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Home My WebLink AboutC-3500 - CIOSA Affordable Housing Implementation Agreement• CIOSA AFFORDABLE HOUSING IMPLEMENTATION AGREEMENT This CIOSA AFFORDABLE HOUSING IMPLEMENTATION AGREEMENT ("Agreement ") is entered into this ea- day of )%(LL , 2004, by and between the City of Newport Beach, California, a municipal corporation and charter city ( "City "), and The Irvine Company, a Delaware corporation ( "Company "). City and Company are sometimes collectively referred to as the Parties. RECITALS A. The Parties entered into a development agreement dated June 30, 1993 commonly referred to as the Circulation Improvement and Open Space Agreement ( "CIOSA "). CIOSA was approved by the California Coastal Commission ( "Coastal Commission ") in June 1993. B. CI`,OSA is a development agreement that authorized the construction of existing general plan entitlement on various parcels owned by the Company in consideration of the Company's commitment to advance funds for major public improvements and the dedication of parcels owned by the Company for open space and recreational purposes. C. The Parties have, in the past, disagreed as to whether the Company was obligated to provide affordable housing pursuant to: (i) CIOSA, (ii) the City's Housing Element and /or (iii) the discretionary approvals granted by the City for each residential project encompassed in CIOSA. 1 D. The Parties intend, through this Agreement, to confirm that Company's satisfaction of its duties pursuant to this Agreement will satisfy any and all obligations the Company may have to provide affordable housing based on the development authorized by CIOSA, the provisions of the Housing Element of the City and /or the discretionary approvals granted by the City for each residential project encompassed in CIOSA. E. CIOSA and related City planning documents (such as the Land Use Element and Ordinance NO. 92 -38 - the Bayview Landing Planned Community District Regulations) provide for the transfer of thirty thousand (30,000) square feet of general retail use ( "Entitlement") from Lower Bayview Landing (the "Property") to Newport Center - Fashion Island upon commitment of the Property for senior affordable housing. NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS: 1. AFFORDABLE HOUSING OBLIGATION. For purposes of this Agreement, the term "affordable housing obligation" shall mean a y affordable housing obligation resulting from: (a) CIOSA; (b) the provision's of the Housing Element as applied to CIOSA; (c) the provisions of the Housing Element as applied to any discretionary approval granted by the City for any parcel or property described in CIOSA; (d) any discretionary approval granted by the City for any parcel or property described in CIOSA; or (e) to any construction of residential units on any parcel or property described in CIOSA. City and the Company each acknowledge the other's position with respect to whether the Company has any affordable housing obligation as that term is defined in this Agreement. E 0 2. SATISFACTION OF ANY AFFORDABLE HOUSING OBLIGATION. The Company shall have satisfied any affordable housing obligation if: (a) within five (5) years after the date of this Agreement no less than one hundred and twenty (120) senior affordable housing units are constructed on the Property; or (b) Company dedicates the Property, in fee, to the City within ninety (90) days after the expiration of the five (5) year period specked in subsection (a). 3. TRANSFER OF ENTITLEMENT This Agreement confirms the transfer of 30,000 square feet of Entitlement from the Property to Newport Center - Fashion Island. City shall process all applications of Company relative to the transfer of the Entitlement from Newport Center - Fashion Island to any other parcel in a manner consistent with the terms of this Agreement and relevant provisions of the Land Use Element and the Newport Beach Municipal Code. 4. COOPERATION. City and Company acknowledge that the development of senior affordable housing on the Property is subject to various permits and conditions. The ,,Parties agree to use their respective best efforts to ensure that all such permits are issued on a timely basis and that all such conditions are fully satisfied as soon as reasonably feasible. City and Company agree to execute all documents that may be necessary to achieve the purposes and objectives of this Agreement. City acknowledges that Company does not intend to develop the Property itself, rather, intends to lease the Property to a third party experienced in the development of affordable housing and that the third party (and not Company) will be responsible for obtaining permits and satisfying the conditions of the development. Nothing in this paragraph shall be deemed to require Company to commence litigation with any third party. 3 0 0 5. SPECIFIC PERFORMANCE The Parties acknowledge that money damages and remedies at law would be inadequate to remedy any failure of Company or City to comply with its obligations pursuant to this Agreement due to the nature and scope of those obligations and the inherent difficulty in restoring either such Party to the condition it was in prior to this Agreement. Accordingly, with respect to any breach of this Agreement, the sole and exclusive remedy shall be specific performance. 6. FORCE MAJEURE. Neither Party shall be deemed to be in default where failure or delay in performance of any of its obligations pursuant to this Agreement is caused, through no fault of the Party whose performance is prevented or delayed, by floods, earthquakes, other Acts of God, fires, wars, riots or similar hostilities, strikes or other labor difficulties, State or Federal regulations, court actions or the delay in performance of the other Party. Except as specified above, the failure t11q perform shall not be excused because of the act or omission of a third person. 7. NOTICES. Any notice or demand which is required or permitted by law or any provision of this Agreement shall be in writing and may be personally delivered to the Party or deposited in the United States mail, certified, return receipt requested, postage prepaid, or shall be delivered by overnight courier, overnight courier charges prepaid, and addressed as follows: 4 0 0 TO CITY: City of Newport Beach 3300 Newport Boulevard Post Office Box 1768 Newport Beach, California 92663 -3884 Attn: City Manager With a copy-lo: City Attorney City of Newport Beach 3300 Newport Boulevard Post Office Box 1768 Newport Beach, California 92663 -3884 TO COMPANY: The Irvine Company 550 Newport Center Drive Newport Beach, California 92660 -0015 Attn: General Counsel Notice.. shall be deemed given upon the earlier of the date received or three (3) busines� days after deposit in the mail as specified above. 8. CONSTRUCTION. (a) Waiver. Failure by a Party to insist upon the strict performance of any of the provisions of this Agreement by the other Party, and failure by a Party to exercise its rights upon a default by the other Party shall not constitute a waiver of that Party's right to demand strict compliance by the other Party in the future. (b) Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be identical and may be introduced in evidence or used for any other purpose without any other counterpart, 5 0 but all of which shall together constitute one and the same Agreement. (c) Entire Agreement. This Agreement constitutes the entire agreement and supersedes all prior written and /or oral agreements and understandings between City and Company regarding the subject of this Agreement. (d) Severability. If any provision of this Agreement or its application to any party or circumstances is held invalid or unenforceable to any extent, the remainder of this Agreement and the application of any provision to any party other than that held invalid or unenforceable shall not be affected. (e) Construction. The Parties are sophisticated entities represented by independent counsel throughout the negotiations and discussions leading to execution. City and Company each agree and acknowledge that the terms of this Agreement are fair and reasonable, taking into account their respective purposes, terms and conditions. Accordingly, this Agreement shall be construed in accordance with its fair meaning and no presumption of contract construction or interpretation shall apply to either Party. (i) No Third Party Beneficiaries. This Agreement is not intended and shall not be construed to benefit, or be enforceable by, any other person or entity. (g) Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the State of California. (h) Section Headings. All Section headings and subheadings are inserted for convenience only and do not affect any construction or interpretation of this Agreement. 9 (i) Attorneys' Fees. In the event either Party commences a legal action to enforce this Agreement, or any of the terms of this Agreement, the prevailing Party in such legal action shall be entitled to recover all of its attorneys' fees, costs and expenses incurred therein. THE IRVINE COMPANY, a Delaware corporation By: Daniellt. Young Its: Group Senior Vice President By: M�UVI Mary K. Westbrook Its: assistant Secretary CITY OF NEWPORT BEACH, A Municipal orporation By: Homer Bliddau AS TO FORM: H. Burnham City Attorney 7