HomeMy WebLinkAbout2012-3 - Approving Development Agreement No. DA2008-001 for the Newport Beach Country Club Property Located at 1600 and 1602 East Coast Highway (PA2005-140)ORDINANCE NO. 2012 -3
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
NEWPORT BEACH APPROVING DEVELOPMENT AGREEMENT
NO. DA2008 -001 FOR THE NEWPORT BEACH COUNTRY CLUB
PROPERTY LOCATED AT 1602 EAST COAST HIGHWAY
(PA2005 -140)
THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS:
SECTION 1. STATEMENT OF FACTS.
1. An application was filed by Golf Realty Fund, with respect to property located at 1600 &
1602 East Coast Highway and legally described as Parcels 1 and 3 of Parcel Map No.
79 -704 and Parcel 1 and Parcel 2 of Parcel Map 94 -102, requesting an approval to
redevelop the existing private Golf Club and Tennis Club Sites of the Newport Beach
Country Club. The application included the following requests:
a. A Planned Community Development Plan adoption to provide development
standards and design guidelines for the Golf Club and Tennis Club Sites and
their ancillary uses, pursuant to Chapter 20.63 of the Municipal Code.
b. A Transfer of Development Rights to transfer 27 hotel units from Anomaly No.
43 (Newport Beach Marriott Hotel and Spa site) to Anomaly No. 46 (the Tennis
Club site), pursuant to General Plan Land Use Policies LU4.3 and LU6.14.3.
C. A Site Development Review to allow the construction of 35,000 square -foot golf
clubhouse and parking lot, twenty -seven (27) hotel units with a 2,170 square -
foot concierge and guest meeting facility and a 7,490 square -foot spa /fitness
center, five (5) single -unit residential dwellings, a 3,725 square -foot tennis
clubhouse, and seven (7) tennis courts including one lighted stadium - center
tennis court, pursuant to the Section 4.3 of the Newport Beach Country Club
Planned Community Development Plan.
d. A Vesting Tentative Tract Map to create separate lots for five (5) single -unit
residential dwellings, twenty -seven (27) hotel units, tennis facility, lettered lots
for common areas and a private street, pursuant to Title 19 of the Municipal
Code.
e. A Limited Term Permit (Temporary Structures and Uses) to allow temporary use
of structures during construction pursuant to Section 20.60.015 of the Municipal
Code.
f. A Development Agreement pursuant to Section 15.45.020.A.2.c of the
Municipal Code which requires a development agreement as the project
includes a zoning code amendment and new non - residential development in
Statistical Area L1 (Newport Center /Fashion Island) and General Plan Land
Use Policy LU6.14.8 which requires a development agreement since the
City Council Ordinance No. 2012 -3
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proposed project is a mixed -use development project and the proposed five (5)
single - family units will be drawn from the 450 residential units allocated for the
Newport Center /Fashion Island.
2. The application was deemed complete on November 5, 2009; and pursuant to Ordinance
No. 2010 -21, the application is being considered and evaluated pursuant to the Zoning
Code in effect prior to November 25, 2010.
3. The Planning Commission held public hearings on August 4, 2011 and October 20,
2011, and November 17, 2011. At the November 17th hearing with a vote of 3 -2, the
Planning Commission adopted Resolution No. 2011 -1861, recommending the City
Council to:
a. Adopt Mitigated Negative Declaration No. ND2010 -008, an Errata to the Mitigated
Negative Declaration, and the Mitigation Monitoring and Reporting Program;
b. Approve Planned Community Development Plan No. PC2005 -002, as proposed
by staff, for the entire project site which includes the Golf Club and Tennis Club
sites;
C. Approve a conversion of 17 tennis courts to 27 hotel units and deny Transfer of
Development Rights No. TD2010 -003;
d. Approve Site Development Review No. SD2011 -002 and Limited Term Permit
No. XP2011 -004, as proposed by the applicant, for the improvements to the
Tennis Club portion of the project site. The approval of Site Development
Review No. SD2011 -002 did not include the Golf Club site as proposed by the
applicant, but it was reserved for future consideration;
e. Approve Vesting Tentative Tract Map No. NT2005 -003 as proposed by the
applicant; and
f. Approve of Development Agreement No. DA2008 -001.
4. The City Council conducted a public hearing on January 24, 2012, in the City Hall
Council Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of
time, place and purpose of the meeting was given in accordance with the Newport
Beach Municipal Code. Evidence, both written and oral, was presented to, and
considered by, the City Council at this meeting. At the conclusion of the hearing, the
City Council approved the project as recommended by the Planning Commission.
5. On February 14, 2012, the City Council granted a continuance of the second reading
of the ordinances approving Planned Community Development Plan No. PC2005 -002
and Development Agreement No. DA2008 -001 to February 28, 2012, as requested by
the applicant.
City Council Ordinance No. 2012 -3
Page 3 of 7
6. On February 14, 2012, the City Council re- introduced Ordinance No. 2012 -004
approving Planned Community Development Plan No. PC2008 -001, submitted by the
Newport Beach Country Club, Inc. to provide development standards and design
guidelines for the Golf Club site located at 1600 East Coast Highway.
7. Subsequent to the City Council's action on February 14, 2012, the applicant presented
the following requests:
a. Modify the Development Agreement to apply only to the new development on
the Tennis Club site located at 1602 East Coast Highway;
b. Approve an alternative site plan (Alternative Site Plan) for the Golf Club site
located at 1600 East Coast Highway and acknowledge that the Alternative Site
Plan would not be "vested" by the Development Agreement.
8. The applicant's additional requests required the City Council to take action to
reconsider its approval of the Site Development Review application on January 24,
2012, since any alternative site plan approval must be considered as part of that
application.
9. On February 28, 2012, the City Council took the following actions:
a. Continued consideration of Ordinance No. 2012 -2 approving Planned
Community Development Plan No. PC2005 -002 to March 13, 2012.
b. Waived City Council Policy A10 regarding "Voting Procedures - Reconsideration"
in order to reconsider Resolution No. 2012 -10 approving Site Development
Review No. SD2011 -002 on March 13, 2012.
C. Continued consideration of Ordinance No. 2012 -3 approving Development
Agreement No. DA2008 -001 to March 13, 2012.
10. On February 28, 2012, the City Council adopted Ordinance No. 2012 -004 approving
Planned Community Development Plan No. PC2008 -001 as proposed by NBCC, Inc.
for the Golf Club site located at 1600 East Coast Highway.
11. The City Council held public hearing on March 13, 2012, in the City Hall Council
Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time, place
and purpose of the meeting was given in accordance with the Newport Beach
Municipal Code. Evidence, both written and oral, was presented to, and considered by,
the City Council at this meeting.
SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION.
City Council Ordinance No. 2012 -3
Paqe 4 of 7
1. An Initial Study and Mitigated Negative Declaration have been prepared in compliance
with the California Environmental Quality Act (CEQA), the State CEQA Guidelines,
and City Council Policy K -3.
2. The Mitigated Negative Declaration, an Errata to the Mitigated Negative Declaration,
and Mitigation Monitoring and Reporting Program were adopted by City Council on
January 24, 2012, by adopting certain CEQA determinations containing within
Resolution No.2012 -9, which are hereby incorporated by reference.
3. The City Council finds that judicial challenges to the City's CEQA determinations and
approvals of land use projects are costly and time consuming. In addition, project
opponents often seek an award of attorneys' fees in such challenges. As project
applicants are the primary beneficiaries of such approvals, it is appropriate that such
applicants should bear the expense of defending against any such judicial challenge,
and bear the responsibility for any costs, attorneys' fees, and damages which may be
awarded to a successful challenger.
SECTION 3. FINDINGS
1. According to General Plan Land Use Element Policy LU6.14.8, a development
agreement is required since the proposed project is a mixed -use development project
and the proposed five (5) single - family units will be drawn from the 450 residential
units allocated for the Newport Center /Fashion Island. Furthermore, Municipal Code
Section 15.45.020.A.2.c (Development Agreement Required) requires a development
agreement as the project includes a zoning code amendment and new non - residential
development in Statistical Area L1 (Newport Center /Fashion Island). The development
agreement includes all the mandatory elements for consideration and includes public
benefits that are appropriate to support conveying the vested development rights.
2. Consistent with Government Code Section 65867.5, the Development Agreement
provides vested rights and public benefits for the proposed development which is
consistent with the General Plan based on the following findings:
a. The project site is located within Newport Center /Fashion Island. The Land Use
Element of the General Plan designates Tennis Club site as Mixed Use
Horizontal 3 /Park and Recreation (MU- H3 /PR).
The MU -H3 /PR designation on the Tennis Club site provides for the horizontal
intermixing of regional commercial office, hotel, single - family and multi - family
residential and ancillary commercial uses. The PR designation allows active
public or private recreational uses including parks (both active and passive),
golf courses, marina support facilities, aquatic facilities, tennis clubs and courts,
private recreation, and similar facilities.
b. The General
Plan limits total development at the Tennis
Club site to
3,725
square feet
and 24 tennis courts for Anomaly No. 46.
Residential is also
permitted, in
accordance with MU -H3 /PR designation.
The existing
3,725
City Council Ordinance No. 2012 -3
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square -foot tennis clubhouse will be replaced with a new tennis clubhouse of
the same square footage. The five (5) single -unit dwellings will be drawn from
the maximum 450 dwelling units that are allowed in the Newport
Center /Fashion Island Statistical Area (there are unallocated 20 units remaining
at this time).
d. In order to accommodate the development of the proposed 27 hotel -unit
development (bungalows), 17 tennis courts shall be converted to 27 hotel units.
The General Plan provides for additional retail opportunities at Fashion Island
and hotel rooms and housing units in Newport Center and the proposed
conversion does not require a general plan amendment. The proposed
conversion revitalizes an area wherein the General Plan encourages hotel
development.
3. As Planned Community Development Plan No. PC2005 -002 has been modified to
provide use and zoning development standards for the Tennis Club site only, the
Development Agreement is thereby adjusted to provide vested rights and public
benefits for the Tennis Club site only.
SECTION 4. DECISION.
THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH DOES HEREBY ORDAIN AS
FOLLOWS:
1. The Development Agreement shall be adopted as depicted in Exhibit "A" attached
hereto and incorporated by reference, for the development on the Tennis Club site.
2. If any section, subsection, sentence, clause or phrase of this ordinance is, for any
reason, held to be invalid or unconstitutional, such decision shall not affect the validity
or constitutionality of the remaining portions of this ordinance. The City Council hereby
declares that it would have passed this ordinance, and each section, subsection,
clause or phrase hereof, irrespective of the fact that any one or more sections,
subsections, sentences, clauses and phrases be declared unconstitutional.
3. This action shall become final and effective thirty days after the adoption of this
Ordinance.
4. The Mayor shall sign and the City Clerk shall attest to the passage of this Ordinance.
This Ordinance shall be published once in the official newspaper of the City, and the
same shall become effective thirty (30) days after the date of its adoption.
City Council Ordinance No. 2012 -3
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This Ordinance was introduced at a regular meeting of the City Council of the City of Newport
Beach held on the 13th of March, 2012, and adopted on the 27th day of March, 2012, by the
following vote, to wit:
AYES, COUNCIL MEMBERS Henn, Rosansky, Hill, Daigle, Selich, Curry
NOES, COUNCIL MEMBERS Gardner
ABSENT, COUNCIL MEMB
Al
Leilani Brown, City Clerk
APPROVED
,S TO FORM,
��7OF CITY ,)ATTORNEY:
-A ron Harp, City Attorney 1 2'51I Z
for the City of Newport Bea h
City Council Ordinance No. 2012 -3
Page 7 of 7
: i1:11 -3ti -,M
DEVELOPMENT AGREEMENT
RECORDING REQUESTED BY
AND WHEN RECORDED RIiTURN'1 *0:
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92663 -3884
Attn: City Clerk
(Space Above This Line Is for Recorder's Use
This Agreement is recorded at the request and for
the benefit of the City of Newport Beach and is
exempt from the payment o1' a recording fee
pursuant to Government Code §§ 6103 and 27383.
DEVEILOPMENT AGREEMENT
betiveeu
CITE' OIL ME, WPORT BEACH
and
GOLF REALTY FUND
CONCERNING PROPERTIES LOCATED IN NEWPORT CENTER
WITHIN THE
NEWPORT BEACII COUNTRY CLUB PLANNED COMMUNITY DISTRICT
A10-00773 03.07.12A
45
DEVELOPMENT AGREEMENT
(Pursuant to California Government Code Sections 65864 - 65869.5)
This DEVELOPMENT AGREEMENT (the "Agreement') is dated for reference
purposes as of the _ day of 2012 (the "Agreement Dale"), and is being entered
into by and between the City of Newport Beach ( "Cif'), and Golf Realty Fund, a California
limited partnership "Property Owner" ). City and Property Owner are sometimes collectively
referred to in this Agreement as the "Parties" and individually as a "Party."
RECITALS
A. Property Owner is the managing owner of and owns a fee interest in title to that
certain real property located in the: City of Newport Beach, County of Orange, State of California
which is more particularly described in the legal description attached as Exhibit "A" and
depicted on the site map attached hereto as Exhibit B (the, "Property "). The Property consists of
approximately 7 acres within the area shown on the City's Zoning Map as the Newport Beach
Country Club Planned Community District. The Property comprises the area shown on Exhibit
B as The Villas Sub - Area, The Tennis Club Sub -Area, and The Bungalows Sub -Area.
B. In order to encourage investment in, and commitment to, comprehensive planning
and public facilities financing, strengthen the public: planning process and encourage private
implementation of the local general plan, provide certainty in the approval of projects in order to
avoid waste of time and resources, and reduce the economic costs of development by providing
assurance to property owners that they may proceed with projects consistent with existing land
use policies, miles, and regulations, the California Legislature adopted California Government
Code sections 65864 - 65869.5 (tile "Development Agreement Statute ") authorizing cities and
counties to enter into development agreements with persons or entities having a legal or
equitable urlerc:st in real property located within their jurisdiction.
C. On March 13, 2007,-the City Council adopted Ordinance No. 2007 -6, entitled
"Ordinance Amending Chapter 15.45 of City of Newport Beach Municipal Code Regarding
Development Agreements" (the "Development Agreement Ordinance'). This Agreement is
consistent with the Development Agreement Ordinance.
D. As detailed in Section 3 of this Agreement, Property Owner has agreed to provide
the following significant public benefits as consideration for this Agreement: Visitor- Serving
Uses within the Coastal Zone, and other economic contributions including the payment of a
Public Benefit Pee.
F. This Agreement is consistent with the City of Newport Beach General Plan
("General Plan"), including without limitation the General Plan's designation of the Property as
"MU- H3/PR" (Mixed Use Horizontal /(Parks and Recreation) (Anomaly 46), the Coastal Land
Use Plan's designation as "MU -H/PR (Mixed Use Horizontal / Parks & Recreation ", the
Newport Beach Country Club Planned Community District that was adopted in 1997 by
Ordinance No. 97 -10 in order to establish appropriate zoning to regulate land use and
development of the Properly consistent with the General Plan, and the Newport Beach Country
Club Planned Community Development Plan No PC2005 -002 approved for the Property on
March 27, 2012 by Ordinance No. _
A 1000773 A 01.06.11 FINAL -I-
M002
F. In recognition of the significant public benefits that this Agreement provides, the
City Council has found that this Agreement: (i) is consistent with the City of Newport Beach
General Plan as of the date of this Agreement; (ii) is in the best interests of the health, safety, and
general welfare of City, its residents, and the public; (iii) is entered into pursuant to, and
constitutes a present exercise of, City's police power; (iv) is consistent and has been approved
consistent with the Final F..nviromnental Impact Report for the City of Newport Beach General
Plan 2006 Update (State Clearinghouse No. 2006011119) and the Mitigated Negative
Declaration No. ND2010 -008 for the Newport Beach Country Club Planned Community District
(PA ) approved by the City Council on or before the Agreement Date, both of
which analyze the envirormnental effects of the proposed development of the Project on the
Property; and (v) is consistent and has been approved consistent with provisions of Calitornia
Government Code section 65867 and City of Newport Beach Municipal Code chapter 1 S.4:5.
G. On October 20, 2011 and November 17, 2011 , City's Planning Commission held
public hearings on this Agreement, and on November 17, 2011, made findings and
determinations with respect to this Agreement, and recommended to the City Council that the
City Council approve this Agreement.
1-1. On January 24, 2012 and March 13, 2012 , the City Council also held public
hearings on this Agreement and considered the Planning Commission's recommendations and
the testimony and information submitted by City staff, Properly Owner; and members of the
public. On March 27, 2012 , consistent with applicable provisions of the Development
Agreement Statute and Development Agreement Ordinance, the City Council adopted its
Ordinance No. 2012 -3 (the "Adopting Ordinance "), finding this Agreement to be consistent with
the City of Newport Beach Gencral Plan and approving this Agreement.
AGREEMENT
NOW, THEREFORE, City and Property Owner agree as follows:
Definitions.
In addition to any terns defined elsewhere in this Agrcentent, the following terms when
used in this Agreement shall have the meanings set forth below:
"Action" shall have the meaning ascribed in Section 8.10 of this Agreement.
"Adopting Ordinance" shall mean City Council Ordinance No. 2012 -3 approving and
adopting this Agreement.
"Agreement'' shall mean this Development Agreement, as the same may be amended
from time to time.
"Agreement Date" shall mean March 27, 2012, which date is the date the City Council
adopted the Adopting Ordinance.
"CEO A" shall mean the California Enviromnental Quality Act (California Public
Resources Code Sections 21000 - 21177) and the implementing regulations promulgated
A10.00773 A 01.06,11 FINAL 2
47
thereunder by the Secretary for Resources (California Code of Regulations, Title 14, section
15000 el seq.) ( "CEQA Guidelines "), as the same may be amended from time to time.
"City" shall mean the City of Newport Beach, a California charter city.
"City Council" shall mean the governing body of City.
"C_itv's Affiliated Parties" shall have the meaning ascribed in Section 10.1 of this
Agrecment.
"Claim" shall have the meaning ascribed in Section 10.1 of this Agreement.
"CPI Index" shall mean the Consumer Price Index published from time to time by the
United States Department of Labor for all urban consumers (all items) for the smallest
geographic area that includes the City or, if such index is discontinued, such other similar index
as may be publicly available that is selected by City in its reasonable discretion.
"Cure Period" shall have the meaning ascribed in Section 8.1 of this Agreement.
"Default" ~hall have the meaning ascribed to that term in Section 8.1 of this Agreement.
"Develop" or "Devql�oment" shall mean to improve or the improvement of the Property
for the purpose of completing the structures, improvements, and facilities comprising the Project,
including but not Ihnited to: grading; the construction of infrastructure and public facilities
related to the Project, whether located within or outside the Property; the construction of all of
the private improvements and facilities comprising the Project; the preservation or restoration, as
required of natural and man -made or altered open space areas; and the installation of
landscaping. The terms "Develop" and "Development," as used herein, do not include the
maintenance, repair, reconstruction, replacement, or redevelopment of any structure,
improvement, or facility after the initial construction and completion thereof.
" Development Agreement Ordinance" shall mean Chapter 15.45 of the City of Newport
Beach Municipal Code.
"Development Agreement Statute" shall mean California Government Code Sections
65864 - 65869.5, inclusive.
"Development Exactions" shall mean any requirement of City in connection with or
pursuant to any ordinance, resolution, rule, or official policy for the dedication of laird, the
construction or installation of any public improvement or facility, or the payment of any fee or
charge in order to lessen, offset, mitigate, or compensate for the impacts of Development of the
Project on the environment or other public interests.
"Development Plan" shall mean the Newport Beach Planned CommunityDevelopment
Plan No. PC2005 -002 for the Property adopted by Ordinance No. 2012 -2, Vesting Tentative
Tract Map No. NT2005 -003, Site Development Review No. SD2011 -002 as approved by
Resolution No. 2012 -10 for the Property, Limited Terns Permit No. XP2011 -004, and
A10.00773 A01.06.11 WNAL
Conversion of Development Rights as approved by City Council on or before the Agreement
Date, as the same may be amended from time to time consistent with this Agreement.
"Development Regulations" shall mean the following regulations as they are in effect as
of the Agreement Date and to the extent they govern or regulate the development of the Property,
but excluding any amendment or modification to the Development Regulations adopted,
approved, or imposed after the Agreement Date that impairs or restricts Property Owner's rights
set forth in this Agreement, unless such amendment or modification is expressly authorized by
this Agreement or is agreed to by Property Owner in writing: the General Plan; the Development
Plan; and, to the extent not expressly superseded by the Development flan or this Agreement, all
other land use and subdivision regulations governing the permitted uses, density and intensity of
use, design, improvement, and construction standards and specifications, procedures for
obtaining required City permits and approvals for development, and similar matters that may
apply to development of the Project on the Property during the Term of this Agreement that are
set forth in Title IS of the Municipal Code (buildings and construction), Title 19 of the
Municipal Code (subdivisions), and Title 20 of the Municipal Code (planning and zoning), but
specifically excluding all other sections of the Municipal Code, including without limitation Tide
5 of the Municipal Code (business licenses and regulations). Notwithstanding the foregoing, the
term "Development Regulations," as used herein, does not include any City ordinance,
resolution, code, rule, regulation or official policy governing any of the following: (i) the
conduct of businesses, professions, and occupations; (ii) taxes and assessments; (iii) the control
and abatement of nuisances; (iv) the granting of encroachment permits and the conveyance, of
rights and interests which provide fbr the use of or the entry upon public propetty; or (v) the
exercise of tite power of eminent domain.
"Effective Date" shall mean the latest of the following dates, as applicable: (i) the date
that is thirty (30) days after the Agreement Date; (ii) if a referendum concerning the Adopting
Ordinance or any of the Development Regulations approved on or before the Agreement Date is
timely qualified for the ballot and a referendum election is held concerning the Adopting
Ordinance or any of such Development Regulations, the date on which the referendum is
certified resulting in upholding and approving the Adopting Ordinance and such Development
Regulations and becomes effective, if applicable; (iii) if a lawsuit is timely filed challenging the
validity or legality of tine Adopting Ordinance, this Agreement, and /or any of the Development
Regulations approved on or before the Agreement Date, the date on which said challenge is
finally resolved in favor of the validity or legality of the Adopting Ordinance, this Agreement,
and/or the applicable Development Regulations, whether such finality is achieved by a final non-
appealable judgment; voluntary or involuntary dismissal (and the passage of any time required to
appeal an involuntary dismissal), or binding written settlement agreement; or (iv) the date of
approval of a coastal development permit for the Project; (v) the date of or if a lawsuit is tunely
filed challenging the validity or legality of the approval of a coastal development permit for the
Project, the date on which said challenge is finally resolved in favor of the validity or legality of
the coastal development permit for the Project, whether such finality is achieved by a final non-
appealable judgment, voluntary or involuntary dismissal (and the passage of any time required to
appeal an involuntary dismissal), or binding written settlement agreement. Notwithstanding the
foregoing, the Effective Date shall be no later than one hundred eighty (180) days fiom the
Agreement Date. Promptly after the Effective Date occurs, the Parties agree to cooperate in
causing an appropriate instrument to be executed and recorded against the Property
memorializing the Effective Date.
A10-00773 v401.06.11 FINAL 4
�:9
"Environmental Laws" means all federal, state, regional, county, municipal, and local
laws, statutes, ordinances, rules, and regulations which are in effect as of the Agreement Date,
and all federal, state, regional, county, municipal, and local laws, statutes, rules, ordinances,
rules, and regulations which may hereafter be enacted and which apply to the Property or any
part thereof, pertaining to the use, generation, storage, disposal, release, treatment, or removal of
any Hazardous Substances, including without limitation the following: the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. Sections 9601,
et seq., as amended ( "CERCLA "); the Solid Waste Disposal Act, as amended by the Resource
Conservation and Recovery Act of 1976, 42 U.S.C. Sections 6901, et s2q., as amended
( "RCRA "); the Emergency Planning and Community Right to Know Act of 1986, 42 U.S.C.
Sections 11001 et see., as amended; the Iazardous Materials Transportation Act, 49 U.S.C.
Section 1801, et M., as amended; the Clean Air Act, 42 U.S.C. Sections 7401 et sect., as
amended; the Clean Water Act, 33 U.S.C. Section 1251, eta., as amended; the `toxic
Substances Control Act, 15 U.S.C. Sections 2601 et sea., as amended; the Federal Insecticide,
Fungicide and Rodenticide Act, 7 U.S.C. Sections 136 et seq., as amended; the Federal Safe
Drinking Water Act, 42 U.S.C. Sections 300f et seq., as amended; the Federal Radon and Indoor
Air Quality Research Act, 42 U.S.C. Sections 7401 el sea., as amended; the Occupational Safety
and Health Act, 29 U.S.C. Sections 651 et seq., as amended; and California Health and Safety
Code Section 25100, et seq.
"General Plan" shall mean City's 2006 General Plan adopted by the City Council on July
25, 2006, by Resolution No. 2006 -76, as amended through the Agreement Date but excluding
any amendment after the, Agreement Date that impairs or restricts Property Owner's rights set
forth in this Agreement, unless such amendment is expressly authorized by this Agreement, is
authorized by Sections 8 or 9, or is specifically agreed to by Property Owner. The Land Use
Plan of the Land Use Element of the General Plan was approved by City voters in a general
election on November 7, 2006.
"Hazardous Substances" means any toxic substance or waste, pollutant, hazardous
substance or waste, contaminant, special waste, industrial substance or waste, petroleum or
petroleum - derived substance or waste, or any toxic or hazardous constituent or additive to or
breakdown component from any such substance or waste, including without limitation any
substance, waste, or material regulated under or defined as "hazardous" or "toxic" under any
Environmental Law.
"Moteage" shall mean a mortgago, deed of trust, sale and leaseback arrangement, or any
other fora of conveyance in which the Property, or a part or interest in the Property, is pledged
as security and contracted for in good faith and for fair value.
" Mortgagee" shall mean the holder of a beneficial interest under a Mortgage or any
successor or assignee of the Mortgagee.
"Notice of Default" shall have the meaning ascribed in Section 8.1 of this Agreement.
"Party" or "Parties" shall mean either City or Property Owner or both, as determined by
the context.
AI0-00773 vA 01.06.11 FINAL 5
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"Project" shall mean all on -site and off -site improvements that Property Owner is
authorized and/or may be required to construct with respect to each parcel of the Property, as
provided in this Agreement and the Development Regulations, as the same may be modified or
amended from time to time consistent with this Agreement and applicable law.
"Property" is described in Exhibit A and generally depicted on Exhibit B as The Tennis
Club, The Villas, and h'Irc Bunt -alows Sub -Areas shown on Exhibit B..
"Property Owner" shall mean Golf Realty Fund, a California limited partnership and any
successor or assignee, including lessees, to all or any portion of the right, title, and interest of
Golf Realty Fund in and to ownership of all or a portion of the Property.
"Public Benefit Fee" shall have the meaning ascribed in Section 3.1 of this Agreement.
"Subs went Development Approvals" shall mean all discretionary development and
building approvals that Property Owner is permitted to obtain to Develop the Project on and with
respect to the Property after the Agreement Date consistent with the Development Regulations.
"Term" shall have the meaning ascribed in Section 2.4 of this Agreement.
"Termination Date" and "Lot Termination Date" shall have the meaning ascribed in
Section 2.4 of this Agreement.
"Transfer" shall have the meaning ascribed in Section 1 l of this Agreement.
2. General Provisions.
2.1 Phu-1 Consistenov Zoning Implementation.
This Agreement and the Development Regulations applicable to the Property are
consistent with the General Plan.
2.2 Binding Effect of Agreement.
The Property is hereby made subject to this Agreement. Development of the Property is
hereby authorized and shall be carried out in accordance with the terms of this Agreement.
2.3 Propel Owner Renresentations and Warranties Regarding Ownership of the
Property and Related Matters Pertaining to this Agreement,
Property Owner and each person executing this Agreement on behalf of Property Owner
hereby represents and warrants to City as follows: (i) Property Owner or any co-owner
comprising Property Owner is a legal entity and that such entity is duly formed and existing and
is authorized to do business in the State of California; (ii) if Property Owner or any co-owner 0
comprising Property Owner is a natural person that such natural person has the legal right and
capacity to execute this Agreement; (iii) that all actions required to be taken by all persons and
entities comprising Property Owner to enter into this Agreement have been taken and that
AID-00773 001.06.11 FINAL 6
152
Property Owner has the legal authority to enter into this Agreemcnt; (iv) that to the best of
Property Owner's knowledge, Property Owner's entering into and performing its obligations set
forth in this Agreement will not result in a violation of any obligation, contractual or otherwise,
that Property Owner or any person or entity comprising Property Owner has to any third party;
(v) that neither Property Owner nor any co -owner comprising Property Owner is the subject of
any voluntary or involuntary petition in bankruptcy; and (vi) that to the best of Property Owner's
knowledge, Property Owner has the authority and ability to enter into or perform any of its
obligations set forth in this Agreement.
2.4 Term.
The term of this Agreement (the "Tenn ") shall commence on the Effective Date and shall
terminate on the "Termination Date."
Notwithstanding any other provision set forth in this Agreement to the contrary, if either
Party reasonably detennines that the Effective Date of this Agreement will not occur because (i)
the Adopting Ordinance or any of the Development Regulations approved on or before the
Agreement Date for the Project has/havc been disapproved by City's voters at a referendum
election or (ii) a final non - appealable judgment is entered in a judicial action challenging the
validity or legality of the Adopting Ordinance, this Agreement, a coastal development permit for
the Project and /or any of the Development Regulations for the Project approved on or before the
Agreement Date such that this Agreement and /or any of such Development Regulations Ware
invalid and unenforceable in whole or in such a substantial part that the judgment substantially
impairs such Party's rights or substantially increases its obligations or risks hereunder or
thereunder, then such Party shall have the right to terminate this Agreement upon delivery of a
written notice of termination to the other Party, in which event neither Party shall have any
further rights or obligations hereunder except that Property Owner's indemnity obligations set
forth in Article 10 shall remain in full force and effect and shall be enforceable, and the
Development Regulations applicable to the Project and the Property only (but not those general
Development Regulations applicable to other properties in the City) shall similarly be null and
void at such time,
The Termination Date shall be the earliest of the following dates: (i) the tenth (10th)
anniversary of the Effective Date, as said date may be extended in accordance with Section 5 of
this Agreement; (ii) such earlier date that this Agreement may be terminated in accordance with
Articles 5, 7, and/or Section 8.3 of this Agreement and /or Sections 65865.1 and/or 65868 of the
Development Agreement Stahrte; (iii) as to any separate legal lot within the Property (but not as
to the balance of the Property or the portion thereof that remains subject to this Agreement at
such time), upon the "Lot Termination Date" (defined below); or (iv) completion of the Project
in accordance with the terms of this Agreement, including Property Owner's complete
satisfaction, performance, and payment, as applicable, of all Development Exactions, the
issuance of all required final occupancy permits, and acceptance by City or applicable public
agency(ies) or private entity(ies) of all required offers of dedication.
As used herein, the tern "Lot Termination Date" for any separate legal lot within the
Property means the date on which all of the following conditions have been satisfied with respect
to said lot: (i) the lot has been finally subdivided and sold or leased (for a period longer than one
year), individually or in a "bulk" of four or fewer lots, to a member of the public or other
A10-00773 x401,06.11 FINAL 7
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ultimate user; (ii) a final Certificate of Occupancy or "Release of iJtilititi " has been issued for
the building or buildings approved for construction on said lot.
Notwithstanding any other provision set forth in this Agreement to the contrary, the
provisions set forth in Article 10 and Section 13.10 (as well as any other Property Owner
obligations set forth in this Agreement that are expressly written to survive the Termination
Date) shall survive the Termination Date of this Agreement.
3. Public Benefits.
3.1 Public Benefit Fee.
As consideration for City's approval and performance of its obligations set forth in this
Agreement, Property Owner shall pay to City a fee that shall be in addition to any other fee or
charge to which the Property and the Project would otherwise be subject (herein, the "Public
Benefit Fee ") in the sum of (i) Ninety -three thousandDollars ($ 93,000per each residential
dwelling units; and (ii) 1'en dollars ($10) per square foot of construction for the proposed golf
clubhouse]; and (iii) Tell dollars ($10) per square foot of construction to the proposed tennis
clubhouse, with the unpaid balance of said Public Benefit Fee increased on the first January 1
following the Effective Dade of this Agreement by the percentage increase in the CPI Index
between the Effective Date and said January 1" date (tile first "Adjustment Date ") and therenfler
with the unpaid balance of said Public Benefit Fee increase(] on each subsequent January 1
during the Term of this Agreement (each, an "Adjustment Date ") by the percentage increase in
the CPT Index in the year prior to the applicable Adjustment Date. The amount of the percentage
increase in the CPT Index on the applicable Adjustment Dates shall in each instance be calculated
based on the then most recently available CPI Index figures such that, for example, if the
Effective Date of this Agreement fill,; on Judy 1 and the most recently available CPI Index figure
on the first Adjustment Date (January 1 of the following year) is the CPI Index for November of
the preceding year, the percentage increase in the CPI Index for that partial year (a 6 -month
period) shall be calculated by comparing the CPI Index for November of the preceding year with
the CPI Index for May of the preceding year (a 6 -month period). hi no event, however, shall
application of the CPI Index reduce the amount of the Public Benefit Fee (or unpaid portion
thereon below the amount in effect prior to any applicable Adjustment Date. Property Owner
shall pay the Public Benefit Fee at the following time(s): (i) As to the residential dwelling units,
at the issuance of the building permit for each individual residential unit; and (ii) as to (lie golf
clubhouse and tenrds clubhouse construction, at the time each building permit is issued to
Property Owner or on Property Owner's behalf. Notwithstanding any other provision set forth in
this Agreement to the contrary, during the Term of this Agreement City shall not increase the
Public Benefit Fee except pursuant to the CPI Index as stated in this Section 3.1. The Public Fee
Benefit Fee shall be calculated based on the total square feet of construction for the proposed
golf clubhouse and proposed tennis clubhouse Property Owner shall not be entitled to any credit
or offset to the Public Benefit Fee for any existing buildings or structures. Property Owner
The City has entered into n separate Development Agreement with The Newport Beach Country Club, Inc.,
Development Agreement No. (the "NBCC DA'), pertaining to the development of a golf
clubhouse on the adjacent property. This requirement to pay a Public Benefit Fec for the construction of
the golf clubhouse shall not apply to Property Owner, unless Property Owner itself, or its successors or
assignees, is seeking issuance of permits for the coustrucUou of a golf clubhouse on the adjacent property.
AID -00773 v401.06.11 FINAL 8
53
ackrnowledges by its approval and execution of this Agreement that it is voluntarily agreeing to
pay the Public Benefit Fee, that its obligation to pay the Public, Benefit Fee is an essential term of
this Agreement and is not severable from City's obligations and Property Owner's vesting rights
to be acquired hereunder, and that Property Owner expressly waives any constitutional, statutory,
or cormrlon law right it might have in the absence of this Agreement to protest or challenge the
payment of such fee on any ground whatsoever, including without limitation pursuant to tine
Fifth and Fourteenth Amendments to the United States Constitution, California Constitution
Article I Section 19, the Mitigation Fee Act (California Government Code Section 66000 et
seq.), or otherwise. In addition to any other remedy set forth in this Agreement for Property
Owner's default, if Property Owner shall fail to timely pay any portion of the Public Benefit pee
when due City shall have the right to withhold issuance of any further building permits,
occupancy pemnits, or other development or building permits for the Project.
3.2 Other Public Benefits.
The development of the Project will include the addition of Visitor - Serving Uses
consistent with tine City's Coastal Land Use Plan and will provide a unique amenity for those
visitors whose interests include tennis. It is anticipated that the Property will continue to host
numerous events of significant social and econonic benefit to the City, its citizens, businesses
and charitable institutions.
4. Development of Project,
4.1 ApI licabie Regulations; Property Owner's Vested Rights and City's Reservation
of Discretion With Reject to Subsequent Development Approvals.
Other than as expressly set forth in this Agreement, during the Term of this Agreement,
(i) Property Owner shall have the vested right to Develop the Project on and with respect to the
Property in accordance with the terms of the Development Regulations and this Agreement and
(ii) City shall not prohibit or prevent development of (lie Property on grounds inconsistent with
the Development Regulations or this Agreement. Notwithstanding the foregoing, nothing herein
is intended to limit or restrict City's discretion with respect to (i) review and approval
requirements contained in the Development Regulations, (ii) exercise of any discretionary
authority City retains under the Development Regulations, (iii) the approval, conditional
approval, or denial of any Subsequent Development Approvals applied for by Property Owner,
or that are required, for Development of the Project as of the Agreement Date provided that all
such actions • are consistent with the Development Regulations, or (iv) any environmental
approvals that may be required under CEQA or any other federal or state law or regulation in
conjunction with any Subsequent Development Approvals that may be required for the Project,
and in this regard, as to future actions referred to in clauses (i) -(iv) of this sentence, City reserves
its full discretion to the same extent City would have such discretion in the absence of this
Agreement. In addition, it is understood and agreed that nothing in this Agreement is intended to
vest Property Owner's rights with respect to any laws, regulations, rules, or official policies of
any other governmental agency or public utility company with jurisdiction over the Property or
the Project; or any applicable federal or state laws, regulations, rules, or official policies that may
be inconsistent with this Agreement and that override or supersede the provisions set forth hi this
Agreement, and regardless of whether such overriding or superseding laws, regulations, rules, or
AIO -00777 v4 01.06.11 FINAL 9
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official policies are adopted or applied to the Property or (lie Project prior or subsequent to the
Agreement Date.
Property Owner has expended and will continue to expend substantial amounts of time
and money in the planning and entitlement process to permit Development of the Project in the
future. Property Owner represents and City ackiiowiedges that Property Owner would not make
these expenditures without this Agreement, and that Property Owner is and will be making these
expenditures in reasonable reliance upon obtaining vested rights to Develop the Project as set
forth in this Agreement.
Property Owner may apply to City tin• permits or approvals necessary to modify or
amend the Development specified in the Development Regulations, provided that unless this
Agreement also is amended, the request does not propose an increase in the maximum density,
intensity, height, or size of proposed structures, or a change in use that generates more peak hour
traffic or more daily traffic. In addition, Property Owner may apply to City for approval of
minor amendments to existing tentative tract maps, tentative parcel maps, or associated
conditions of approval, consistent with City of Newport Beach Municipal Code section
19.12.090. This Agreement does not constitute a promise or commitment by City to approve any
such permit or approval, or to approve the same with or without any particular requirements or
conditions, and City's discretion with respect to such matters shall be the same as it would be in
the absence of this Agreement.
4.2 No Conflicting 13nact)ients.
Except to the extent City reserves its discretion as expressly set forth in this Agreement,
during the Tenn of this Agreement City shall not apply to the Project or the Property any
ordinance, policy, rule, regulation, or other measure relating to Development of the Project that
is enacted or becomes effective after the Agreement Date to the extent it conflicts with this
Agreement. This Section 4.2 shall not restrict City's ability to enact an ordinance, policy, rule,
regulation, or other measure applicable to the Project pursuant to California Government Code
Section 65866 consistent with the procedures specified in Section 4.3 of this Agreement. In
Pardee Construction Co. v. C'ily of Camarillo (1984) 37 Cal.3d 465, the California Supreme
Court held that a construction company was not exempt from a city's growth control ordinance
even though the city and construction company had entered into a consent judgment (tantamount
to a contract under California law) establishing the company's vested rights to develop its
property consistent with the zoning. 'file California Supreme Court reached this result because
the consent judgment failed to address the timing of development. The Patties intend to avoid
the result of the Pardee case by acknowledging and providing in this Agreement that Property
Owner shall have the vested right to Develop the Project on and with respect to the Property at
the rate, timing, and sequenchtg that Property Owner deems appropriate within the exercise of
Property Owner's sole subjective business judgment, provided that such Development occurs in
accordance with this Agreement and the Development Regulations, notwithstanding adoption by
City's electorate of an initiative to the contrary after the Agreement Date. No City moratorium
or other similar limitation relating to the rate, timing, or sequencing of the Development of all or
any part of the Project and whether enacted by initiative or another method, affecting subdivision
maps, building permits, occupancy certificates, or other entitlement to use, shall apply to the
Project to the extent such moratorium or other similar limitation restricts Property Owner's
Auaoom W 01.06.11 FINAL 10
1515
vested lights in this Agreement or otherwise conflicts with the express provisions of this
Agreement.
4.3 Reservations of Authority.
Notwithstanding any other provision set forth in this Agreement to the contrary, the laws,
rides, regulations, and official policies set forth in this Section 4.3 shall apply to and govern the
Development of the Project on and with respect to the Property.
4.3.1 Procedural Regidalions. Procedural regulations relating to hearing bodies,
petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals,
and anv other matter of procedure shall apply to the Property, provided that such procedural
regulations are adopted and applied City -wide or to all other properties similarly situated in City.
4.3.2 Processing and Permit Fees. City shall have the right to charge and
Property Owner shall be required to pay all applicable processing and permit fees to cover the
reasonable cost to City of processing and reviewing applications and plans for any required
Subsequent Development Approvals, building permits, excavation and grading permits,
encroachment permits, and the like, for performing necessary studies and reports in connection
therewith, inspecting the work constructer( or installed by or on behalf of Property Owner, and
monitoring compliance with any requirements applicable to Development of the Project, all at
the rates in effect at the time fees are due.
4.3.3 Consistent Future City Regulations. City ordinances, resolutions,
regulations, and official policies governing Development which do not conflict with the
Development Regulations, or with respect to such regulations that do conflict, where Property
Owner has consented in writing to the regulations, shall apply to the Property.
4.3.4 Development Exactions Applicable to Propel. During the Term of this
Agreement, Property Owner shall be required to satisfy and pay all Development Exactions at
the time performance or payment is due to the same extent and in the same amount(s) that would
apply to Property Owner and the Project in the absence of this Agreement; provided, however,
that to the extent the scope and extent of a particular Development Exaction (excluding any
development impact fee) for the Project has been established and fixed by City in the conditions
of approval for any of the Development Regulations approved our or before the Agreement Date,
City shall not alter, increase, or modify said Development Exaction in a manner that is
inconsistent with such Development Regulations without Property Owner's prior written consent
or as may be otherwise required pursuant to overriding federal or state laws or regulations
(Section 4.3.5 hercinbelow). In addition, nothing in this Agreement is intended or shall be
deemed to vest Property Owner against the obligation to pay any of the following (which are not
included within the definition of "Development Exactions ") in the full amount that would apply
in the absence of this Agreement: (i) City's normal fees for processing, environmental
assessment and review, tentative tract and parcel map review, plan checking, site review and
approval, administrative review, building permit, grading permit, inspection, and similar fees
imposed to recover City's costs associated with processing, reviewing, and inspecting project
applications, plans, and specifications; (ii) fees and charges levied by any other public agency,
utility, district, or joint powers authority, regardless of whether City collects those fees and
charges; or (iii) community facility district special taxes or special district assessments or similar
AlOM773 A 01.06.11 RNAL 11
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assessments, business license fees, bonds or other security required for public improvements,
transient occupancy taxes, sales taxes, property taxes, sewer lateral connection fees, water
service connection fees, new water meter fees, and the Property Development Tax payable under
Chapter 3.12 of City's Municipal Code.
4.3.5 Overriding Federal and State Laws and Regulations. Federal and state
laws and regulations that override Property Owner's vested rights set forth in this Agreement
shall apply to the Property, together with any City ordinances, resolutions, regulations, and
official policies that are necessary to enable City to comply with the provisions of any such
overriding federal or state laws and regulations, provided that (i) Property Owner does not waive
its right to challenge or contest the validity of any such purportedly overriding federal, state, or
City law or regulation; and (ii) upon the discovery of any such overriding federal, slate, or City
law or regulation that prevents or precludes compliance with any provision of this Agreement,
City or Property Owner shall provide to the other Party a written notice identifying the feulcral,
state, or City law or regulation, together with a copy of the law or regulation and n brief written
statement of the conflict(s) between that law or regulation and the provisions of this Agreement.
Promptly thereafter City and Property Owner shall meet and confer in good faith in a reasonable
attempt to determine whether a modification or suspension of this Agreement, in whole or in
part, is necessary to comply with such overriding federal, state, or City law or regulation. In
such negotiations, City and Property Owner agree to preserve the terns of this Agreement and
the rights of Property Owner as derived from this Agreement to the maximum feasible extent
while resolving the conflict. City agrees to cooperate with Property Owner at no cost to City in
resolving the conflict in a manner which minimizes any financial impact of the conflict upon
Property Owner. City also agrees to process in a prompt manner Property Owner's proposed
changes to this Agreement, the Project and any of the Development Regulations as may be
necessary to comply with such overriding federal, state, or City law or regulation; provided,
however, that the approval of such changes by City shall be subject to the discretion of City,
consistent with this Agreement.
4.3.6 Public Health and Safety. Any City ordinance, resolution, rule, regulation,
program, or official policy that is necessary to protect persons on the Property or in the
ilmmediate vicinity from conditions dangerous to their health or safety, as reasonably detennined
by City, shall apply to the Property, even though the application of the ordinance, resolution, rule
regulation, program, or official policy would result in the impairment of Property Owner's
vested rights under this Agreement.
4.3.7 Uniform Building Standards. Existing and future building and building -
related standards set forth in the uniform codes adopted and amended by City from time to time,
including building, plumbing, mechanical, electrical, housing, swimming pool, and fire codes,
and any modifications and amendments thereof shall all apply to the Project and the Property to
the same extent that the same would apply in the absence of this Agreement.
4.3.8 Public Works Improvements. To the extent Property Owner constructs or
installs any public improvements, works, or facilities, the City standards in effect for such public
improvements, works, or facilities at the time of City's issuance of a permit, license, or other
authorization for construction or installation of same shall apply.
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4.3.9 No Guarantee or Reservation of Utility Capacity. Notwithstanding any
other provision set forth in this Agreement to the contrary, nothing in this Agreement is intended
or shall he interpreted to require City to guarantee or reserve to or for the benefit of Property
Owner or the Property any utility capacity, service, or facilities that may be needed to serve the
Project, whether domestic or reclaimed water service, sanitary sewer transmission or wastewater
treatment capacity, downstream drainage capacity, or otherwise, and City shall have the right to
limit or restrict Development of the Project if and to the extent that City reasonably determines
that inadequate utility capacity exists to adequately serve the Project at the time Development is
scheduled to coimnence.
4.4 Tentative Subdivision Maus.
City agrees that Properly Owner may file and process new and existing vesting tentative
maps for the Property consistent with California Government Code sections 66498.1- 66498.9
and City of Newport Beach Municipal Code chapter 19.20. Pursuant to the applicable provision
of the California Subdivision Map Act (California Government Code, section 66452.6(a)), the life
of any tentative subdivision map approved for the Property, whether designated a "vesting
tentative map" or otherwise, shall be extended for the Term of this Agreement.
5. Amendment or Cancellation of A>reement.
Other than modifications of this Agreement under Section 8.3 of this Agreement, this
Agreement may be amended or canceled in whole or in part only by mutual written and executed
consent of the Parties in compliance with California Govermnent Code section 65868 and City of
Newport Beach Municipal Code section 15.45.060 or by unilateral termination by City in the
event of an uncured default of Property Owner.
6. Enforcement.
Unless this Agreement is amended, canceled, modified, or suspended as authorized
herein or porsuant'to California Government Code section 65869.5, this Agreement shall be
enforceable by either Party despite any change in any applicable general or specific plan, zoning,
subdivision, or building regulation or other applicable ordinance or regulation adopted by City
(including by City's electorate) that purports to apply to any or all of the Property.
Annual Review of Property Owner's Compliance With Agreement.
7.1 General.
City shall review this Agreement once during every twelve (12) month period following
the Effective Date for compliance with the terms of this Agreement as provided in Government
Code Section 65865.1. Property Owner (including any successor to the Property Owner
executing this Agreement on or before the Agreement Date) shall pay City a reasonable fee in an
amount City may reasonably establish from time to time to cover the actual and necessary costs
for the annual review. City's failure to timely provide or conduct an amoral review shall not
constitute a Default hereunder by City.
7.2 Property Owner Obligation to Demonstrate Good Faith Compliance.
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During each annual review by City, Property Owner is required to demonstrate good faith
compliance with the terms of the Agreement. Properly Owner agrees to furnish such evidence of
good faith compliance as City, in the reasonable exercise of its discretion, may require, thirty
(30) days prior to each anniversary of the Effective Date during the Term.
7.3 Procedure.
The City Council of City shall conduct a duly noticed hearing and shall determine, on the
basis of substantial evidence, whether or not Property Owner has, for the period under review,
complied with the terns of this Agreement. if tlme City Council finds that Property Owner has so
complied, the amoral review shall be concluded. If the City Council finds, on the basis of
substantial evidence, that Property Owner has not so complied, written notice shall be sent to
Property Owner by first class mail of the City C..ouncil's finding of non- compliance, and Property
Owner shall be given at Jurist ten (10) days to cure any noncompliance that relates to the payment
of money and thirty (30) days to cure any outer type of noncompliance. If a cure not relating to
the payment of money cannot be completed within thirty (30) days for reasons which are beyond
the control of Property Owner, Property Owner must commence the cure within such thirty (30)
days and diligently pursue such cure to completion. If Property Owner fails to cure such
noncompliance within the time(s) set forth above, such failure shall be considered to be a Default
and City shall be entitled to exercise the remedies set forth in Article 8 below.
7.4 Annual Review a Non - Exclusive Means for Determining and Requiring Cure of
Pronertv Owner's Default,
The annual review procedures set forth in this Article 7 shall not be the exclusive means
for City to identify a Default by Properly Owner or limit City's rights or remedies for any such
Default.
8. Events of Default.
8.1 General Provisions.
In the event of any material default, breach, or violation of the terns of this Agreement
( "Default "), the Party alleging a Default shall have the right to deliver a written notice (each, a
"Notice of Default ") to the defaulting Party. The Notice of Default shall specify the nature of the
alleged Default and a reasonable manmer and sufficient period of time (ten (10) days if the
Default relates to the failure to timely make a monetary payment due hereunder and not less than
thirty (30) days in the event of non- monetary Defaults) in which the Default must be cured (the
"Cure Period "). During the Cure Period, the Party charged shall not be considered in Default for
the purposes of termination of this Agreement or institution of legal proceedings. If the alleged
Default is cured within the Cure Period, then the Default thereafter shall be deemed not to exist.
If a inn- monetary Default cannot be cured during the Cure Period with the exercise of
commercially reasonable diligence, the defaulting Party must promptly commence to cure as
quickly as possible, and in no event later than thirty (30) days after it receives the Notice of
Default, and thereafter diligently pursue said cure to completion.
8.2 Default by Property Owner.
A10.00773 A01.a.0 rMAL 14
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If Property Owner is alleged to have committed a non- monetary Default and it disputes
the claimed Default, it may make a written request for an appeal hearing before the City Council
within ten (10) days of receiving the Notice of Default, and a public hearing shall be scheduled at
the next available City Council meeting to consider Property Owner's appeal of the Notice of
Default. Failure to appeal a Notice of Default to the City Council within the ten (10) day period
shall waive any right to a hearing on the claimed Default. If Property Owner's appeal of the
Notice of Default is timely and in good faith but after a public hearing of Property Owner's
appeal the City Council concludes that Property Owner is in Default as alleged in the, Notice of
Default, the accrual date for eormnencement of the thirty (30) day Cure Period provided in
Section 8.1 shall be extended until the City Council's denial of Property Owner's appeal is
communicated to Property Owner.
8.3 City's Option to Temrinate Agreement.
In the event of an alleged Property Owner Default, City may not terminate this
Agreement without first delivering a written Notice of Default and providing Property Owner
with the opportunity to cure file Default within the Cure Period, as provided in Section 8. 1, and
complying with Section 8.2 if Property Owner timely appeals any Notice of Default with respect
to a non - monetary Default. A termination of this Agreement by City shall be valid only if good
cause exists and is supported by evidence presented to the City Council at or in connection with
a duly noticed public hearing to establish the existence of a Default. The validity of any
termination may be judicially challenged by Property Owner. Any such judicial challenge must
be brought within thirty (30) days of service on Property Owner, by first class mail, postage
prepaid, of written notice of termination by City or a written notice of City's determination of an
appeal of the Notice of Default as provided in Section 8,2. It is the intention of the Parties that,
while the City Council may declare a default and initiate termination of this Agreement on the
basis of substantial evidence in the administrative record, if the declaration of default is
contested in court, the court will review the default claim de nova and base its decision on
whether the preponderance of evidence supports the City Council's finding of breach.
8.4 Default by City.
If Property Owner alleges a City Default and alleges that the City has not cured the
Default within tllc Cure Period, Property Owner may pursue any equitable remedy available to it
under this Agreement, including, without limitation, an action for a writ of mandamus, injunctive
relief, or specific performance of City's obligations set forth in this Agreement. Upon a City
Default, any resulting delays in Property Owner's performance hereunder shall neither be a
Property Owner Default nor constitute grounds for termination or cancellation of this Agreement
by City and shall, at Property Owner's option (and provided Property Owner delivers written
notice to City within thirty (30) days of the conunencement of the alleged City Default), extend
the Terni for a period equal to the length of the delay.
8.5 Waiver.
Failure or delay by either Party in delivering a Notice of Default shall not waive that
Party's right to deliver a future Notice of Default of the same or any other Default.
8.6 Specific Performance Remedy.
A10.00773 w 01.06.11 rrwAL 15
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Due to file size, nature, and scope of the Project, it will not be practical or possible to
restore the Property to its pre- existing condition once implementation of this Agreement has
begun. After such implementation, both Property Owner and City may be foreclosed from other
choices they may have had to plan for the development of the Property, to utilize the Property or
provide for other benefits and alternatives. Property Owner and City have invested significant
time and resources and perforated extensive planning and processing of the Project in agreeing to
the terms of this Agreement and will be investing even more significant time and resources in
implementing the Project in reliance upon the terns of this Agreement. It is not possible to
determine the sum of money which would adequately compensate Property Owner or City for
such efforts. For the above reasons, City and Property Owner agree that damages would not be,
an adequate remedy if either City or Property Owner tails to carry out its obligations under this
Agreement. Therefore, specific performance of this Agreement is necessary to compensate
Property Owner if City fails to carry out its obligations under this Agreement or to compensate
City if Property Owner falls to carry out its obligations under this Agreement.
8.7 Monetary Damaees.
The Parties agree that monetary damages shall not be an available remedy for either Party
for a Default hereunder by the other Party; provided, however, that (i) nothing in this Section 8.7
is intended or shall be interpreted to limit or restrict City's right to recover the Public Benefit
Fees due front Property Owner as set forth herein; and (ii) nothing in this Section 8.7 is intended
or shall be interpreted to limit or restrict Property Owner's indemnity obligations set forth in
Article 10 or the right of the prevailing Party in any Action to recover its litigation expenses, as
set forth in Section 8.10.
8.8 Additional City Remedy for Property Owner's Default.
In the event of any Default by Property Owner, in addition to any other remedies which
may be available to City, whether legal or equitable, City shall be entitled to receive and retain
any Development Exactions applicable to the Project or the Property, including any fees, grants,
dedications, or improvements to public property which it may have received prior to Property
Owner's Default without recourse from Property Owner or its successors or assigns.
8.9 No Personal Liability of City Officials, Emplovices, or Agents.
No City official, employee, or agent shall have any personal liability hereunder for a
Default by City of any of its obligations set forth in this Agreement.
8.10 Recovery of 1_e >aal Expenses by Prevailing Party in Any Action,
In any judicial proceeding, arbitration, or mediation (collectively, an "Action ") between
the Parties that seeks to enforce the provisions of this Agreement or arises out of this Agreement,
the prevailing Party shall recover all of its actual and reasonable costs and expenses, regardless
of whether they would be recoverable under California Code of Civil Procedure section 1033.5
or California Civil Code section 1717 in the absence of this Agreement. These costs and
expenses include expert witness fees, attorneys' fees, and casts of investigation and preparation
before initiation of the Action. The right to recover these costs and expenses shall accrue upon
initiation of the Action, regardless of whether the Action is prosecuted to a final judgment or
decision.
A10-00773 0 01.06.11 FINAL 16
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9. Force Ma cure.
Neither Party shall be deemed to be in Default where failure or delay in performance of
any of its obligations under this Agreement is caused, through no fault of the Party whose
performance is prevented or delayed, by floods, earthquakes, other acts of God, fires, wars, riots
or similar hostilities, strikes or other labor difficulties, state or federal regulations, or court
actions. Except as specified above, nonperformanec shall not be excused because of the act or
omission of a third person. In no event shall the occurrence of an event of force majeure operate
to extend the Tern of this Agreement. In addition, in no event shall the time for performance of
a monetary obligation, including without limitation Property Owner's obligation to pay Public
Benefit Fees, be extended pursuant to this Section.
10. Indemnity Obligations of Property Owner.
10.1 Indemnity Arising From Acts or Omissions of Propel Owner.
Property Owner shall indettify, defend, and hold harmless City and City's officials,
employees, agents, attorneys, and contractors (collectively, the "City's Affiliated Parties ") from
and against all suits, claims, liabilities, losses, damages, penalties, obligations, and expenses
(including but not limited to attorneys' fees and costs) (collectively, a "Claim ") that may arise,
directly or indirectly, from the acts, omissions, or operations of Property Owner or Property
Owner's agents, contractors, subcontractors, agents, or employees in the course of Development
of the Project or any other activities of Property Owner relating to the Property or pursuant to
this Agreement. City shall have the right to select and retain counsel to defend any Claim filed
against City and /or any of City's Affiliated Parties, and Property Owner shall pay the reasonable
cost for defense of any Claim. T7ue indemnity provisions in this Section 10.1 shall commence on
the Agreement Date, regardless of whether the Effective Date occurs, and shall survive the
Termination Date.
10.2 Third Party Liti atg ion.
br addition to its indemnity obligations set forth in Section 10.1, Property Owner shall
indemnify, defend, and hold hamiless City and City's Affiliated Parties from and against any
Claim against City or City's Affiliated Patties seeking to attack, set aside, void, or amid the
approval of this Agreement, the Adopting Ordinance, any of the Development Regulations for
the Project (including without limitation any actions taken pursuant to CEQA with respect
thereto), any Subsequent Development Approval, or lire approval of any permit granted pursuant
to this Agreement. Said indemnity obligation shall include payment of attorney's fees, expert
witness fees, and court costs. City shall promptly notify Properly Owner of any such Claim and
City shall cooperate with Property Owner in the defense of such Claim. If City fails to promptly
notify Property Owner of such Claim, Property Owner shall not be responsible to indemnify,
defend, and hold City harmless from such Claim until Property Owner is so notified and if City
fails to cooperate in the defense of a Claim Property Owner shall not be responsible to defend,
indemnify, acrd hold harmless City during the period that City so fails to cooperate or for any
losses attributable thereto. City shall be entitled to retain separate counsel to represent City
against the Claim and the City's defense costs for its separate counsel shall be included in
Property Owner's indemnity obligation, provided that such counsel shall reasonably cooperate
with Properly Owner in an effort to minimize the total litigation expenses incurred by Property
A10 -00771 %+101.06.11 FINAL 17
02
Owner. in the event either City or Property Owner recovers any attorney's tees, expert witness
fees, costs, interest, or other amounts from the party or parties asserting the Claim, Property
Owner shall be entitled to retain the same (provided it has fidly performed its indemnity
obligations hereunder). The indemnity Provisions in this Section 10.2 shall commence on the
Agreement Date, regardless of whcthrr the Effective Date occurs, and shall survive the
Termination Date.
10.3 EnvironmentalIndemnity,
In addition to its indenmity obligations set forth in Section 10.1; fiom and after the
Agreement Date Property Owner shall indemnify, defend, and hold harmless City and City's
Affiliated Parties from and against any and all Claims for personal injury or death, property
damage, economic loss, statutory penalties or fines, and damages of any kind or nature
whatsoever, including without limitation attorney's fees, expert witness lives, and costs, based
upon or arising from any of the following: (i) the actual or alleged presence of any hazardous
Substance on or under any of the Property in violation of any applicable Environmental Law; (ii)
the actual or alleged migration of any Hazardous Substance from the Property through the soils
or groundwater to a location or locations off of the Property; and (iii) the storage, handling,
transport, or disposal of any Hazardous Substance on, to, or from the Property and any other area
disturbed, graded, or developed by Property Owner in connection with Property Owner's
Development of the Project. The foregoing indemnity obligations shall not apply to any
Hazardous Substance placed or stored on a separate legal lot within the Property after the Lot
Termination Date for said lot, as provided in Section 2.4 of this Agreement, The indemnity
provisions in this Section 10.3 shall cvnunence on the Agreement Dale, regardless of whether the
Effective Date occurs, and shall survive the Termination Date.
H. Assignment.
Property Owner shall have the right to sell, transfer, or assign (hereinafter, collectively, a
`"Transfer') Property Owner's fee interest in to the Property, in whole or in part, to any person,
partnership, joint venture, firm, or corporation (which successor, as of the effective date of the
Transfer, shall become the "Property Owner" under this Agreement) at any time from the
Agreement Date until the Termination Date; provided, however, that no such Transfer shall
violate the provisions of the Subdivision Map Act (Government Code Section 66410 et seq.) or
City's local subdivision ordinance and any such Transfer shall include the assigrunenl and
assumption of Property Owner's rights, duties, and obligations set forth in or arising under this
Agreement as to the Property or the portion thereof so Transferred and shall be made in strict
compliance with the following conditions precedent: (i) no transfer or assignment of any of
Property Owner's rights or interest under this Agreement shall be made unless made together
with the Transfer of all or a part of the Property; and (ii) prior to the effective date of any
proposed Transfer, Property Owner (as transferor) shall notify City, in writing, of such proposed
Transfer and deliver to City a written assignment and assumption, executed in recordable form
by the transferring and successor Property Owner and in a form subject to the reasonable
approval of the City Attorney of City (or designee), pursuant to which the transferring Property
Owner assigns to the successor Property Owner and the successor Property Owner assumes from
the transferring Property Owner all of the rights and obligations of the transferring Property
Owner with respect to the Property or portion thereof to be so Transferred, including in the case
of a partial Transfer the obligation to perform such obligations that must be performed off of the
A1040773 A 01.04.11 FINAL 19
03
portion of the Property so Transferred that are a condition precedent to the successor Properly
Owner's right to develop the portion of the Property so Transferred.
Notwithstanding any Transfer, the transferring Property Owner shall continue to be
jointly and severally liable to City, together with the successor Properly Owner, to perform all of
the transferred obligations set forth in or arising under this Agreement unless the transferring
Properly Owner is given a release in writing by City, which release shall be only with respect to
the portion of the Property so Transferred in the event of a partial Transfer. City shall provide
such a release upon the transferring Property Owner's full satisfaction of all of the following
conditions: (i) the transferring Property Owner no longer has a legal or equitable interest in the
portion of the Property so Transferred other than as a beneficiary under a deed of trust; (ii) the
transferring Property Owner is not then in Default under this Agreement and no condition exists
that with the passage of time or the giving of notice, or both, would constitute a Default
hereunder; (iii) the transferring Property Owner has provided City with the notice and the frilly
executed written and recordable assignment and assumption agreement required as set tbrih in
the first paragraph of this Section 11; and (iv) the successor Property Owner either (A) provides
City with substitute security equivalent to any security previously provided by the transferring
Property Owner to City to secure performance of the successor Property Owner's obligations
hereunder with respect to the Property or the portion of the Property so Transferred or (B) if the
transferred obligation in question is not a secured obligation, the successor Property Owner
either provides security reasonably satisfactory to City or otherwise demonstrates to City's
reasonable satisfaction that the successor Properly Owner has the financial resources or
commitments available to perform the transferred obligation at the time and in the manner
required under this Agreement and the Development Regulations for the Project.
12. Mortgagee Rights.
12.1 Encumbrances on Property.
The Parties agree that this Agreement shall not prevent or limit Property Owner in any
manner from encumbering the Property, any part of the Property, or any improvements on the
Property with any Mortgage securing financing with respect to the construction, development,
use, or operation of the Project.
12.2 Mortgagee Protection.
This Agreement shall be superior and senior to the lien of any Mortgage. Nevertheless,
no breach of this Agreement shall defeat, render invalid, diminish, or impair the lien of any
Mortgage made in good faith and for value. Any acquisition or acceptance of title or any right or
interest in the Property or pail of the Property by a Mortgagee (whether due to foreclosure,
trustee's sale, decd in lieu of foreclosure, lease termination, or otherwise) shall be subject to all
of the terms and conditions of this Agreement. Any Mortgagee who takes title to the Property or
any part of the Property shall be entitled to the benefits arising under this Agreement.
12.3 Mortgagee Not Obligated.
Notwithstanding the provisions of this Section 12.3, a Mortgagee will not have any
obligation or duty under the terms of this Agreement to perform the obligations of Property
Owner or other affirmative covenants of Property Owner, or to guarantee this performance
A10-00770 A01.06.11 FINAL 19
04
except that: (i) the Mortgagee shall have no right to develop the Project under the Development
Regulations without fully complying with the terms of this Agreement; and (ii) to the extent that
any covenant to be performed by Property Owner is a condition to the performance of a covenant
by City, that performance shall continue to be a condition precedent to City's performance.
12A Notice of Default to Mortgagee; Rizht of Mortgagee to Cure.
Each Mortgagee shall, upon written request to City, be entitled to receive written notice
from City oft (i) the results of the periodic review of compliance specified in Article 7 of this
Agreement, and (ii) any default by Property Owner of its obligations set forth in this Agreement.
Each Mortgagee shall have a further right, but not an obligation, to cure the Default
within ten (10) days after receiving a Notice of Default with respect to a monetary Default and
within thirty (30) days after receiving a Notice of Default with respect to a non - monetary
Default. if the Mortgagee can only remedy or cur a non- monetary Default by obtaining
possession of the Property, then the Mortgagee shall have the right to seek to obtain possession
with diligence and continuity througlr a receiver or otherwise, and to remedy or cure the non-
monetary Default within thirty (30) days after obtaining possession and, except in case of
emergency or to protect the public hudth or safety, City may not exercise any of its judicial
remedies set forth in this Agreement to terminate, or substantially alter the rights of the
Mortgagee until expiration of the thirty (30) -day period. In the case of a non - monetary Default
that cannot with diligence be remedied or cured within thirty (30) days, the Mortgagee shall have
additional time as is reasonably necessary to remedy or cure the Default, provided the Mortgagee
promptly commences to cure the non- monetary Default within thirty (30) days and diligently
prosecutes the cure to completion.
AIG -00773 001.06.11 FINAL 20
MAI
13. Miscellaneous Terns.
13.1 Notices.
Any notice or demand that shall be required or permitted by law or any provision of this
Agreement shall be in writing. If the notice or demand will be served upon a Party, it either shall
be personally delivered to the Party; deposited in the United States mail, certified, return receipt
requested, and postage prepaid; or delivered by a reliable courier service that provides a receipt
showing date and time of delivery with courier charges prepaid. The notice or demand shall be
addressed as follows:
TO CITY: City of Newport Beach
3300 Newport Boulevard
Post Office Box 1768
Newport Beach, California 92663 -3884
Attn: City Manager
With a copy to:
TO PROPERTY OWNER:
With a copy to:
City Attorney
City of Newport Beach
3300 Newport Boulevard
Post Office Box 1768
Newport Beach, California 92663 -3884
Golf Realty Fund
One Upper Newport Plaza
Newport Beach, California 92660
Attn: Robert 0 Hill
Tim Paone
Theodora Oringlier PC
535 Anton Boulevard, Ninth Floor
Costa Mesa, CA 92626
Either Patty may change the address stated in this Section 133 by delivering notice to the
other Party in the mammer provided in this Section 13. 1, and thereafter notices to such Party shall
be addressed and submitted to the new address. Notices delivered in accordance with this
Agreement shall be deemed to 13e delivered upon the earlier of (i) the date received or (iii) three
business days after deposit in the mail as provided above.
13.2 Private Undertaking.
Any fixture Development of the Project is a private undertaking. Neither Party will be
acting as the agent of the other in any respect, and each Party will be an independent contracting
entity with respect to the terns, covenants, and conditions set forth in this Agreement. This
Agreement forms no partnership, joint venture, or other association of any kind. The only
relationship between the Parties is that of a goverment entity regulating the Development of
private property by the owner or user of the Property.
A10 -00773 v401.06.11 FINAL
21
WRAM
13.3 Cooperation.
l3fich Party shalt cooperate with and provide reasonable assistance to the other Party to
the extent consistent with and necessary to implement this Agreement. Upon the request of a
Party at any time, the other Party shall promptly execute, with acknowledgement or affidavit if
reasonably required, and file or record the required instruments and writings and take any actions
as may be reasonably necessary to implement this Agreement or to evidence or consummate the
transactions contemplated by (his Agreement.
13.4 Estoppel Certificates.
Al any time, either Party may deliver written notice to the other Party requesting that that
Party certify in writing that, to the best of its knowledge: (i) this Agreement is in full force and
effect and is binding on the Party; (ii) this Agreement has not been amended or modified either
orally or in writing or, if this Agreement has been amended, the Party providing the eertification
shall identify the amendments or modifications; and (iii) the requesting Party is not in Defmdt in
the performance of its obligations under this Agreement and no event or situation has occurred
that with the passage of time or the giving of Notice or both would constitute it Default or, if
such is not the case, then the other Party shall describe the nature and amount of the actual or
prospective Default.
The Party requested to furnish an estoppel certificate shall execute and return the
certificato within thirty (30) clays following receipt. Requests for the City to furnish an estoppel
certificate shall include reimbursement for all administrative costs incurred by the City including
reasonable attorneys fees incurred by the City in fumislung an estoppels certificate.
13.5 Rules of Construction.
The singular includes the plural; the masculine and neuter include the feminine; "shall" is
mandatory; and "may' is permissive.
13.6 Time Is of the Essence.
Time is of the essence regarding each provision of this Agreement as to which time is an
element.
13.7 Waiver.
The failure by a Party to insist upon the strict performance of any of the provisions of this
Agreement by the other Party, and failure by a Party to exercise its rights upon a Default by the
other Party, shalt not constitute a waiver of that Party's right to demand strict compliance by the
other Party in the future.
13.8 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, but all of which shall together constitute one and the same agreement.
A10-00773 A 01.06.1 r FINAL 22
07
139 EntireAtreement.
This Agreement. constitutes the entire, agreement between the Parties and supersedes all
prior agreements and understandings, both written and oral, between the Parties with respect to
the subject matter addressed in this Agreement.
13.10 Severability.
The Patties intend that each-and every obligation of the Parties is interdependent and
interrelated with the other, and if any provision of this Agreement or the application of the
provision to any Party or circumstances shall be held invalid or unenforceable to any extent, it is
the intention of the Parties that the remainder of this Agreement or the application of the
provision to persons or circumstances shall be rendered invalid or unenforceable. The Patties
intend that neither Party shall receive any of the benefits of the Agreement without the full
performance by such Party of all of its obligations provided for under this Agreement. Without
limiting the generality of the foregoing, the Parties intend that Property Owner shall not receive
any of the benefits of this Agreement if any of Property Owner's obligations are rendered void or
unenforceable as the result of any third party litigation, and City shall be free to exercise its
legislative discretion to amend or repeal the Development Regulations applicable to the Property
and Property Owner shall cooperate as reAluired, despite this Agreement, should third patty
litigation result in the nonperformance of Property Owner's obligations under this Agreement.
The provisions of this Section 13.10 shall apply regardless of whether the Effective Date occurs
and after the Termination Date.
13.11 Construction.
This Agreement has been drafted after negotiation and revision. Both City and Property
Owner are sophisticated parties who were represented by independent counsel throughout the
negotiations or City and Property Owner had the opportunity to be so represented and voluntarily
chose to not be so represented. City and Property Owner each agree and acknowledge that the
terns of this Agreement are fair and reasonable, taking into account their respective purposes,
terms, and conditions. This Agreement shall therefore be construed as a whole consistent with
its fair meaning and applicable principle or presumptions of contract construction or
interpretation, if any, shall be used to construe the whole or any part of this Agreement in favor
of or against either Party.
13.12 Successors and Assigns; Constructive Notice and Acceptance.
The burdens of this Agreement shall be binding upon, and the benefits of this Agreement
shall inure to, all successors in interest to the Parties to this Agreement. All provisions of this
Agreement shall be enforceable as equitable servitudes and constitute covenants running with the
land. Each covenant to do or refrain from doing some act hereunder with regard to Development
of the Property: (i) is for the benefit of and is a burden upon every portion of the Property; (ii)
nuns with the Property and each portion thereof; and (iii) is binding upon each Party and each
successor in interest during its ownerslrip of the Property or any portion thereof. Every person
or entity who now or later owns or acquires any right, title, or interest in any part of the Project
or the Property is and shall be conclusively deenned to have consented and agreed to every
provision of this Agreement. This Section 13.12 applies regardless of whether the instrument by
Ato -00773 v401.06.11 FINAL. 23
.N
which such person or entity acquires the interest refers to or acknowledges this Agreement and
regardless of whether such person or entity has expressly entered into an assignment and
assumption agreement as provided for in Section 11.
13.13 No Third Party Beneficiaries.
The only Parties to this Agreement are City and Property Owner. This Agreement does
not involve any third party beneficiaries, and it is not intended and shall not be construed to
benefit or be enforceable by any other person or entity.
13.14 Applicable Law and Venue.
This Agreement shall be construed and enforced consistent with the internal laws of the
State of California, without regard to conflicts of law principles. Any action at law or in equity
arising under this Agreement or brought by any Party for the purpose of enforcing, construing, or
determining the validity of any provision of this Agreement shall be fled and tried in the
Superior Court of the County of Orange, State of California, or the United States District Court
for the Central District of California. The Parties waive all provisions of law providing for the
removal or change of venue to any other court.
13.15 Section Headings.
All section headings and subheadings are inserted for convenience only and shall not
affect construction or interpretation of this Agreement.
13.16 Incorporation of Recitals and Exhibits.
All of the Recitals are incorporated into this Agreement by this reference. Exhibits A and
B are attached to this Agreement and incorporated by this reference as follows:
EXHLBYf
DESCRIPTION
DESI NATION
A
Legal Description of Property
B
Depiction of the Property
13.17 Recordation.
The City Clerk of City shall record this Agreement and any amendment, modification, or
cancellation of this Agreement in the Office of tine County Recorder of the County of Orange
within the period required by Californua Government Code section 65868.5 and City of Newport
Beach Municipal Code section 15.45.090. Tile date of recordation of this Agreement shall not
modify or amend the Effective Date or the Termination Date.
A10.00773 rA 01.06.11 HNAL 24
SIGNATURE PAGE TO
DEVELOPMENT AGREEMENT'
"PROPER:rY OWNER"
By:
Its:
By:
"CITY"
CITY OF NEWPORT BEACH
m
Its: Mayor
ATTEST:
City Clerk
VED A.$ TO FORM:
A'i;ton Harp, City Attomey
Aio.00na V401.06.11 FINAL 25
70
STATE OF CALIFORNIA
COUNTY OF ORANGI
On _ , before me, the undersigned, a Notary Public in and for said State,
personally appeared _ and , personally known
to me to be (lie persons whose names are subscribed to the within instrument and acknowledged
to me that they executed the same in their authorized capacities and that by their signature on the
instrument the persons, or the entity upon behalf of which the persons acted, executed the
instrument.
Witness my hand and official seal.
Notary Public in and for
said County and State
STATE OF CALIFORNIA
COUNTY OF ORANGE
On , before me, the undersigned, a Notary Public in and for said State,
personally appeared and personally known
to me to be the persons whose names are subscribed to the within instrument and acknowledged
to me that they executed the same in their authorized capacities and that by their signature on (lie
instrument the persons, or the entity upon behalf of which the persons acted, executed the
instrument.
Witness my ]land and official seal,
Notary Public in and for
said County and State
AI 0.00773 v4 01.06.11 FINAL '26"
72
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
The Property:
Parcel I and Parcel 2 of Parcel Map 94 -102, in the City of Newport Beach, County of Orange,
State of California, as per Map fled in Book 316, Pages 3 to 6, inclusive, of Parcel Maps, in the
office of the County Recorder of Orange County.
AIO -00773 v4 01.06.11 FINAL
2
THE VILLAS ice} III z"
1
EXHIBIT B
DEPICTION OF PtROPERY
THE
TENNIS CLUB
MASTER PLAN
ME IENNIS CLUB Sub•Alco
I uet•: fmdiuln cma;
Terms CtuLhau:C
THEVILLAS Sub1•.ma
5 iiryle iemih; hmres
IHE OUNGALOWS- Sub.A,ea
?7 gnc3i lontal units
-THE GUL6! ;LUU- SulrAlen
NOT A PART
NUCC
Plonnnd Community
s t c a r n s EXHIBIT
A Rr'. it l T£ i i u R t 1
I Oi 1
73
t
+f
.
Al
MASTER PLAN
ME IENNIS CLUB Sub•Alco
I uet•: fmdiuln cma;
Terms CtuLhau:C
THEVILLAS Sub1•.ma
5 iiryle iemih; hmres
IHE OUNGALOWS- Sub.A,ea
?7 gnc3i lontal units
-THE GUL6! ;LUU- SulrAlen
NOT A PART
NUCC
Plonnnd Community
s t c a r n s EXHIBIT
A Rr'. it l T£ i i u R t 1
I Oi 1
73
STATE OF CALIFORNIA }
COUNTY OF ORANGE } ss.
CITY OF NEWPORT BEACH }
I, Leilani I. Brown, City Clerk of the City of Newport Beach, California, do hereby certify
that the whole number of members of the City Council is seven, that the foregoing ordinance, being
Ordinance No. 2012 -3 was duly and regularly introduced on the 13il' day of March, 2012, and adopted by
the City Council of said City at a regular meeting of said Council, duly and regularly held on the 27` day of
March, 2012, and that the same was so passed and adopted by the following vote, to wit:
Ayes: Hill, Rosansky, Curry, Selich, Henn, Daigle
Noes: Mayor Gardner
Absent: None
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official
seal of said City this 28 &' day of March, 2012.
m �-
� Im
City Co '
City of Newport Beach, California
(Seal)
CERTIFICATE OF PUBLICATION
STATE OF CALIFORNIA }
COUNTY OF ORANGE } ss.
CITY OF NEWPORT BEACH }
I, LEILANI I. BROWN, City Clerk of the City of Newport Beach, California, do hereby certify that
Ordinance No. 2012 -3 has been duly and regularly published according to law and the order of the City
Council of said City and that same was so published in The Daily Pilot, a daily newspaper of general
circulation on the following dates:
Introduced Ordinance: March 17, 2012
Adopted Ordinance: March 31, 2012 �j J�n
In witness whereof, I have hereunto subscribed my name this "lrr�.. day of
2012.
n III � ^l.
hv-
City n6j
City of Newport Beach, California
(Seal)