City and Applicant agree that all requests for additional entitlement should be considered in the context of a comprehensive zoning document (Planned Community Development Plan (PC Plan) or a Specific Plan) to address near -term planning and environmental issues. The City and Applicant • 2 • also agree that the requests should be considered in the context of long term planning objectives embodied in an amendment of the Land Use Element of the General Plan (LUE Amendment). F. The City's consideration of all requests for additional entitlement will require the preparation, and possible approval, of numerous documents including, a PC Plan or Specific Plan, an EIR, a traffic study pursuant to the Traffic Phasing Ordinance (TPO) and the LUE Amendment (collectively the Discretionary Approvals). The processing of any request for a development agreement shall not be considered in the estimation of costs or the establishment of reimbursement obligations pursuant to this Agreement. G. Applicant acknowledges the City is required to retain the services of an environmental analyst, traffic engineer, land use planner, urban designer and a project manager (collectively, "Planners ") to ensure the Discretionary • Approvals are processed in a timely manner. H. Applicant supports the concept of sharing the cost of processing Discretionary Approvals among Co Applicants for entitlement in Newport Center and the Applicant acknowledges that this Agreement equitably distributes costs. AGREEMENT NOW, THEREFORE, in consideration of the following mutual promises and agreements, the City and Applicant agree as follows: 1. Incorporation of Recitals The Recitals represent the factual basis for this Agreement. The Parties acknowledge the accuracy of the • Recitals and agree that the Recitals are an integral part of this Agreement. r • 2. Planning Horizons. The Parties agree that the additional entitlement requested by Applicant and Co- Applicants will be analyzed and considered by the City in the context of both zoning and general plan amendments. The zoning amendment (a PC Text or Specific Plan) will focus on near -term to mid term planning and environmental issues and may involve consideration of additional entitlement on property in Newport Center other than that owned by Applicant and Co- Applicants. The Parties agree that the additional entitlement requested by Applicant and /or Co- Applicants will also be considered by the City in the context of the LUE Amendment. 3. Management. The City shall retain the services of the Planners to perform the services necessary to process the requested entitlement and prepare appropriate documents. The City shall have the exclusive right and authority to direct the activities of the Planners but City will keep Applicant informed of progress of and issues related to Planners work and provide Applicant with adequate opportunity to review draft documents prior to release. The City will accept and consider input from Applicant relative to the work by the Planners on the entitlement requested by Applicant. The City will use its best efforts to ensure that the Planners complete all work necessary to process the Discretionary Approvals within the time frames specified in the scopes of work and /or contract with the City. The City will also use its best efforts to ensure that the services and work performed by Planners are directly related to the Discretionary Approvals and clearly within the scope of work. The Planners selected by the City shall be the contractors of, and responsible to, the City and not of the Applicant or the Co- Applicants. 4 11 0 0 r1 LJ 0 4. Cooperation. 0 The Applicant will cooperate in good faith with the Planners and provide the City and /or the Planners with all necessary documents or information reasonably requested of them. Documents and information requested by Planners or the City shall be provided within a reasonable period of time after the request. Applicant shall not be required to disclose any document or information which by law is privileged or confidential but the failure to disclose may require City to terminate processing of the Discretionary Approvals for the requested additional entitlement. 5. Planners. The City intends to retain the following as Planners pursuant to this Agreement: (i) (iv) (v) Kahn, John Kain Environmental Analyst - Michael Brandman Associates Planning Project Manager — Hogle- Ireland, Inc. Land Use Planner— Hogle- Ireland, Inc. Urban Design Planner - Tellus Traffic Engineer — Austin Faust & Associates and Robert The Applicant agrees that the City may select other Planners to replace some or all of those identified in this Section and may do so without the consent of Applicant. However, City shall consult with the Applicant prior to making any decision to replace one or more of the Planners identified in this Section. 6. Fair Share Payment. Applicant shall pay its share of the costs incurred by the City for the work performed by the Planners on the Discretionary Approvals (including the LUE Amendment) related to the request • for additional entitlement submitted by Applicant and the Co- Applicants (Costs). Applicants share of the Costs shall be equal to the amount of average daily trips 5 0 0 generated by the entitlement requested by Applicant divided by the total average daily trips generated by the entitlement requested by the Applicant and the Co- Applicants (fair share). The Applicant's fair share of the Costs is 7. Costs. percent L%). The City has reviewed the scope of work required of each Planner (Exhibits C -G) and has estimated the total Costs to be no more than Five Hundred Thousand Dollars ($500,000) ( "Expected Costs "). City will advise Applicant of the Costs incurred at reasonable intervals during the processing of the Discretionary Approvals. The City may incur Costs up to the amount of Expected Costs without the consent of the Applicant. The City may incur Costs up to 110% of the Expected Costs ( "Excess Costs ") after consulting with the Applicant and providing Applicant with the factual basis for the expenditures, including appropriate amendments to the scope of work to be performed by the Planner. The City shall not incur Costs in excess of 110% of the Expected Costs without the prior written approval of the Applicant. The Applicant shall advise the City of its approval or disapproval of City's request to incur Costs in excess of 110% of Expected Costs within three (3) business days after service of the City's written request 8. Schedule of Payments. The Applicant shall pay Costs to the City according to the following schedule: (i) Fifty percent (50 %) of the Expected Costs by October 1, 1999; (ii) Twenty Five percent (25 %) of the Expected Costs by December 15, 1999; and (iii) The remainder, including any Excess Costs, by April 10, 2000. is • • • 9. Fees. The payments by Applicant pursuant to this Agreement are in lieu of any City development application fees for the requested additional entitlement. Applicant shall be required to pay fees normally charged for building and grading permits prior to developing any approved entitlement. Applicant shall also be required to pay normal fees for any application to amend any of the Discretionary Approvals subsequent to any City action pursuant to this Agreement. In the event Applicant requests a Development Agreement, the Applicant shall, in addition to the payment of Costs pursuant to this Agreement, pay the normal fees for preparing and processing development agreements. Applicant agrees and acknowledges that the Costs described in this Agreement are not "fees" or "development fees" as those terms are used in Section 66000 et. seq. of the Government Code. • 10. Review /Notice. The City shall be responsible for scheduling, noticing and conducting all public hearings, and for timely distribution of all documents required for the Project. City is responsible to pay all costs associated with the noticing and conduct of public hearings held in conjunction with the Discretionary Approvals. 11. No Commitment. The provisions of this Agreement and the payment of Costs by Applicant shall not affect or impair the discretion and right of the City to L disapprove or deny some or all of the additional entitlement requested by Applicant ii. disapprove or deny any of the Discretionary Approvals; or • iii. make any finding or determination regarding the adequacy of any document, study or report prepared by the Planners that affects or 7 • CI impacts the Discretionary Approvals or the requested entitlement. The Applicant • confirms that no City official, officer, employee, agent or attorney has represented, expressly or impliedly, that the City will approve some or all of the Discretionary Approvals or some or all of the additional entitlement requested by Applicant. The Applicant acknowledges that there will be numerous legislative and adjudicative decisions made by the City with regard to the Discretionary Approvals and /or the additional entitlement requested by Applicant. City shall not make any decision with respect to the Discretionary Approvals or the additional entitlement requested by Applicant absent full compliance with all of the City's legal obligations and full consideration of all relevant information. 12. Term. The Term of this Agreement shall commence on the date that this Agreement is approved by the City Council and fully executed by the parties. This Agreement will expire when all work required by each Planner • has been completed to the City's reasonable satisfaction and the Applicant has satisfied all of its obligations under this Agreement including, without limitation, the obligation to pay the City for Expected Costs and Excess Costs. 13. Early Termination. The Applicant may terminate this Agreement by giving City thirty (30) days written notice and written confirmation of withdrawing its request for additional entitlement. The termination by Applicant shall not be effective until Applicant pays all Costs required by this Agreement for the work performed prior to the notice of termination. 14. Default. A Party shall be in default if, and the Party not in default shall be entitled to pursue any remedy in law or equity if: • N ll L] • (i) The Party has, without legal justification or excuse, breached any material obligation pursuant to this Agreement; and (ii) The non - defaulting Party has sent written notice to the Party claimed to be in default, describing the default and requesting compliance within ten days of the notice; and (iii) The party claimed to be in default has not, within ten (10) days after receipt of the notice, cured the default or commenced cure and then diligently pursued the cure to completion. 15. Non - waiver. The failure of a Party to exercise one or more of its rights or remedies pursuant to this Agreement shall not constitute a waiver of that Party's right to enforce that right or seek that remedy in the future. • 16. Assignment. This Agreement may not be assigned by either Party without the prior and express written consent of the other Party. Consent shall not be unreasonably withheld. In determining whether to approve a request by Applicant to assign this Agreement, the City may consider, among other things, the proposed assignee's financial status and apparent commitment to the request for additional entitlement. 17. Modification. This Agreement represents the entire understanding between the City and the Applicant and supersedes any prior or contemporaneous written or oral agreements pertaining to the requested additional entitlement. This Agreement may be modified only by document signed by authorized representatives of the City and the Applicant. All modifications to this Agreement must be approved by the City Council of the City • of Newport Beach. I• 0 9 0 18. Successors. This Agreement and shall be binding on the City, the Applicant and their respective officers, elected officials, employees, agents, contractors, and permitted successors and assigns. 19. Attorneys' Fees. In the event that any action or proceeding is commenced by either the City or the Applicant against the other to establish the validity of this Agreement or to enforce one or more of its terms, the prevailing party shall be entitled to recover reasonable legal fees and costs. 20. Jurisdiction and Venue. Any action or proceeding brought relative to this Agreement shall be heard in the appropriate court in the County of Orange, California. i 21. Time is of the Essence. Except as otherwise expressly stated, time is of the essence in the performance of every act required pursuant to this Agreement. 22. Cooperation. The City and the Applicant shall take all actions and execute all documents that are reasonably necessary to implement this Agreement. 23. Severability. If any term or provision of this Agreement is found to be invalid or unenforceable, the City and the Applicant agree that they would have executed this Agreement without the invalid term or provision. The invalid term or provision shall be severed from the Agreement and the remainder • of the Agreement shall be enforced in its entirety. 10 • i 24. Representations of Authority. Each person signing this Agreement on behalf of a Party has been authorized to sign this Agreement and bind the Party on whose behalf he or she signs. 25. Notices. Notices required by this Agreement shall be sent to the following: If to the City: City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92658 -8915 Attention: Assistant City Manager Facsimile No. 949 - 644 -3250 • If to the Applicant: Attention: Facsimile No. Notice shall be considered received upon fax transmission and actual receipt by the Party, upon personal delivery, or five (5) calendar days after deposit into the United States Mail, first class postage prepaid. Dated: 0 CITY OF NEWPORT BEACH, 11 Mayor rE °Oqr CM OF NEART BEACH o` m COMMUNITY AND ECONOMIC DEVELOPMENT V _ _ • `' •tea "' PLANNING DEPARTMENT 3300 NEWPORT BOULEVARD NEWPORT BEACH, CA 92658 (714) 644 -3200; FAX (714) 644 -3250 0 searing 'Vate: September 27, 1999 Agenda Item No.: 16 Staff Person: Sharon Z. Wood (949) 644 -3222 SUPPLEMENTAL REPORT TO THE MAYOR AND CITY COUNCIL SUBJECT: Cost Sharing Agreement with Newport Center Property Owners SUGGESTED ACTION: Approve in concept an agreement for sharing of planning and EIR costs among property owners who have initiated General Plan amendment requests; and authorize City Manager to execute. Staff met with representatives of the Newport Center property owners on Friday, September 24, 1999, and reviewed the draft Cost Sharing Agreement with them. Several changes were requested to clarify the agreement and update it with the most recent information from the City's traffic consultants. These changes are incorporated in the attached, revised draft. The property owners still need the opportunity to have the agreement reviewed by their legal counsel and decision makers. Therefore, staff s recommendation for the City Council to approve the agreement in concept is unchanged. SHARON Z. WOOD Assi tant City Manager � Attachment: Cost Sharing Agreement • COST SHARING AGREEMENT between THE CITY OF NEWPORT BEACH a municipal corporation and 0 • 0 0 0 0 0 COST SHARING AGREEMENT This Cost Sharing Agreement ( "Agreement'), dated this day of 1999, by and between the City of Newport Beach, a municipal corporation (the "City "), and a California ( the "Applicant") is made with respect to the following facts. A. Applicant is the owner of the real property ('Property") located within the area known as Newport Center in the City of Newport Beach, County of Orange, California. The Property is depicted in Exhibit A and legally described in Exhibit "B ". B. The City is considering additional entitlement on the Property. C. The City also is considering additional entitlement on properties of other property owners in Newport Center (collectively, Co- Applicants). D. The City and Applicant agree that processing of all additional entitlement in Newport Center should be coordinated to ensure thorough and accurate assessments of environmental impacts and minimize the time and expense necessary to prepare and complete required documents. E. The City and Applicant agree that all additional entitlement should be considered in the context of a comprehensive zoning document (Planned Community Development Plan (PC Plan) or a Specific Plan) to address near - term planning and environmental issues. The City and Applicant also agree that all additional entitlement should be considered in the context of long term 2 LI planning objectives embodied in an amendment of the Land Use Element of the , General Plan (LUE Amendment). F. The City's consideration of all requests for additional entitlement will require the preparation, and possible approval, of numerous documents including, a PC Plan or Specific Plan, an EIR, a traffic study pursuant to the Traffic Phasing Ordinance (TPO) and the LUE Amendment (collectively the Discretionary Approvals). The processing of any request for a Local Coastal Program amendment or a development agreement shall not be considered in the estimation of costs or the establishment of reimbursement obligations pursuant to this Agreement. G. Applicant acknowledges the City is required to retain the services of an environmental analyst, traffic engineer, land use planner, urban designer and a project manager (collectively, "Planners ") to ensure the Discretionary Approvals are processed in a timely manner. H. Applicant supports the concept of sharing the cost of processing Discretionary Approvals among Co Applicants for entitlement in Newport Center and the Applicant acknowledges that this Agreement equitably distributes costs. AGREEMENT NOW, THEREFORE, in consideration of the following mutual promises and agreements, the City and Applicant agree as follows: 1. Incorporation of Recitals. The Recitals represent the factual basis for this Agreement. The Parties acknowledge the accuracy of the Recitals and agree that the Recitals are an integral part of this Agreement. K3 0 I* r] 9 0 Planning Horizons. The Parties agree that the additional entitlement will be analyzed and considered by the City in the context of both zoning and general plan amendments. The zoning amendment (a PC Text or Specific Plan) will focus on near -term to mid term planning and environmental issues and may involve consideration of minor additional entitlement on property in Newport Center other than that owned by Applicant and Co- Applicants. The Parties agree that the additional entitlement will also be considered by the City in the context of the LUE Amendment. 3. Management. The City shall retain the services of the Planners to perform the services necessary to process the additional entitlement and prepare appropriate documents. The City shall have the exclusive right and authority to direct the activities of the Planners but City will keep Applicant informed of progress of and issues related to Planners' work and provide Applicant with adequate opportunity to review draft documents prior to release. The City will accept and consider input from Applicant relative to the work by the Planners on the additional entitlement. The City will use its best efforts to ensure that the Planners complete all work necessary to process the Discretionary Approvals within the time frames specified in the scopes of work and /or contract with the City. The City will also use its best efforts to ensure that the services and work performed by Planners are directly related to the Discretionary Approvals and clearly within the scope of work. The Planners selected by the City shall be the contractors of, and responsible to, the City and not of the Applicant or the Co- Applicants. 4. Cooperation. The Applicant will cooperate in good faith with the Planners and provide the City and /or the Planners with all 4 necessary documents or information reasonably requested of them. Documents , and information requested by Planners or the City shall be provided within a reasonable period of time after the request 5. Planners. The City intends to retain the following as Planners pursuant to this Agreement: (i) Environmental Analyst - Michael Brandman Associates (ii) Planning Project Manager— Hogle- Ireland, Inc. (iii) Land Use Planner and Urban Designer— Hogle- Ireland, Inc. (iv) Traffic Engineer — Austin Foust & Associates and Robert Kahn, John Kain & Associates (v) Fiscal Impact Analysis — To be determined The Applicant agrees that the City may select other Planners to replace some or all of those identified in this Section and may do so without the consent of Applicant. However, City shall consult with the Applicant prior to making any decision to replace one or more of the Planners identified in this Section. B. Fair Share Payment. Applicant shall pay its fair share of the costs incurred by the City for the work performed by the Planners on the Discretionary Approvals (including the LUE Amendment) , which is percent L %a). 7. Costs. The City has reviewed the scope of work required of each Planner (Exhibits C- F) and has estimated the total Costs to be no more than Five Hundred Thirty -Two Thousand Dollars ($532,000) ( "Expected Costs "). City will advise Applicant of the Costs incurred at reasonable intervals during the processing of the Discretionary Approvals. The City may incur Costs up to the 9 0 amount of Expected Costs without the consent of the Applicant. The City may incur Costs up to 110% of the Expected Costs ( "Excess Costs ") after consulting with the Applicant and providing Applicant with the factual basis for the expenditures, including appropriate amendments to the scope of work to be performed by the Planner. The City shall not incur Costs in excess of 110% of the Expected Costs without the prior written approval of the Applicant. The Applicant shall advise the City of its approval or disapproval of City's request to incur Costs in excess of 110% of Expected Costs within two (2) weeks after service of the City's written request 8. Schedule of Payments. The Applicant shall pay Costs to the City according to the following schedule: (i) Fifty percent (50 %) of the Expected Costs upon execution; (ii) Twenty Five percent (25 %) of the Expected Costs by December 15, 1999; and (iii) The remainder, including any Excess Costs, by April 10, 2000. 9. Fees. The payments by Applicant pursuant to this Agreement are in lieu of any City development application fees for the additional entitlement. Applicant shall be required to pay fees normally charged for building and grading permits prior to developing any approved entitlement. Applicant shall also be required to pay normal fees for any application to amend any of the Discretionary Approvals subsequent to any City action pursuant to this Agreement. In the event Applicant requests a Local Coastal Program amendment or Development Agreement, the Applicant shall, in addition to the payment of Costs pursuant to this Agreement, pay the normal fees for preparing and processing development agreements. Applicant agrees and acknowledges N rI that the Costs described in this Agreement are not "fees" or "development fees" • as those terms are used in Section 66000 et. seq. of the Government Code. 10. Review /Notice. The City shall be responsible for scheduling, noticing and conducting all public hearings, and for timely distribution of all documents required for the Project. City is responsible to pay all costs associated with the noticing and conduct of public hearings held in conjunction with the Discretionary Approvals. 11. No Commitment. The provisions of this Agreement and the payment of Costs by Applicant shall not affect or impair the discretion and right of the City to L disapprove or deny some or all of the additional entitlement; ii. disapprove or deny any of the Discretionary Approvals; or . iii. make any finding or determination regarding the adequacy of any document, study or report prepared by the Planners that affects or impacts the Discretionary Approvals. The Applicant confirms that no City official, officer, employee, agent or attorney has represented, expressly or impliedly, that the City will approve some or all of the Discretionary Approvals or some or all of the additional entitlement. The Applicant acknowledges that there will be numerous legislative and adjudicative decisions made by the City with regard to the Discretionary Approvals. City shall not make any decision with respect to the Discretionary Approvals absent full compliance with all of the City's legal obligations and full consideration of all relevant information. 12. Term. The Term of this Agreement shall commence on the . date that this Agreement is approved by the City Council and fully executed by 7 I • the parties. This Agreement will expire when all work required by each Planner has been completed to the City's reasonable satisfaction and the Applicant has satisfied all of its obligations under this Agreement including, without limitation, the obligation to pay the City for Expected Costs and Excess Costs. 13. Early Termination. The Applicant may terminate this Agreement by giving City thirty (30) days written notice and written confirmation of withdrawing its request for additional entitlement. The termination by Applicant shall not be effective until Applicant pays all Costs required by this Agreement for the work performed prior to the notice of termination. 14. Default. A Party shall be in default if, and the Party not in default shall be entitled to pursue any remedy in law or equity if: • (i) The Party has, without legal justification or excuse, • breached any material obligation pursuant to this Agreement; and (ii) The non - defaulting Party has sent written notice to the Party claimed to be in default, describing the default and requesting compliance within ten days of the notice; and (iii) The party claimed to be in default has not, within ten (10) days after receipt of the notice, cured the default or commenced cure and then diligently pursued the cure to completion. 15. Non - waiver. The failure of a Party to exercise one or more of its rights or remedies pursuant to this Agreement shall not constitute a waiver of that Party's right to enforce that right or seek that remedy in the future. 91 0 9 16. Assignment. This Agreement may not be assigned by either 0 Party without the prior and express written consent of the other Party. Consent shall not be unreasonably withheld. In determining whether to approve a request by Applicant to assign this Agreement, the City may consider, among other things, the proposed assignee's financial status and apparent commitment to the request for additional entitlement. 17. Modification. This Agreement represents the entire understanding between the City and the Applicant and supersedes any prior or contemporaneous written or oral agreements pertaining to the requested additional entitlement. This Agreement may be modified only by document signed by authorized representatives of the City and the Applicant. All modifications to this Agreement must be approved by the City Council of the City of Newport Beach. 18. Successors. This Agreement and shall be binding on the City, the Applicant and their respective officers, elected officials, employees, agents, contractors, and permitted successors and assigns. 19. Attorneys' Fees. In the event that any action or proceeding is commenced by either the City or the Applicant against the other to establish the validity of this Agreement or to enforce one or more of its terms, the prevailing party shall be entitled to recover reasonable legal fees and costs. 20. Jurisdiction and Venue. Any action or proceeding brought relative to this Agreement shall be heard in the appropriate court in the County of . Orange, California. 0 9 0 Ci 9 0 21. Time is of the Essence. Except as otherwise expressly stated, time is of the essence in the performance of every act required pursuant to this Agreement. 22. Cooperation. The City and the Applicant shall take all actions and execute all documents that are reasonably necessary to implement this Agreement. 23. Severability. If any term or provision of this Agreement is found to be invalid or unenforceable, the City and the Applicant agree that they would have executed this Agreement without the invalid term or provision. The invalid term or provision shall be severed from the Agreement and the remainder of the Agreement shall be enforced in its entirety. 24. Representations of Authority. Each person signing this Agreement on behalf of a Party has been authorized to sign this Agreement and bind the Party on whose behalf he or she signs. 25. Notices. Notices required by this Agreement shall be sent to the following: If to the City: City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92658 -8915 Attention: Assistant City Manager Facsimile No. 949 - 644 -3250 10 0 If to the Applicant: Attention: Facsimile No. 0 Notice shall be considered received upon fax transmission and actual receipt by the Party, upon personal delivery, or five (5) calendar days after deposit into the United States Mail, first class postage prepaid. Dated: :- ATTEST: By: City Clerk APPROVED AS TO FORM: City Attorney Dated: CITY OF NEWPORT BEACH, APPLICANT 11 Mayor • 0 0 0 By: Authorized Agent APPROVED AS TO FORM: Legal Counsel for 12 n U 0 0 Exhibit "A" 0 Legal Description of the Property • 13 9 0 0 Exhibit "B" L, 14 0 0 Exhibit "C" I* I] 15 • Exhibit "D" • • 16 Exhibit "E" LJ 0 17