HomeMy WebLinkAbout24 - Newport Coast Annexation and Development Agreement Extension (PA2015-165) - Newport Coast and Newport RidgeCITY OF
Q �tiW PORT
NEWPORT REACH
City Council Staff Report
November 22, 2016
Agenda Item No. 24
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Kimberly Brandt, Community Development Director - 949-644-3232,
kbrandt@newportbeachca.gov
PREPARED BY: Gregg Ramirez, Senior Planner, gramirez(&-newportbeachca.gov
PHONE: 949-644-3219
TITLE: Newport Coast Annexation and Development Agreement Extension
(PA2015-165) - Newport Coast and Newport Ridge
ABSTRACT:
The applicant requests to extend the term of the Annexation and Development
Agreement between the City of Newport Beach (City) and Irvine Company and Irvine
Community Development Company concerning the Newport Coast and Adjacent
Properties (Agreement) for an additional 15 years to January 1, 2032. The proposed
extension also includes public benefit fees as recommended by staff. No other changes,
including changes to commercial and residential development capacity, are proposed.
RECOMMENDATION:
a) Conduct a public hearing;
b) Find that all significant environmental concerns for the proposed project have been
addressed in the previously prepared environmental documents certified by the
County of Orange and described in Exhibit C of the Agreement and that no
additional alternatives or mitigation measures should be considered in conjunction
with the proposed project; and
c) Waive full reading, direct the City Clerk to read by title only, introduce Ordinance
No. 2016-20, An Ordinance of the City Council of the City of Newport Beach,
California, Approving the First Amendment to the Newport Coast Annexation and
Development Agreement (DA2016-002), and pass to second reading for adoption on
November 29, 2016.
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Newport Coast Development Agreement Extension
November 22, 2016
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FUNDING REQUIREMENTS:
Staff recommends the Agreement extension include a combination of two public benefit
fees payable by the Irvine Company to the City. The first public benefit fee is a one-time
renewal fee in the amount of five million dollars ($5,000,000), due and payable to City
upon the effective date of the amendment. Should future development occur, this
renewal fee will be credited against the second public benefit fee paid by the Irvine
Company to City based on the type of units constructed. The public benefit fees are
proposed to be paid at the time of construction and are seventy-one thousand and one -
hundred dollars ($71,100) per hotel unit that is converted into a residential dwelling unit
and constructed (as allowed by the Newport Coast LCP) and ten thousand dollars
($10,000) per hotel unit that is constructed. Both public benefit fees will be adjusted for
inflation.
The Irvine Company has indicated support of the public benefit fees stated above, with
the exception of the $5,000,000 renewal fee (Attachment E); this is discussed further in
the following section.
DISCUSSION:
Project Setting
The Agreement covers the communities commonly referred to as Newport Coast and
Newport Ridge which are developed with a mix of residential, commercial, and visitor
accommodations. The following tables summarize the existing and allowed
development permitted by the regulatory documents. In addition to the development in
the tables, the area contains 475 acres of park and recreation area and 1,913 acres of
open space, most of which are included in the Natural Communities Conservation Plan
(NCCP). Tables 1 and 2 summarize the allowed and existing development capacity in
Newport Ridge and Newport Coast. It's important to remember, like other areas of the
City, build out to maximum General Plan capacity may not occur in the near future, or
may never occur.
Table 1: Newport Ridge
DEVELOPMENT TYPE
ALLOWED
EXISTING
REMAINING
Residential Units
2,550
2,187
363
Commercial Floor Area
141,396 s.f.
103,712 s.f.
37,684 s.f.
(Newport Coast
Shopping Center)
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Newport Coast Development Agreement Extension
November 22, 2016
Page 3
Table 2 Newport Coast
DEVELOPMENT TYPE
ALLOWED
EXISTING
REMAINING
Residential Units
2,600
2,178
422
Hotel/Resort Rooms
2,150
1,104
1,046
Hotel/Resort Floor Area
2,960,000 s.f.
2,046,297 s.f.
913,703 s.f.
Day Use Commercial Floor Area
75,000 s.f.
0
75,000 s.f.
PA13 (Pelican Hill Resort and
Marriott Newport Coast Area)
Day Use Commercial Floor Area
125,000 s.f.
124,067 s.f.
933 s.f.
PA313 and PA14 (Crystal Cove
Promenade)
BACKGROUND
On May 23, 1988, a development agreement between the County of Orange (County)
and the Irvine Company was approved for development of the Newport Coast (formerly
Irvine Coast) Planned Community. The development agreement was part of a lengthy
planning process that involved review of numerous planning and environmental
documents including the County of Orange/Newport Coast Local Coastal Program and
Master Coastal Development Permit for that portion of the property within the Coastal
Zone. Development of the area began after the County approved and the Coastal
Commission certified the 2nd Amendment to the Newport Coast Local Coastal Program
in 1996.
The City amended its General Plan (GPA) to include Newport Coast and Newport Ridge
on October 10, 2000. The added area is identified as Statistical Area N in the Land Use
Element. Prior to the GPA, the area had gone through a comprehensive planning
process with the County as the lead agency. The planning for the area included the
Coastal Commission -approved Newport Coast Local Coastal Program, Newport Coast
Planned Community, Newport Ridge Planned Community, Master Plan of Streets and
Highways, inclusion of much of the area in the NCCP, and multiple environmental
studies, review, and approvals.
A year later in October 2001, the City entered into a Cooperative Agreement with the
County. The agreement recognizes all the planning for Newport Coast and Newport
Ridge that had been processed through the County and that the County would retain
permit and land use authority until each planning area (PA) is determined to be fully
improved. The agreement also recognizes that the County is authorized to issue permits
and allow development as specified in the Newport Coast LCP and the Newport Coast
and Newport Ridge Planned Communities.
In November 2001, the City entered into the Agreement with the applicant. Included in
the Agreement is a provision requiring that the City's General Plan and zoning remain
essentially identical to the County's designation in effect at the time of the annexation
for the Agreement's term, which was 15 years, expiring on January 1, 2017.
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Newport Coast Development Agreement Extension
November 22, 2016
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Since the implementation of the Agreement and development of the area, the applicant
has fulfilled their public benefits requirements of the County development agreement
including the dedication of parks and open space, funding for the Newport Coast Fire
Station, road development fees, and the payment of fees for police services and
libraries.
Analysis
The Agreement between the applicant and the City describes the development rights
provided by the City and public benefits to be provided by the applicant. The Agreement
vests development rights including general plan designations and development
capacities for the Agreement's 15 -year term.
The applicant proposes to extend the 15 -year Agreement term for another 15 years. If
approved, the Agreement's expiration date would be extended from January 1, 2017 to
January 1, 2032. The applicant believes the extension would provide sufficient time to
complete the process and development envisioned when the Agreement was first
entered into in 2001. With the exception of the new public benefit fees proposed by
staff, no other changes, including changes to commercial and residential development
capacity, are proposed. The Cooperative Agreement will continue to remain in effect if
the Agreement is extended, and as such, the County will retain permit jurisdiction until
each planning area is determined to be fully improved, which is consistent with the
Agreement.
Should the Agreement's term not be extended, the City would be able to terminate the
Cooperative Agreement with the County pursuant to its terms. Upon termination of the
Cooperative Agreement, the County would transfer back to the City the permitting and
development review authority for the remaining un -built development potential in
Newport Ridge and Newport Coast. Additionally, the City would have the ability to
amend the General Plan and related zoning documents in Newport Ridge and Newport
Coast, since the City would no longer be bound by the development agreement.
The draft amendment has been reviewed by the City Attorney's Office for Newport
Beach Municipal Code compliance and accuracy.
Plannina Commission Review and Action
The Planning Commission held a public hearing on October 6, 2016. At that time, the
proposed public benefit was not known. Therefore, after the conclusion of their
deliberations, the Planning Commission determined that the amendment would be
acceptable and with a vote of 6-0, recommended that the City Council approve the term
extension, but they did not specify the number of years for the extension. Their
recommendation includes the caveat that the public benefit fee be commensurate with
the term of the extension. The Planning Commission resolution and minutes from this
meeting are included as Attachment B.
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Newport Coast Development Agreement Extension
November 22, 2016
Page 5
Applicant's Letter Dated November 14, 2016
The most recent letter from the applicant is contained in Attachment E, and the letter
reiterates the request for the extension and lists all of the public benefits that the Irvine
Company has completed as required by its development agreement with the County.
Staff would like to clarify a statement in the applicant's letter that summarizes Public
Resources Code Section 30519.2. The letter indicates that this State legislation
encourages the City to adopt an LCP for Newport Coast within a 24 -month timeframe,
and if that does not occur, the City is penalized with a monthly "late fee" of $1,000. This
statement is a bit misleading, the 24 -month timeframe and "late fee" are associated
specifically with the City's adoption of an LCP for the coastal zone areas within the
City's corporate boundary, prior to the annexation of Newport Coast (Attachment F).
Additionally the State legislation reiterates the voluntary nature of the City assuming
administrative authority over the Newport Coast LCP with the following provision:
Public Resources Code Section 30519.2(x)(5):
(5) If, at any time after the recordation of the certificate of completion of the
annexation of [Newport Coast], the City of Newport Beach elects to assume
coastal management responsibility for [Newport Coast], the City may begin
preparation of a local coastal program for that area. The City of Newport Beach
may adopt provisions of the County of Orange's certified local coastal program
that apply to [Newport Coast]. All of the procedures for the preparation, approval,
and certification of a local coastal program set forth in this division, and any
applicable regulations adopted by the commission, shall apply to the preparation,
approval, and certification of a local coastal program for [Newport Coast].
Therefore, contrary to the assertions provided in the applicant's letter, the City has not
failed to meet any State requirement to prepare a certified LCP for Newport Coast.
ALTERNATIVES:
The City Council may choose to modify the public benefit fees as recommended by
staff, or modify the requested 15 -year extension. If the Agreement term is not extended,
the Agreement expires on January 1, 2017; however, the General Plan development
allocations, LCP designations, and other agreements would all remain in effect unless
and until future Council action is taken.
ENVIRONMENTAL REVIEW:
All significant environmental concerns for the proposed project have been addressed in
the previously prepared environmental documents certified by the County and described
in Exhibit C of the Agreement; therefore, staff recommends the City Council find that
there are no additional alternatives or mitigation measures that should be considered in
conjunction with this project. Copies of the previously prepared environmental document
are available for public review and inspection at the City's Planning Division.
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Newport Coast Development Agreement Extension
November 22, 2016
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NOTICING:
Government Code Section 65091 provides that, when the number of property owners to
whom notice is required to be mailed is greater than 1,000 (which is the case with the
proposed Agreement amendment), notice may be provided by placing a one-eighth
page advertisement in the local newspaper. Notice of the City Council public hearing
scheduled for November 7, 2016 was a one-eighth page display advertisement in the
October 29, 2016, Daily Pilot. On November 7, 2016, the City Council continued the
public hearing to November 22, 2016.
ATTACHMENTS:
Attachment A - Draft Ordinance Approving Amendment (Includes proposed DA
Amendment and current Annexation and Development Agreement)
Attachment B - October 6, 2016 Planning Commission Resolution and Meeting Minutes
Attachment C - Applicant Letter
Attachment D - Newport Ridge/Newport Coast Map
Attachment E - Applicant Letter Dated November 14, 2016
Attachment F - State Public Resources Code Section 30519.2
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Attachment A
Draft Ordinance Approving Amendment
(Includes proposed DA Amendment and
current Annexation and Development
Agreement)
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ORDINANCE NO. 2016 -
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
NEWPORT BEACH, CALIFORNIA, APPROVING
DEVELOPMENT AGREEMENT NO. DA2016-002
AMENDING THE ANNEXATION AND DEVELOPMENT
AGREEMENT BETWEEN THE CITY OF NEWPORT
BEACH, THE IRVINE COMPANY, AND IRVINE
COMMUNITY DEVELOPMENT COMPANY CONCERNING
THE NEWPORT COAST AND ADJACENT PROPERTIES
(PA2016-165)
WHEREAS, an application was filed by The Irvine Company (TIC), with respect
to property commonly referred to as Newport Coast and Newport Ridge as legally
described in the Annexation and Development Agreement Between the City of Newport
Beach, California (City), and Irvine Company and Irvine Community Development
Company Concerning the Newport Coast and Adjacent Properties (Agreement), which
is attached hereto and incorporated by reference herein;
WHEREAS, in 2001, the City, TIC, and Irvine Community Development
Company entered into the Agreement for the annexation and development of
approximately 7,799 acres along Newport Coast (Property);
WHEREAS, the Property was annexed into the City on January 1, 2002;
WHEREAS, TIC requests to extend the term of the Agreement as specified in
Section 10.1 of the Agreement from January 1, 2017 to January 1, 2032 (Amendment);
WHEREAS, no land use changes, including changes to commercial and
residential development capacity are proposed by City or TIC in this Amendment;
WHEREAS, the Property includes the following General Plan Land Use
Categories: Single -Unit Residential Detached (RS -D), Multiple Residential (RM),
Multiple Residential Detached (RM -D), Neighborhood Commercial (CN), Visitor Serving
Commercial (CV), Open Space (OS), Parks and Recreation (PR), Private Institutions
(PI), and Public Facilities (PF);
WHEREAS, the Property is located in the Newport Coast Planned Community
(PC 52) and Newport Ridge Planned Community (PC 53) Zoning Districts;
WHEREAS, the portion of the Property, located within the boundaries of the
Newport Coast Local Coastal Program (LCP) and Newport Coast Planned Community
(PC 52), is located within the coastal zone;
WHEREAS, the portion of the Property located within the boundaries of the
Newport Ridge Planned Community (PC 53) is not located within the coastal zone;
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Ordinance No. 2016 -
Page 2 of
WHEREAS, the Property is subject to the Cooperative Agreement between the
County of Orange (County) and the City, dated October 9, 2001 (the Cooperative
Agreement). Pursuant to the Cooperative Agreement, the County shall retain land use
authority for the Property until: (1) the development of the Property is complete; or (2)
the City agrees to assume municipal land use authority;
WHEREAS, the Cooperative Agreement between the County and the City
remains in full force and effect until all entitlement granted by the Development
Agreement has been completed, or unless the conditions for expiration specified in
Section 51302 of the Government Code are satisfied;
WHEREAS, unless otherwise provided by the Agreement, the ordinances, rules,
plans and policies of the City which govern permitted uses of land, the density of
development, and the design, improvement and construction standards and
specifications, applicable to development of the Property, shall be those ordinance
rules, plans and policies in force at the time of execution of the Agreement;
WHEREAS, the Agreement shall not prevent the City in subsequent actions
applicable to the Property, from applying new rules, regulations, and policies which do
not conflict with those rules, regulations, and policies applicable to the Property as set
forth in the Agreement, nor shall the Agreement prevent the City from denying or
conditionally approving any subsequent development project application on the basis of
such existing or new rules, regulations, and policies;
WHEREAS, the Amendment will continue to allow the development of a
residential community, containing a mix of housing types, supporting retail and active
parklands, consistent with the land uses, densities and intensities of the Newport Coast
Planned Community (PC 52) and Newport Ridge Planned Community (PC 53) Zoning
Districts, Newport Coast LCP and City's General Plan;
WHEREAS, the Amendment does not add any lots, units, building sites or
structures to the Property and does not change the approved design or uses allowed by
Newport Coast Planned Community (PC 52) and Newport Ridge Planned Community
(PC 53) Zoning Districts, Newport Coast LCP and the City's General Plan;
WHEREAS, the portion of the Property located within the coastal zone is
governed by the previously certified and currently effective Newport Coast segment of
the Orange County LCP Second Amendment;
WHEREAS, because the Property is governed by the certified LCP, this
Amendment is effective upon approval by the City Council and no further approval need
be obtained from the California Coastal Commission under California Government Code
Section 65869 or Newport Beach Municipal Code Section (NBMC) 15.45.090;
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Ordinance No. 2016 -
Page 3 of
WHEREAS, the proposed project is consistent with the goals and policies of the
City's General Plan;
WHEREAS, this Amendment is intended to be an amendment pursuant to
California Government Code Section 65868 and NBMC Chapter 15.45. This
Amendment has been considered and approved in the same manner as the Agreement
with public hearings pursuant to California Government Code Section 65867 and NBMC
Chapter 15.45;
WHEREAS, this Amendment includes a public benefit consisting of a Public
Benefit Fee in the sum of seventy-one thousand and one -hundred dollars ($71,100) per
hotel unit that is converted into a residential dwelling unit and the sum of ten thousand
dollars ($10,000) per hotel unit that is constructed;
WHEREAS, this Amendment includes a public benefit consisting of a one (1)
time renewal fee in the amount of five million dollars ($5,000,000) (Renewal Fee), which
shall be due and payable to City upon the Effective Date of this Amendment;
WHEREAS, this Renewal Fee shall be credited against the Public Benefit Fee
paid by TIC to City;
WHEREAS, a public hearing was held on September 27, 2016, in the Council
Chambers located at 100 Civic Center Drive, Newport Beach; a notice of time, place and
purpose of the public hearing was given in accordance with the NBMC, and evidence,
both written and oral, was presented to, and considered by, the Planning Commission at
this public hearing;
WHEREAS, the Planning Commission voted 6-0 to recommend approval of the
requested Amendment with the added provision that the length of the extension be
commensurate with the public benefit provided to the City by TIC;
WHEREAS, on November 7, 2016, in the Council Chambers located at 100 Civic
Center Drive, Newport Beach; a notice of time, place and purpose of the public hearing
was given in accordance with the NBMC, and the City Council voted to continue the
public hearing to November 22, 2016;
WHEREAS, a public hearing was held on November 22, 2016, in the Council
Chambers located at 100 Civic Center Drive, Newport Beach; a notice of time, place and
purpose of the public hearing was given in accordance with the NBMC, and evidence,
both written and oral, was presented to, and considered by, the City Council at this
public hearing;
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Ordinance No. 2016 -
Page 4 of
NOW, THEREFORE, the City Council of the City of Newport Beach ordains as
follows:
Section 1: The City Council of the City of Newport Beach hereby approves
Development Agreement No. DA2016-002, as set forth in Exhibit "A," which is attached
hereto and incorporated herein by reference.
Section 2: The recitals provided in this ordinance are true and correct and are
incorporated into the operative part of this ordinance;
Section 3: 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, sentence, clause or phrase hereof, irrespective of the fact that any
one (1) or more sections, subsections, sentences, clauses or phrases be declared
invalid or unconstitutional;
Section 4: All significant environmental concerns for the proposed project
have been addressed in the previously prepared environmental documents certified by
the County and described in Exhibit "C" of the Agreement, which is attached hereto and
incorporated by reference herein, and the City intends to use said documents for the
Amendment, and the City Council further finds that there are no additional reasonable
alternative or mitigation measures that should be considered in conjunction with this
Amendment.
Section 5: The Mayor shall sign and the City Clerk shall attest to the passage
of this ordinance. The City Clerk shall cause the ordinance, or a summary thereof, to be
published pursuant to City Charter Section 414.
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Ordinance No. 2016 -
Page 5 of
This ordinance was introduced at a regular meeting of the City Council of the City
of Newport Beach held on the 22nd day of November 2016, and adopted on the 29th
day of November, 2016, by the following vote, to -wit:
AYES, COUNCILMEMBERS
NOES, COUNCILMEMBERS
ABSENT COUNCILMEMBERS
DIANE B. DIXON, MAYOR
ATTEST:
LEILANI 1. BROWN, CITY CLERK
APPROVED AS TO FORM:
CITY ATTORUEY'S OFFICE
AARON C. HARP, CITY ATTORNEY
Exhibit A: Amendment to Development Agreement
Exhibit B: Existing Development Agreement (Including Exhibits)
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EXHIBIT "A"
Amendment to Development Agreement
24-13
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
Attn: City Clerk
(Space Above This Line Is for Recorder's Use Only)
This Amendment is recorded at the request and
for the benefit of the City of Newport Beach and
is exempt from the payment of a recording fee
pursuant to Government Code §§ 6103 and
27383.
FIRST AMENDMENT TO ANNEXATION AND
DEVELOPMENT AGREEMENT
between
THE CITY OF NEWPORT BEACH,
THE IRVINE COMPANY,
and
IRVINE COMMUNITY DEVELOPMENT COMPANY
CONCERNING THE NEWPORT COAST AND
ADJACENT PROPERTIES
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FIRST AMENDMENT TO DEVELOPMENT AGREEMENT
THIS FIRST AMENDMENT TO DEVELOPMENT AGREEMENT ("Amendment") is
executed this day of , 2016, by and between: (1) the City of Newport
Beach, a municipal corporation and charter city ("City"), (2) The Irvine Company, a
Delaware limited liability company licensed to do business in California ("TIC"), and PH
Finance, LLC, an affiliate of TIC ("Affiliate"). The City, TIC, and the Affiliate shall
individually be referred to as "Party" and shall collectively be referred to as the "Parties."
RFC'ITAI R
1. In 2001, the City, TIC, and Irvine Community Development Company entered into the
Annexation and Development Agreement Between The City of Newport Beach and The
Irvine Company and Irvine Community Development Company Concerning the Newport
Coast and Adjacent Properties ("Development Agreement") for the annexation and
development of approximately 7,799 acres along Newport Coast ("Property"). The Property
is described on Exhibit A to the Development Agreement and is depicted on Exhibit B to the
Development Agreement.
2. The Property was annexed into the City on January 1, 2002. Unless otherwise amended,
the Development Agreement will expire on January 1, 2017.
3. Since 2001, TIC and/or the Affiliate have developed a portion of the Property. However,
other portions of the Property remain undeveloped, or developed to an extent that is less
than permitted by the Property's entitlements, due to current market conditions. The
Parties wish to ensure that certain development regulations contained in the Development
Agreement that are in effect through January 1, 2017, continue to govern these portions of
the Property. Therefore, the Parties wish to extend the term of the Development
Agreement by an additional fifteen (15) years.
4. This Amendment is intended to be an amendment pursuant to California Government Code
Section 65868 and Newport Beach Municipal Code ("NBMC") Chapter 15.45. This
Amendment has been considered and approved in the same manner as the Development
Agreement with public hearings pursuant to California Government Code Section 65867
and NBMC Chapter 15.45.
5. The Property is governed by the previously certified and currently effective Newport Coast
segment of the Orange County Local Coastal Program ("LCP") Second Amendment.
Because the Property is governed by the certified LCP, this Amendment is effective upon
approval by the City Council and no further approval need be obtained from the California
Coastal Commission.
6. The Property is subject to the Cooperative Agreement between the County of Orange
("County") and the City, dated October 9, 2001 ("Cooperative Agreement"). Pursuant to the
Cooperative Agreement, the County shall retain land use authority for the Property until: (1)
the development of the Property is complete; or (2) the City agrees to assume municipal
24-15
land use authority. The Cooperative Agreement between the County and the City remains
in full force and effect until all entitlement granted by the Development Agreement has been
completed, or unless the conditions for expiration specified in Section 51302 of the
Government Code are satisfied.
7. The City Council has evaluated the potential environmental impacts of this Amendment and
has determined that any potential impacts have been analyzed pursuant to the
environmental documents listed in Exhibit C to the Development Agreement, which were
prepared in accordance with the California Environmental Quality Act ("CEQA"). There are
no circumstances present that would require a new, subsequent or supplemental
environmental impact report for this Amendment, under the provisions of CEQA.
8. On October 6, 2016, City's Planning Commission held a public hearing on this Amendment,
made findings and determinations with respect to this Amendment, and recommended to
the City Council that the City Council approve this Amendment.
9. On November 8, 2016, the City Council also held a public hearing on this Amendment and
considered the Planning Commission's recommendations and the testimony and
information submitted by City staff, TIC, Affiliate, and members of the public. On November
8, 2016, pursuant to the applicable state law (California Government Code sections 65864-
65869.5) and local law (NBMC Chapter 15.45), the City Council adopted its Ordinance No.
2016-_ finding this Amendment to be consistent with the City of Newport Beach General
Plan and approving this Amendment.
AGREEMENT
NOW, THEREFORE, City and TIC agree as follows:
1. Property. As set forth in Sections 2.2 and 2.3 of the Development Agreement, the
Development Agreement has been extinguished as to properties that are no longer owned
by TIC or a TIC affiliate.
2. Effective Date. This Amendment shall not become effective and no Party shall have any
rights or obligations hereunder until the "Effective Date," which for purposes of this
Amendment shall mean the thirty-first (31st) day following the approval or adoption of this
Amendment by the City Council and signature by the City.
3. Term. Section 10.1 of the Development Agreement is amended to read as follows:
"This Agreement shall continue in full force and effect until the
earlier of the following: (i) January 1, 2032; or (ii) the date this
Agreement is terminated pursuant to Section 7.3 of this
Agreement."
4. Land Use Regulations. The rules, regulations, and official policies governing the permitted
uses of land, density, design, and improvement of the remaining portions of the Property
(the "Land Use Regulations") shall continue to be those defined in Section 1.1.9 of the
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Development Agreement. These Land Use Regulations shall not be changed during the
Term of this Amendment except upon the written consent of the Parties.
5. Public Benefits.
5.1 Public Benefit Fee. As consideration for City's approval and performance of its
obligations set forth in this Amendment, TIC shall pay to City a fee that shall be in addition
to any other fee or charge to which the Property would otherwise be subject (herein, the
"Public Benefit Fee") in the sum of seventy-one thousand and one -hundred dollars
($71,100) per hotel unit that is converted into a residential dwelling unit and the sum of ten
thousand dollars ($10,000) per hotel unit that is constructed. The Public Benefit Fee shall
be paid by TIC to City at the time of building permit issuance for the residential dwelling unit
and/or hotel unit. The Public Benefit Fee shall increase beginning on January 1 st following
the first anniversary of the Effective Date by the percentage increase in the CPI Index
between the Effective Date and said January 1st date (the first "Adjustment Date") and
thereafter the Public Benefit Fee shall increase on each subsequent January 1 st during the
Term of this Amendment (each, an "Adjustment Date") by the percentage increase in the
CPI Index in the year prior to the applicable Adjustment Date. The amount of the
percentage increase in the CPI 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 Amendment falls on July 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). In no event, however, shall application of the CPI Index reduce the
amount of the Public Benefit Fee (or unpaid portion thereof) below the amount in effect
prior to any applicable Adjustment Date.
5.2 Renewal Fee. As further consideration for City's approval and performance of its
obligations set forth in this Amendment, TIC shall pay to City a one (1) time renewal fee in
the amount of five million dollars ($5,000,000) ("Renewal Fee"), which shall be due and
payable to City upon the Effective Date of this Amendment. This Renewal Fee shall be
credited against the Public Benefit Fee paid by TIC to City under Section 5.1 above.
5.3 Voluntary Payment of Fees. The City has not designated a specific project or
purpose for the Public Benefit Fee or Renewal Fee. TIC and Affiliate acknowledge by their
approval and execution of this Amendment that TIC is voluntarily agreeing to pay the Public
Benefit Fee and Renewal Fee, that TIC's obligation to pay the Public Benefit Fee and
Renewal Fee is an essential term of this Amendment and is not severable from City's
obligations and TIC's and Affiliate's vested rights to be acquired hereunder, and that TIC
and Affiliate expressly waive any constitutional, statutory, or common law right they might
have in the absence of this Amendment to protest or challenge the payment of the Public
Benefit Fee or Renewal Fee on any ground whatsoever, including without limitation
pursuant to the 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
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Amendment for TIC's or Affiliate's default, if TIC shall fail to timely pay any portion of the
Public Benefit Fee or Renewal Fee when due, City shall have the right to withhold issuance
of any building permits, occupancy permits, or other development or building permits for the
Property.
6. Future Amendments. TIC and the Affiliate may, with the approval of the City, separately
amend the Development Agreement as to each entity's own parcel(s) located within the
Property.
7. No Third Party Beneficiaries. The only parties to this Agreement are the City, TIC, and the
Affiliate. This Amendment 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.
8. Notice of Intention to Amend. In enacting this Amendment, the City has provided for public
notice and hearing in the manner provided by California Government Code Section 65867.
9. Compliance with NBMC Chapter 15.45 and California Government Code Section 65867.5.
NBMC Chapter 15.45 and California Government Code Section 65867.5 provides that a
development agreement is a legislative act that shall be approved by ordinance and subject
to referendum. A development agreement shall not be approved unless the City Council
finds that the provisions of the agreement are consistent with the general plan and any
applicable specific plan. These requirements of NBMC Chapter 15.45 and California
Government Code Section 65867.5 have been satisfied by the City's finding that this
Amendment is consistent with the City's General Plan, and the City's approval of this
Amendment by ordinance.
10.Compliance with NBMC Title 19 and California Government Code Section 66473.7. The
area subject to the Amendment may include a future subdivision, and the City may, in its
sole and absolute discretion, approve certain tentative maps for such subdivision. Any
such subdivision will comply with all applicable provisions of NBMC Title 19 and the
Subdivision Map Act including, but not limited to, California Government Code Section
65867.5 in that any tentative maps will be approved by the City in compliance with
California Government Code Section 66473.7.
11. Section Headings. All section headings are inserted for convenience only and shall not
affect construction or interpretation of this Agreement.
12.Authority to Execute. The persons executing this Amendment warrant and represent that
they have the authority to execute this Amendment on behalf of the party for which they are
executing this Amendment. They further warrant and represent that they have the authority
to bind their respective party to the performance of its obligations under this Amendment.
The City Manager or his/her designee has the authority to implement the terms of this
Amendment and execute any documents in furtherance of the terms of this Amendment
and the Development Agreement so long as they have been reviewed and approved as to
form by the City Attorney.
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13. Recordation. This Amendment and any amendment, modification, or cancellation to it shall
be recorded in the Office of the County Recorder of the County of Orange, by the City of
Newport Beach City Clerk in the period required by California Government Code section
65868.5 and NBMC Section 15.45.090.
14. Counterparts. This Amendment may be executed in two (2) 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 (1) and the
same Amendment.
15. Indemnity. Indemnity Obligations of TIC.
15.1 Indemnity Arising From Acts or Omissions of TIC. Except to the extent caused
by the intentional misconduct or gross active negligence of City or one (1) or more of City's
officials, employees, agents, attorneys, and contractors (collectively, the "City's Affiliated
Parties") , TIC shall indemnify, defend, and hold harmless City and City's Affiliated Parties from
and against all suits, claims, liabilities, losses, damages, penalties, obligations, and expenses
(including but not limited to reasonable attorneys' fees and costs) (collectively, a "Claim") that
may arise, directly or indirectly, from the acts, omissions, or operations of TIC or TIC's agents,
affiliates, contractors, subcontractors, agents, or employees in the course of development of
the project or any other activities of TIC relating to the Property or pursuant to this
Amendment. 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 TIC shall pay the cost for defense of any
Claim. The indemnity provisions in this Section 15.1 shall commence on the date of the
adopting ordinance and shall survive the termination of the Development Agreement.
15.2 Third Party Litigation. In addition to its indemnity obligations set forth in Section
15.1, TIC shall indemnify, defend, and hold harmless City and City's Affiliated Parties from and
against any Claim against City or City's Affiliated Parties seeking to attack, set aside, void, or
annul the approval of this Amendment, the Development Agreement, 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 the approval of any permit
granted pursuant to this Amendment. Said indemnity obligation shall include payment of
reasonable attorney's fees, expert witness fees, and court costs. City shall promptly notify TIC
of any such Claim and City shall cooperate with TIC in the defense of such Claim. 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 TIC's indemnity obligation, provided
that such counsel shall reasonably cooperate with TIC in an effort to minimize the total
litigation expenses incurred by TIC. In the event either City or TIC recovers any attorney's
fees, expert witness fees, costs, interest, or other amounts from the party or parties asserting
the Claim, TIC shall be entitled to retain the same (provided it has fully performed its indemnity
obligations hereunder). The indemnity provisions in this Section 15.2 shall commence on the
date of the adopting ordinance and shall survive the termination of the Development
Agreement.
16. No Attorneys' Fees. In the event of any legal action or dispute between the Parties
arising under this Amendment, the prevailing Party shall not be entitled to attorneys' fees.
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[SIGNATURE PAGE FOLLOWS]
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SIGNATURE PAGE TO
FIRST AMENDMENT TO DEVELOPMENT AGREEMENT
"TIC"
THE IRVINE COMPANY LLC
By:
Its:
By:
Its:
"AFFILIATE"
PH FINANCE LLC
By:
Its:
By:
Its -
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"CITY"
ATTEST:
Leilani I. Brown
City Clerk
-1»00VLJ210ZV 2to] MIS] Vkv� I
Aaron C. Harp
City Attorney
CITY OF NEWPORT BEACH
Ac
Diane B. Dixon
Mayor
24-22
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
ss
COUNTY OF )
On 2016, before me, ,
a Notary Public, personally appeared
, who proved to me on the basis of
satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s),
or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
(Seal)
Signature of Notary Public
24-23
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
ss
COUNTY OF )
On 2016, before me,
a Notary Public, personally appeared
, who proved to me on the basis of
satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s),
or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
(Seal)
Signature of Notary Public
24-24
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
ss
COUNTY OF )
On 2016, before me,
a Notary Public, personally appeared
, who proved to me on the basis of
satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s),
or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
(Seal)
Signature of Notary Public
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EXHIBIT "B"
Existing Development Agreement (Including Exhibits)
24-26
0
RECORDING REQUESTED AND
WHEN RECORDED RETURN TO:
City Attorney's Office
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA, 92658
Recorded in Official Records, County of Orange
Gary Granville, Clerk -Recorder
IIIIIIIII 1111111! til II{il!illllllillll IIIIlIf INO FEE
20010800494 01:02pm 11/08101
115 15 Al2 N07 47
0-00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Space above this line for Recorder's use only,
EMPT WMING REQUEST PUt
GOIi MENT CODE 6103
ANNEXATION AND DEVELOPMENT AGREEMENT
BETWEEN THE CITY OF NEWPORT BEACH. -
AND
THE IRVINE COMPANY
AND
IRVINE COMMUNITY DEVELOPMENT COMPANY
CONCERNING THE NEWPORT COAST
AND ADJACENT PROPERTIES
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ANNEXATION AND DEVELOPMENT AGREEMENT
This Annexation and Development Agreement (hereinafter "Agreement") is
entered into effective as of August 23, 2001, (hereinafter the "Effective Date") by
and among the CITY OF NEWPORT BEACH (hereinafter "CITY"), and THE
IRVINE COMPANY and IRVINE COMMUNITY DEVELOPMENT COMPANY
(hereinafter collectively "OWNER").
RECITALS
A. OWNER collectively owns a substantial portion of the real property
("Property") described on Exhibit "A" and depicted on Exhibit "B," consisting of
approximately 7799 acres.
B. The Property is currently in the unincorporated area of the County of
Orange ("County"). OWNER has obtained development approvals from the
County and the California Coastal Commission for the majority of the Property
from the County and has commenced subdivision and development of the
Property under the jurisdiction of the County.
C. The development approvals for the Property have been granted after
a lengthy planning process that involved the careful review of numerous
environmental documents (Planning and Environmental History is attached as
Exhibit C). The development approvals include:
1. The County of Orange Newport Coast Local Coastal Program
and Master Coastal Development Permit for that portion of the
Property in the Coastal Zone.
2. A Development Agreement with the County (County
Agreement).
3. The Newport Ridge Planned Community Plan.
4. Subdivision Maps.
D. The Property is also part of the Natural Communities Conservation
Plan (NCCP) — a complex agreement that requires OWNER to dedicate portions
of the Property upon completion of certain phases of development. OWNER is
also required to dedicate large portions of the Property pursuant to the
development approvals.
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E. OWNER was required, by the development approvals, to make
costly infrastructure improvements far in excess of those necessary to mitigate the
impacts, or serve the needs, of the development. OWNER was required to make,
and has made, these extraordinary improvements prior to development of the
Property.
F. OWNER has acquired a fully vested right to develop the Property in
accordance with the development approvals because of the extraordinary
expenditures for public and private improvements made in reliance on the
development approvals, the dedications made in reliance on the development
approvals and the County Development Agreement.
G. CITY and OWNER intend for this Agreement to fully conform to the
development approvals and to fully facilitate full implementation of the Project, as
conditioned by the County and Coastal Commission. To the maximum extent
permitted by law, this Agreement is intended to be the functional equivalent of, or
a supplement to, the County Development Agreement in light of the CITY's
intention to allow County to retain all municipal land use authority over the
Property until such time as the discrete portions of the Project are complete.
H. City is desirous of annexing the Property but recognizes that the
development approvals for the Property involve complex and interrelated planning
documents. CITY does not have sufficient staff to timely process the permits .
required for implementation of the Project in compliance with all the development
approvals. Moreover, the development approvals and land use plan involve the
dedication of valuable habitat and open space within and outside of the
boundaries of the Property and City does not have the personnel and expertise to
ensure that dedications occur as planned.
I. CITY and OWNER have discussed the process and terms and
conditions of annexing the Property to CITY, and each has determined that it is in
their respective best interests to pursue that annexation pursuant to the terms of
this Agreement and the development approvals. In particular CITY desires
assurances that OWNER will support eventual annexation of all of the Property to
CITY, in order to:
(a) Facilitate the timely and orderly integration of the Property into
the CITY consistent with the CITY's sphere of influence;
(b) Facilitate planning and provision of municipal services to the
Property without any adverse fiscal impact on the CITY or the
ultimate owners of the property; and
(c) Ensure consistency with and implement the CITY's General Pian.
At the same time, OWNER desires to obtain assurances from CITY that,
Page 3 of 23
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subsequent to annexation:
(a) OWNER will be able to develop the Property to the full extent
permitted by the development approvals granted by the County and
the Coastal Commission subject to conditions of approval imposed
by the Coastal Commission and the County as well as consistency
with the City's General Plan;
(b) Development will be processed by the County in accordance with
a uniform set of land use and building rules, regulations and
requirements, as established by the development approvals given by
the County for the Property prior to its annexation; and
(c) Development of the Property will be subject only to costs, fees,
processing requirements, conditions or exactions that would have
been imposed had the Property not been annexed to CITY.
J. In addition to the authority at common law for annexation
agreements, Government Code Sections 65864 et seq. ("Development
Agreement Law"), and Chapter 15.45 of the Newport Beach Municipal Code
authorize CITY to enter into binding development agreements with persons having
a legal or equitable interest in real property. This Agreement is consistent with the
public policy that supports development agreements in that it strengthens the
public planning process, facilitates implementation of comprehensive planning,
provides significant public benefits, and reduces the economic costs of
development.
K. The City Council has found that this Agreement is in the best public
interests of the CITY and its residents, that adopting this Agreement constitutes a
present exercise of its police power, and that this Agreement is consistent with the
City's General Plan and the Newport Beach Municipal Code and Charter.
L. This Agreement is not intended to, and shall not be construed, to
impair the rights and obligations of OWNER, or other involved parties under and
pursuant to the Newport Coast Local Coastal Program, Second Amendment, and
the Litigation Settlement Agreement entered into June 27, 1997, by and among
OWNER, the Friends of the Irvine Coast, Laguna Greenbelt, Inc., and Stop
Polluting Our Newport.
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COVENANTS
NOW, THEREFORE, the Parties agree as follows:
't. DEFINITIONS AND EXHIBITS.
1.1 Definitions. This Agreement uses a number of terms having
specific meanings, as defined below. These specially defined terms are
distinguished by having the initial letter capitalized, or all letters capitalized, when
used in the Agreement. The defined terms include the following:
1.1.1 "Agreement" means this Annexation and Development Agreement.
1. 1.2 "Coastal Zone Area" means that portion of the Property that is
subject to the provisions of the California Coastal Act, Public Resources
Code section 30000 et seq.
1.1.3 "CITY" means the City of Newport Beach, a California charter city.
1.1.4 "County' means the County of Orange, a political subdivision of the
State of California.
1.1.5 "Development' whether or not capitalized means the improvement of
the Property for the purposes of completing the structures, improvements
and facilities comprising the Project including, but not limited to: grading;
the construction of infrastructure and public facilities related to the Project
whether located within or outside the Property; the construction of buildings
and structures; and the installation of landscaping and park facilities and
improvements. For purposes of this Agreement, however, "Development"
does not include any remodeling, reconstruction, or other building or
grading activity by any person subsequent -to the termination of this
Agreement as provided in and pursuant to Section 2.3.3 below.
1. 1.6 "Development Approvals" means all permits, licenses, consents,
rights and privileges, and other actions subject to approval or issuance by
County or CITY in connection with Development of the Property, including
but not limited to:
(a) General plans and general plan amendments adopted by the County
or the CITY;
(b) Specific plans and specific plan amendments;
(c) Zoning and rezoning adopted by the County or the CITY;
(d) Tentative and final subdivision and parcel maps;
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(e) Variances, conditional use permits, master plans, public use permits
and plot plans; and
(f) Grading and building permits.
1.1.7 "Development Plan" means the plan for Development of the
Property, including the planning and zoning standards, regulations, and
criteria for the Development of the Property that are contained in and
consistent with the Development Approvals. The components of the
Development Plan are more fully described in Exhibit "D."
1.1.8 "Effective Date" means the date this Agreement is approved by the
CITY and effective pursuant to the CITY Charter as shown in the first
paragraph.
1.1.9 "Land Use Regulations" means all ordinances, resolutions, codes,
rules, regulations and official policies governing Development and use of
land applicable to the Property pursuant to this Agreement, including, the
permitted use of land, the density or intensity of use, subdivision
requirements, the maximum height and size of proposed buildings, the
provisions for reservation or dedication of land for public purposes, and the
design, improvement and construction standards and specifications
applicable to the Development of the Property. "Land Use Regulations"
does not include any CITY ordinance, resolution, code, rule, regulation or
official policy, governing:
(a) The conduct of businesses, professions, and occupations;
(b) Taxes and assessments except as provided in Section 4.9;
(c) The control and abatement of nuisances;
(d) The granting of encroachment permits and the conveyance of rights
and interests which provide for the use of or the entry upon public
property; and
(e) The exercise of the power of eminent domain
1.1.10 "OWNER" means individually and collectively The Irvine Company
and Irvine Community Development Company, and when appropriate in
context, their respective successors in interest to all or any part of the
Property.
1.1.11 "Mortgagee" means a mortgagee of a mortgage, a beneficiary
under a deed of trust or any other security -device, a lender and their
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successors and assigns.
1.1.12 "Project' means the Development of the Property consistent with
the Development Plan.
1.1.13 "Property' means the real property described in Exhibit "A" and
shown on Exhibit "B" to this Agreement.
1.1.14 "Subsequent Development Approvals" means all Development
Approvals subsequent to the Effective Date in connection with
Development of the Property.
1.1.15 "Subsequent Land Use Regulations" means any Land Use
Regulations adopted and effective after the Effective Date of this
Agreement, other than the Development Plan.
1.1.16 "Term" shall mean the period of time from the Effective Date until
the termination of this Agreement as provided in subsection 10.1, or earlier
termination as provided in Section 7.
1.2 Exhibits. The following documents are attached to, and by this
reference made a part of, this Agreement:
Exhibit "A" Legal Description of the Property.
Exhibit "B" Map showing Property and its
location.
Exhibit "C" Planning and Environmental History.
Exhibit "D" List of County Development Approvals.
Exhibit "E" Mitigation Measures.
Exhibit "F" Affordable Housing Implementation Plan.
2. GENERAL PROVISIONS.
2.1 Binding Effect of Agreement. This Agreement shall be binding on
the CITY from and following the Effective Date. However, CITY shall
have no right or duty with respect to the Property until annexation of
the Property to CITY and CITY has fully complied with the conditions
to OWNER's support for annexation. These conditions include the
execution of a cooperative agreement that allows the County to
retain all municipal land use jurisdiction and all responsibility for
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processing Development Approvals.
2.2 Assignment by OWNER.
2.2.1 Right to Assign. OWNER shall have the right to sell,
transfer or assign the Property in whole or in part (provided that no
transfer violates the Subdivision Map Act, Government Code Section
66410, et seq.), and in so doing to assign, at any time during the
term of this Agreement and to any person, partnership, joint venture,
firm or corporation, its rights and obligations under this Agreement
as the same may relate to the portion of the Property being
transferred.
2.2.2 Release of Transferring Owner. Upon the sale,
transfer or assignment of all or a portion of the Property, the
transferring OWNER shall be released of all obligations under this
Agreement that relate to the portion of the Property being
transferred; provided that the obligations under Sections 4 and 5 of
this Agreement that relate to the portion of the Property being
transferred are assumed by and enforceable against the transferee.
2.2.3 Termination of Agreement With Respect to Individual
Residential Lots On Sale to Public and Completion of Construction.
Notwithstanding any other provisions of this Agreement, the
obligations of OWNER pursuant to this Agreement shall terminate
with respect to any residential lot and such residential lot shall be
released and no longer be subject to this Agreement upon
satisfaction of both of the following conditions:
(a) The residential lot has-been finally subdivided and
individually (and not in "bulk") sold or leased (for a period
longer than one year) to a member of the public or other
ultimate user; and,
(b) A certificate of occupancy has been issued or a final
building inspection has been conducted and approved for the
primary dwelling unit on the residential lot.
2.2.4 Termination of Agreement With Respect to Non -
Residential Parcels. Notwithstanding any other provisions of this
Agreement, the obligations of Owner pursuant to this Agreement
shall terminate with respect to any non-residential parcel and the
non-residential parcel shall be released and no longer be subject to
this Agreement at such time as the parcel has been fully improved
and occupied consistent with the allowed intensity of development
under the Development Plan.
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3. PRE -ANNEXATION OBLIGATIONS AND COMMITMENTS.
3.1 Annexation of Property. Consistent with and subject to the terms
and conditions of this Agreement and specifically this Subsection, CITY
may, in one annexation proceeding or several annexation proceedings,
annex the Property under such conditions as are imposed by or through the
Orange County Local Agency Formation Commission and reasonably
acceptable to OWNER. Conditions shall be deemed to be reasonably
acceptable to OWNER unless the conditions impair or interfere with
OWNER's rights to develop or materially increase the cost of development.
OWNER's consent to annexation of all or a portion of the Property is
contingent on, and OWNER has reasonably relied on, CITY's commitments
in Section 3 and 4 of this Agreement.
3.1.1 Annexation Before Project Completion. OWNER will support
CITY's annexation of the Property in its entirety before project
completion, provided that the Property may be fully developed
to the full extent permitted in the Development Plan and as
evidenced by satisfaction of each of the following conditions:
(a) The Legislature has approved, and the Governor has
signed, legislation that clarifies provisions of the Coastal Act
such that annexation of the Property (1) will not alter or affect
the validity and enforceability of the Newport Coast Local
Coastal Program, Second Amendment, including any
amendments applicable to the Property and any related
coastal development permits; or (ii) deprive the County of
authority to issue coastal development permits pursuant to
the terms of this Agreement, any ordinance, joint powers
agreement, or other mechanism that confers municipal land
use authority to the County after annexation and the Newport
Coast Local Coastal Program, Second Amendment or any
subsequent amendments that are certified by the California
Coastal Commission;
(b) The City adopts, and maintains during the term of this
Agreement, general plan and zoning designations for the
Property that are essentially identical to the Newport Coast
Local Coastal Program, general plan and zoning designations
adopted by the County and in effect as of the Effective Date.
(c) The City authorizes County to retain all municipal land use
authority (including the issuance of building and grading
permits) to the County pursuant to a cooperative agreement
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0 r
until such time as development is complete with each
Planning Area or until OWNER consents, in writing, to an
assumption of municipal land use authority over all or a
portion of the Property.
3.1.2 Ultimate Annexation. OWNER will fully support CITY
annexation of all or a portion of the Property without satisfying
the provisions of Section 3.1.1, provided that all lots and/or
parcels within the area to be annexed have received building
permits for construction of structure(s) consistent with the
Development Approvals, a certificate of occupancy has been
issued or a final building inspection has been conducted and
annexation will not interfere with, affect, or impair the
Development Approvals or OWNER's ability to complete the
Project.
3.2 Environmental Impacts and Mitigation. The parties acknowledge
that Environmental Impact Reports, environmental documents and functional
equivalents ("Environmental Documents - described in Exhibit C) have been
prepared and certified for the Project by County and/or approved by the Coastal
Commission. CITY has reviewed and evaluated the Environmental Documents to
determine if the impacts of the Project, as represented by this Agreement, the
Development Plan, and the CITY approvals, were fully analyzed and evaluated.
CITY has also reviewed the Environmental Documents and all relevant existing
facts and circumstances to determine if any of the events that require preparation
of a subsequent or supplemental environmental document have occurred. CITY
has determined based on that review that none of the events described in Section
21166 of the Public Resources Code or Sections 15162 or 15163 of the CEQA
Guidelines have occurred. CITY has specifically determined that the detachment
of the Property from County and the annexation of the Property to CITY do not
require preparation of any subsequent or supplemental. environmental impact
report for the Project because the reorganization will not increase, decrease, or
modify any Development or dedication when compared to the entitlement prior to
annexation. CITY has also determined that, subject to incorporation of the
mitigation measures identified in Exhibit "E" and except as specifically provided in
this Agreement, there is no current or anticipated deficiency in any municipal
service or facility (including planned community and neighborhood parks, drainage
and flood control facilities, circulation system infrastructure, and public safety
services) resulting from Development of the Project. The mitigation measures
identified in Exhibit "E" are incorporated by reference into the Development Plan,
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3.3 Additional Pre -Annexation Understandings. As a further
inducement to OWNER to support the annexation of the Property to CITY, CITY
agrees that, as of the date of its approval of this Agreement, all County affordable
housing requirements associated with development of the Property have been
satisfied. CITY also acknowledges that the OWNER has a vested right to proceed
with development pursuant to the County Agreement and that no additional
affordable housing requirements shall be imposed on development of the Property
pursuant to the CITY's General Plan or otherwise. The Affordable Housing
Implementation Plans approved by the County, describing the manner in which
affordable housing requirements have been satisfied for development of the
Property, are attached to this Agreement as Exhibit "F." Fees payable upon
issuance of any development permit (e.g., building permit or occupancy permit)
will be paid to the issuer of the permit in accordance with County Codes, fee
schedules and requirements for original improvements. Following annexation,
fees shall continue to be paid to the issuer in accordance with the codes and
requirements for additions, remodels and rebuilds of the jurisdiction with land use
authority. CITY agrees that the Project is in full compliance with, and shall not be
further subject to, CITY's Traffic Phasing Ordinance following annexation of the
Property, CITY having determined through this Agreement that:
a. Development of the Property will not cause or make worse any
unsatisfactory level of service at any primary intersection as defined in
the Traffic Phasing Ordinance;
b. Development of the Property has been considered a committed project
which has been incorporated into the CITY's traffic model and Circulation
Element traffic projections and all resulting levels of service have been
accepted in the Circulation Element; and
c. There is an overall reduction in peak hour ICU at impacted intersections
having unsatisfactory levels of service taking into account the circulation
improvements constructed or facilitated by OWNER pursuant to
conditions imposed for development of the Project, including
construction of Newport Coast Drive, extension of San Joaquin Hills
Road, widening of Pacific Coast Highway, and facilitation of construction
of the San Joaquin Hills Transportation Corridor.
3.4 Cooperation. Subject to and in reliance upon the representations
and covenants of the City, OWNER will support the annexation of the Property by
the CITY.
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3.5 Termination of Annexation Proceedings. This Agreement may be
terminated by OWNER in the event that CITY fails to comply with the
requirements of Paragraph 3.1 above with respect to any proposed annexation of
the Property to CITY, or if conditions imposed by or through the Local Agency
Formation Commission on the annexation are determined by either party to
conflict materially with its rights and obligations under any provision of this
Agreement.
4. DEVELOPMENT OF THE PROPERTY AFTER ANNEXATION.
Following annexation of the Property by CITY, the following provisions shall apply:
4.1 Rights to Develop. Subject to the terms of this Agreement,
following annexation of the Property OWNER shall have a vested right to develop
the Property in accordance with, and to the extent of, the Development Plan.
Pending and subsequent to annexation of the Property to CITY, OWNER shall
have the right to seek approvals from County for the Development of the Property,
and to develop the Property, consistent with the Development Plan. CITY
expressly agrees to take no action that would or could (a) interfere with or impair
the Development Approvals; (b) interfere with or impair the OWNER's ability to
complete the project; (c) materially increase the cost of completing the project
without the OWNER's express written consent; or (d) cause the transfer of any
permitting or development review authority pursuant to State or local law,
including Government Code section 30519, from the County to the City or any
other agency until such time as that portion of the Property affected by the transfer
is fully developed pursuant to the Development Plan and provided the transfer
would not interfere or impair OWNER's ability to develop any other portion of this
Property.
4.2 Effect of Agreement on Land Use Regulations. The rules,
regulations and official policies governing permitted uses of the Property, the
density and intensity of use of the Property, the maximum height and size of
proposed buildings, and the design, improvement and construction standards and
specifications applicable to Development of the Property, shall be those contained
in the Development Plan (and those Land Use Regulations not inconsistent with
the Development Plan) and that were in full force and effect on or before June 26,
2001 except as may be otherwise provided by this Agreement,.
4.3 Timing of Development. The Parties acknowledge that OWNER
cannot at this time predict when or the rate at which phases of the Property will be
developed. Such decisions depend upon numerous factors that are not within the
control of OWNER, such as market orientation and demand, interest rates,
absorption, completion and other similar factors. Since the California Supreme
Court held in Pardee Construction Co. v. Cily of Camarillo (1984) 37 Cal. 3d 465,
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that the failure of the parties therein to provide.for the timing of Development
resulted in a later adopted initiative restricting the timing of Development to prevail
over such parties' agreement, it is the parties' intent to cure that deficiency by
acknowledging and providing that OWNER shall have the right to develop the
Property in such order and at such rate and at such times as OWNER deems
appropriate within the exercise of its subjective business judgment. Nothing in this
section is intended to alter the standard time limits of any permits issued to
OWNER pursuant to the Development Approvals.
4.4 Changes and Amendments. The parties acknowledge that
Development of the Project may require Subsequent Development Approvals.
OWNER may determine that changes in the existing Development Approvals or
Development Plan are appropriate and desirable. In the event OWNER finds that
such a change is appropriate or desirable, OWNER may apply in writing for an
amendment to Development Approvals or the Development Plan to effect such
change and the application shall be processed for approval by County. CITY shall
expressly permit and authorize modifications of any proposed changes in the
existing Development Approvals or Development Plan unless the proposed
modifications:
(a) Would materially reduce the amount of open space intended for
dedication to the public, or
(b) Would materially alter the cost of providing municipal services to the
Property subsequent to annexation, or
(c) Would materially reduce the amount of property tax or other revenue
available to the CITY after annexation, or
(d) Would materially increase the density and/or intensity of development
allowed in the Project as a whole, resulting in unacceptable intersection
impacts outside of the Project that cannot be mitigated pursuant to the
CITY's Traffic Phasing Ordinance.
Any change in the Development Approvals or Development Plan made in
accordance with the procedures required by the Land Use Regulations and with
the written consent of the OWNER shall be conclusively deemed to be consistent
with this Agreement, without any further need for any amendment to this
Agreement or any of its Exhibits.
4.5 Continuation of Irvine Coast Development Agreement. CITY
acknowledges and agrees that the County Agreement entered into between
OWNER and County shall continue to govern the rights and obligations of
OWNER and County with respect to the Coastal Zone Area preceding annexation,
and following annexation to the maximum extent permitted by the cooperative
agreement and State law. If for any reason this Agreement is found to be invalid
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0
or unenforceable or OWNER's ability to proceed with the Development Plan is
impaired or delayed for any reason, then the Coastal Zone Area shall be and
remain subject to the terms and protections of the County Agreement.
4.6 Monitoring of Project. City shall, subsequent to annexation of all
or a portion of the Property, have the right, pursuant to a standard right of entry
permit issued by OWNER, to enter the Property for the limited purpose of ensuring
that development of the Property proceeds in substantial compliance with the
Development Approvals and all conditions to those approvals that are material to
the issue of water quality and aesthetics. OWNER shall designate a Project
Manager to provide CITY with access to all grading and building plans and
specifications on or before the date they are submitted to the County. CITY shall
conduct all monitoring activities in a manner that does not unduly burden
OWNER's rights to develop the Property in compliance with the Development
Approvals. Any report prepared pursuant to monitoring shall be lodged with the
City Manager and CITY shall provide OWNER with the opportunity to review and
comment on the report prior to submittal to the City Manager. The monitoring
authorized by this Subsection is not intended, and shall not be construed, to
create any formal procedure, right or process on the part of the CITY to review or
modify the Development of the Property. City shall make available to any person,
upon request, any report or document lodged with the City Manager that is
prepared by any professional retained by the CITY to conduct the monitoring
authorized by this Section.
S. FINANCING OF PUBLIC IMPROVEMENTS AFTER ANNEXATION.
5.1 Formation of Financing Districts. If so requested by OWNER,
CITY will cooperate in the formation or modification of any special assessment
district, community facilities district or alternate financing mechanism ("CFD") to
pay for the construction, acquisition, and/or maintenance and operation of public
and/or quasi -public infrastructure, lighting, landscape, or any other public facilities
required as part of the Development Approvals. CITY may, pursuant to the
cooperative agreement, allow the County to retain the authority to administer, form
or modify any new or existing assessment district. However, CITY shall have no
obligation to authorize or to cause any such CFD to issue debt or sell bonds prior
to the completion of the annexation of the Property to CITY. In the event that
such a CFD is formed and sells bonds to pay for the construction or acquisition of
public or quasi -public facilities which were provided, in whole or in part, by
OWNER, OWNER may be reimbursed from such bonds to the extent that
OWNER has spent funds or dedicated land for the establishment of such facilities
and creation of the CFD. While it is acknowledged that this Agreement cannot
require CITY or the City Council to form any such CFD or to issue and sell bonds,
CITY represents that it can do so and agrees that it shall not refuse OWNER's
request to form such a CFD and to issue and sell bonds following completion of
annexation of the Property to CITY, except for good and reasonable cause. In no
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event shall CITY have any obligation or duty to refinance, repay, reduce the
amount of, or assume any financial relationship to, any bonds or other debt issued
by any CFD prior to annexation, but City may assume such obligation pursuant to
agreement.
5.2 OWNER's Right to Construct Facilities. Subject to CITY or
County review and approval of plans and specifications, as appropriate, the
OWNER may elect, and reserves the right, to construct, or cause the construction
of, any public or quasi -public facility for which the CITY intends to collect a fee,
and to dedicate the completed facility to the CITY, in lieu of payment of the fee.
6. REVIEW FOR COMPLIANCE FOLLOWING ANNEXATION.
6.1 Periodic Review. Following annexation of all or any portion of the
Property, the City Council shall review this Agreement annually, on or before the
anniversary of the Effective Date, in order to ascertain the good faith compliance
by OWNER with the terms of the Agreement. As part of that review, OWNER
shall submit an annual monitoring review statement describing its actions in
compliance with this Agreement, in a form acceptable to the City Manager, within
30 days after written notice from the City Manager requesting that statement. The
statement shall be accompanied by an annual review and administration fee
sufficient to defray the estimated costs of review and administration of the
Agreement during the succeeding year. The amount of the annual review and
administration fee shall be set annually by resolution of the City Council.
6.2 Special Review. The City Council may order a special review of
compliance with this Agreement at any time at CITY's sole cost. OWNER shall
cooperate with the CITY in the conduct of such special reviews.
6.3 Procedure. Each party shall have, at any periodic or special review,
a reasonable opportunity to assert matters which it believes have not been
undertaken in accordance with the Agreement, to explain the basis for such
assertion, and to receive from the other party a justification of its position on such
matters. If either Party concludes, on the basis of any review, that the other Party
has not complied in good faith with the terms of the Agreement, then such Party
may issue a written "Notice of Non -Compliance" specifying the grounds and all
facts demonstrating such non-compliance. The Party receiving a Notice of
Non -Compliance shall have thirty (30) days to respond in writing to the Notice. If
the response to the Notice of Non -Compliance has not been received in the
offices of the party alleging the default within the prescribed time period, the
Notice of Non -Compliance shall be conclusively presumed to be valid. If a Notice
of Non -Compliance is contested, the Parties shall have up to sixty (60) days to
arrive at a mutually acceptable resolution of the matter(s) occasioning the Notice.
In the event that the Parties are not able to arrive at a mutually acceptable
resolution of the matter(s) by the end of the sixty (60) day period, the Party
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alleging the non-compliance may pursue the remedies provided in Section 7.
6.4 Certificate of Agreement Compliance. If, at the conclusion of a
periodic or special review, OWNER is found to be in compliance with this
Agreement, CITY shall, upon request by OWNER, issue a Certificate of
Agreement Compliance ("Certificate") to OWNER stating that after the most recent
Periodic or Special Review and based upon the information known or made
known to the City Manager and CITY Council that (1) this Agreement remains in
effect and (2) OWNER is not in default. The Certificate shall be in recordable
form, shall contain information necessary to communicate constructive record
notice of the finding of compliance, shall state whether the Certificate is issued
after a Periodic or Special Review and shall state the anticipated date of
commencement of the next Periodic Review. OWNER may record the Certificate
with the County Recorder. Additionally, OWNER may at any time request from
the CITY a Certificate stating, in addition to the foregoing, which obligations under
this Agreement have been fully satisfied with respect to the Property, or any lot or
parcel within the Property.
7. DEFAULT AND REMEDIES.
7.1 Specific Performance Available. The parties acknowledge that
money damages and remedies at law generally are inadequate and specific
performance is a particularly appropriate remedy for the enforcement of this
Agreement and should be available to OWNER and CITY because due to the
size, nature and scope of the Project, it may not be practical or possible to restore
the Property to its natural condition once implementation of this Agreement has
begun. After such implementation, OWNER and/or CITY may be foreclosed from
other choices it may have had to utilize or condition the Property or portions
hereof. OWNER and CITY have invested significant time and resources and
performed 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 terms of this
Agreement, such that it would be extremely difficult to determine the sum of
money which would adequately compensate OWNER and/or CITY for such
efforts. Except as provided in Section 7.2 below, neither OWNER nor CITY shall
be entitled to any money damages, including attorney fees, from the other party
by reason of any default under this Agreement.
7.2 Restitution of Improper Development Fees. In the event any
Development fees or taxes are imposed on Development of the Property other
than those authorized pursuant to this Agreement, OWNER shall be entitled to
recover from CITY restitution of all such improperly assessed fees or taxes,
together with interest thereon at the maximum allowable non -usurious rate from
the date such sums were paid to CITY to the date of restitution.
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7.3' Termination of Agreement.
7.3.1 Termination of Agreement for Default of OWNER. CITY in its
discretion may terminate this Agreement as to any non -annexed portions of
the Property for any failure of OWNER to perform any material duty or
obligation of OWNER hereunder or to comply in good faith with the terms of
this Agreement related to its annexation (hereinafter referred to as
"default'); provided, however, CITY may terminate this Agreement pursuant
to this Section only after following the procedure set forth in Section 6.3
and thereafter providing written notice to OWNER of the default setting
forth the nature of the default and the actions, if any, required by OWNER
to cure such default and, where the default can be cured, OWNER has
failed to take such actions and cure such default within 30 days after the
effective date of such notice or, in the event that such default cannot be
cured within such 30 day period, the failure of CITY to commence to cure
such default within such 30 day period and to diligently proceed to
complete such actions and to cure such default.
7.3.2 Termination of Agreement. for Default of CITY. OWNER in its
discretion may terminate this Agreement by written notice to CITY after the
default by CIN in the performance of a material term of this Agreement
and only after following the procedure set forth in Section 6.3 and thereafter
providing written notice by OWNER thereof to CIN and, where the default
can be cured, the failure of CITY to cure such default within 30 days after
the effective date of such notice or, in the event that such default cannot be
cured within such 30 day period, the failure of CITY to commence to cure
such default within such 30 day period and to diligently proceed to
complete such actions and to cure such default.
7.3.3 Rights and Duties Following Termination. Upon the termination. of
this Agreement, no party shall have any further right or obligation
hereunder except with respect to (i) any obligations to have been
performed prior to said termination, (ii) any default in the performance of
the provisions of this Agreement which has occurred prior to said
termination, or (iii) obligations that have vested through the annexation of
the Property, or any annexed portion thereof.
7.4 OWNER's Right To Terminate Upon Specified Events.
Notwithstanding any other provisions of this Agreement to the contrary, OWNER
retains the right to terminate this Agreement (but not the provisions of Section 3)
upon thirty (30) days written notice to CITY in the event that OWNER reasonably
determines that continued Development of the Project consistent with the
Development Plan has become economically infeasible due to changed market
conditions, increased Development costs, burdens imposed as conditions to
future discretionary approvals of the Project consistent with this Agreement, or
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similar factors.
8. THIRD PARTY LITIGATION.
CITY shall promptly notify OWNER of any claim, action or proceeding filed and
served against CITY to challenge, set aside, void, annul, limit or restrict the
approval and continued implementation and enforcement of this Agreement.
CITY and OWNER agree to cooperate in the defense of such action(s).
9. MORTGAGEE PROTECTION.
The parties agree that this Agreement shall not prevent or limit OWNER, in any
manner, at OWNER's sole discretion, from encumbering the Property or any
portion thereof or any improvement thereon by any mortgage, deed of trust or
other security device securing financing with respect to the Property. CITY
acknowledges that the lenders providing such financing may require certain
Agreement interpretations and modifications and agrees upon request, from time
to time, to meet with OWNER and representatives of such lenders to negotiate in
good faith any such request for interpretation or modification. Subject to
compliance with applicable laws, CITY will not unreasonably withhold its consent
to any such requested interpretation or modification provided such interpretation
or modification is consistent with the intent and purposes of this Agreement. Any
Mortgagee of the Property shall be entitled to the following rights and privileges:
(a) Neither entering into this Agreement nor a breach of this Agreement shall
defeat, render invalid, diminish or impair the lien of any mortgage on the
Property made in good faith and for value, unless otherwise required by
law.
(b) The Mortgagee of any mortgage or deed of trust encumbering the
Property, or any part thereof, which Mortgagee, has submitted a request
in writing to the CITY in the manner specified herein for giving notices,
shall be entitled to receive written notification from CITY of any default by
OWNER in the performance of OWNER's obligations under this
Agreement.
(c) If CITY timely receives a request from a Mortgagee requesting a copy of
any notice of default given to OWNER under the terms of this Agreement,
CITY shall provide a copy of that notice to the Mortgagee within ten (10)
days of sending the notice of default to OWNER. The mortgagee shall
have the right, but not the obligation, to cure the default during the
remaining cure period allowed such party under this Agreement.
(d) Any Mortgagee who comes into possession of the Property, or any part
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thereof, pursuant to foreclosure of the mortgage or deed of trust, or deed
in lieu of such foreclosure, shall tape the Property, or part thereof, subject
to the terms of this Agreement. Notwithstanding any other provision of
this Agreement to the contrary, no Mortgagee shall have an obligation or
duty under this Agreement to perform any of OWNER's obligations or
other affirmative covenants of OWNER hereunder, or to guarantee such
performance; except that (i) to the extent that any covenant to be
performed by OWNER is a condition precedent to the performance of a
covenant by CITY, the performance thereof shall continue to be a
condition precedent to CITY's performance hereunder, and (ii) in the
event any Mortgagee seeks to develop or use any portion of the Property
acquired by such Mortgagee by foreclosure, deed of trust, or deed in lieu
of foreclosure, such Mortgagee shall strictly comply with all of the terms,
conditions and requirements of this Agreement and the Development
Plan applicable to the Property or such part thereof so acquired by the
Mortgagee.
10. MISCELLANEOUS PROVISIONS.
10.1 Term of Agreement. Following completion of the annexation of the
Property, or any portion thereof, to the CITY within the preceding time periods,
this Agreement shall continue in full force and effect with respect to such annexed
land for a period of fifteen (15) years from the effective date of that annexation.
10.2 Recordation of Agreement. This Agreement shall be recorded with
the County Recorder by the City Clerk upon annexation of the Property to CITY
within the period required by Section 65868.5 of the Government Code. Similarly,
amendments approved by the parties, and any cancellation, shall also be
recorded.
10.3 Entire Agreement. This Agreement sets forth and contains the
entire understanding and agreement of the parties, and there are no oral or written
representations, understandings or ancillary covenants, undertakings or
agreements that are not contained or expressly referred to herein. No testimony
or evidence of any such representations, understandings or covenants shall be
admissible in any proceeding of any kind or nature to interpret or determine the
terms or conditions of this Agreement.
10.4 Severability. If any term, provision, covenant or condition of this
Agreement shall be determined invalid, void or unenforceable, then this
Agreement shall terminate in its entirety, unless the parties otherwise agree in
writing, which agreement shall not be unreasonably withheld.
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10.5 Interpretation and Governing Law. This Agreement and any
dispute arising hereunder shall be govemed and interpreted in accordance with
the laws of the State of California. This Agreement shall be construed as a whole
according to its fair language and common meaning to achieve the objectives and
purposes of the parties hereto, and the rule of construction to the effect that
ambiguities are to be resolved against the drafting party or in favor of CITY shall
not be employed in interpreting this Agreement, all parties having been
represented by counsel in the negotiation and preparation hereof.
10.6 Section Headings. All section headings and subheadings are
inserted for convenience only and shall not affect any construction or
interpretation of this Agreement.
10.7 Singular and Plural. As used herein, the singular of any word
includes the plural.
10.8 Time of Essence. Time is of the essence in the performance of the
provisions of this Agreement as to which time is an element.
10.9 Waiver. Failure of a party to insist upon the strict performance of
any of the provisions of this Agreement by the other party, or the failure by a party
to exercise its rights upon the default of the other party, shall not constitute a
waiver of such party's right to insist and demand strict compliance by the other
party with the terms of this Agreement thereafter.
10.10 Third Party Beneficiaries. This Agreement is made and entered
into for the sole protection and benefit for the parties and their successors and
assigns. No other person shall have any right of action based upon any provision
of this Agreement; provided, however, that the fee owners of any non-residential
parcels in the annexation area may elect to be covered by this Agreement.
10.11 Force Majeure. 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 by earthquakes, other Acts of God, fires, wars, riots or
similar hostilities, strikes and other labor difficulties beyond the party's control
(including the party's employment force), government regulations, court actions
(such as restraining orders or injunctions), or other causes beyond the party's
control. If any such events shall occur, the term of this Agreement and the time
for performance shall be extended for the duration of each such event, provided
that the term of this Agreement shall not be extended under any circumstances for
more than five (5) years.
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10.12 Mutual Covenants. The covenants contained herein are mutual
covenants and also constitute conditions to the concurrent or subsequent
performance by the party benefited thereby of the covenants to be performed
hereunder by such benefited party.
10.13 Counterparts. This Agreement may be executed by the parties in
counterparts, which counterparts shall be construed together and have the same
effect as if all of the parties had executed the same instrument.
10.14 Jurisdiction and Venue. Any action at law or in equity arising
under this Agreement or brought by any party hereto for the purpose of enforcing,
construing or determining the validity of any provision of this Agreement shall be
filed and tried in the Superior Court of the County of Orange, State of California,
and the parties hereto waive all provisions of law providing for the fling, removal
or change of venue to any other court.
10.15 Project as a Private Undertaking. It is specifically understood and
agreed by and between the parties hereto that the Development of the Project is a
private Development, that neither party is acting as the agent of the other in any
respect hereunder, and that each party is an independent contracting entity with
respect to the terms, covenants and conditions contained in this Agreement. No
partnership, joint venture or other association of any kind is formed by this
Agreement. The only relationship between CITY and OWNER is that of a
government entity regulating the Development of private property and the owner
of such property.
10.16 Further Actions and Instruments. Each of the parties shall
cooperate with and provide reasonable assistance to the other to the extent
contemplated hereunder.in the performance of all obligations under this
Agreement and the satisfaction of the conditions.of this Agreement. Upon the
request of either party at any time, the other party shall promptly execute, with
acknowledgment or affidavit if reasonably required, and file or record such
required instruments and writings and take any actions as may be reasonably
necessary under the terms of this Agreement to carry out the intent and to fulfill
the provisions of this Agreement or to evidence or consummate the transactions
contemplated by this Agreement. Subject to Section 3 above, OWNER will
cooperate with the CITY in the processing of the annexation of the Project through
the Local Agency Formation Commission including advocating the application of
the existing AB 8 Master Property Tax Transfer Agreement. OWNER
acknowledges the importance of maintaining the fiscal benefits of the Project
assuming that the current method of allocating sales tax revenues (i.e., point of
sale) is utilized. OWNER will consult with the CITY regarding legislative proposals
to adjust this procedure with the goal of supporting CITY efforts to maintain the
fiscal benefits of the Project through the legislative process.
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10.17 Eminent Domain. No provision of this Agreement shall be
construed to limit or restrict the exercise by CITY of its power of eminent domain.
10.18 Amendments in Writing/Cooperation. This Agreement may be
amended only by written consent of both parties specifically approving the
amendment and in accordance with the Government Code provisions for the
amendment of Development Agreements. The parties shall cooperate in good
faith with respect to any amendment proposed in order to clarify the intent and
application of this Agreement, and shall treat any such proposal on its own merits,
and not as a basis for the introduction of unrelated. matters.
10.19 Authority to Execute. The person or persons executing this
Agreement on behalf of OWNER warrants and represents that hetthey have the
authority to execute this Agreement on behalf of his/their corporation, partnership
or business entity and warrants and represents that he/they has/have the authority
to bind OWNER to the perfon-nance of its obligations hereunder.
10.20 Notice. All notices, demands, requests or approvals to be given
under this Agreement shall be given in writing and shall be deemed served when
delivered personally or on the third business day after deposit in the United States
mail, postage prepaid, first class mail, addressed as follows:
All notices, demands, requests or approvals to CITY shall be addressed to
CITY at:
City of Newport Beach
City Manager's Office
3300 Newport Boulevard
PO Box 1768
Newport Beach, California 92658-8915
All notices, demands, requests or approvals to OWNER shall be addressed
to OWNER at:
Vice President of Entitlements
The Irvine Company
550 Newport Center Drive
Newport Beach, California 92660
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first set forth above.
Page 22 of 23
CITY: CITY OF NEWPORT BEACH
By
TOD RIDGEW Mayor Pro em
ATTEST:
By
LaVonne Harkless, City Clerk
APPROV D AS TO FORM:
By
obert Burnham, City Attorney
OWNER: THE IRVINE CO PANY
By
Title Joseph D. Davis, Executive vice President
By
Title Tim Paone, Vice President Entitlement
OWNER: IRVINE COMMUNITY
DEVELOPMENT COMPANY
By
Title �l D. Davis, President and CEO
Titl
Lary
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0 0
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
ss.�,r, p
County of VLJ ".Y`-�
Q
On ,1.. >
� � o � �+ 1 before me,
Date Name %& Title of cer (e.g., "J a Doe, Not Pu
personally appeared � ZXNe, *� C
Na ) of Signers)
personally known to me
❑ proved to me on the basis of satisfactory
evidence
CAWFOM to be the perso s) whose names is/re
11I subscribed to the within instr ent and
- acknowledged to me that he/s hey xecuted
Cow 4P lF the sam in his/he het authori
W� t�t��ffi capacity ie , and that y his/her h '
signature s) n the instrument the perso (s
the entity upon behalf of which the person
acted, executed the instrument.
ESS my hand and fficial seal.
Place Notary Seal Above Sig of No ry Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document ,n- ��1�
Tdle or Type of Document:'�iC0. �^ 1b Jam` o -
Document Date: f - Number of Pages:
Signer(s) Other Than Named Above: 0 ),e4 ke., A- Tt j" \Pa,�a Ae
Capacity(ies) Claimed by Signer
Signer's Name:
1110HUM97- =-
• Individual Top of thumb here
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Attomey in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
01H9 Natiwal NoWy Assoclatlon • g356 Do Soon Ave., P.O. Box 2402 • ChWwordr, CA 91313.2402 • x .natlonalnelary.arg Pmd. Na 5907 Reorder. Call TW -Free 1.8W -B76.6827
24-50
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State of California)
)SS.
County of Orange )
On _ November 8, 2001 before me, W. S. Settini , Notary Public, personally
appeared Joseph D. Davis and Daniel C. Hedigan , 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 signatures
on the instrument the persons, or the entity upon behalf of which the persons acted,
executed the instrument.
my hand and official seal.
W. S. aEMM
-cam
owrve CCU*
24-51
State of California)
) ss.
County of Orange )
On _ November S, 2001 before me, W. S. Bettini , Notary Public, personally
appeared Joseph D. Davis and Tim Paone , 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 signatures on
the instrument the persons, or the entity upon behalf of which the persons acted, executed
the instrument.
WITNESS my hand and official seal.
W. s.isT 14
Commwon# 12lM
Notary Mjbiic - 00od-
WComm Z05
24-52
0
EXHIBIT `A'
NEWPORT COAST ANNEXATION NO-CAOI-06
TO THE CITY OF NEWPORT BEACH
BLOCKS: 5151, 5152, 5251
5252, 5253, 5351
5352
MODULES: VARIOUS•
BEING' THOSE PORTIONS OF BLOCKS 91, 95-98, 128-134, 1.61-164 OF IRVINE'S
SUBDIVISION AS SHOWN ON 'A MAP THEREOF FILED -IN BOOK 1, PAGE 88 OF
MISCELLANEOUS RECORD MAPS AND PARCEL 2 AND A PORTION OF PARCEL 1 PER
CORPORATION GRANT DEED BOOK 13439,, PAGE 94-132', RECORDED DECEMBER 19,
1979, IN THE OFFICE OF THE COUNTY RECORDER OF -THE COUNTY OF ORANGE, STATE
OF CALIFORNIA, DESCRIBED AS FOLLOWS:
BEGINNING AT AN ANGLE POINT IN THE EXISTING .CITY OF NEWPORT BEACH BOUNDARY
AS ESTABLISHED BY REORGANIZATION- NO. R097-35, "-BONITA CAITZON- ANNEXATION TO
THE CITY OF NEWPORT BEACH AND DETACHMENT OF. THE- SAME TERRITORY FROM THE
CITY OF IRVINE", SAID ANGLE POINT BEING THE SOUTHEASTERLY TERKINUS OF THAT
CERTAIN COURSE DESCRIBED AS "SOUTH 1.1058'31" EAST 11.29 FEET" IN SAID
REORGANIZATION NO. R097-35, SAID POINT ALSO BEING. DISTANT NORTH '26342'33"
EAST 3071.87 FEET FROM ORANGE COUNTY SURVEYOR'S HORIZONTAL CONTROL. STATION
GPS NO. '5247, HAVING A COORDINATE- V__LUE (U.S. SURVEY FOOT) 'OF NORTH
2173287.386 AND EAST 6074018.52.1, BASED UPON THE CALIFORNIA COORDINA'T'E
SYSTEM (CCS83) , ZONE VI. 1983 NAD (1991.35 EPOCH O.C.S. G?5 ADJUSTMENT) AS
SAID GPS. POINT IS SHOWN ON TRACT MAP No 15945 RECORDED IN BOOK -805,
PAGES 18-25 INCLUSIVE OF MISCELLANEOUS MAPS IN THE, OFFICE 0Y THE COUNTY
RECORDER OF SAID COUNTY, BEING COMMON 0 "HARBOR VIEWS .--:----LLS -- PHASE 3"
ANNEXATION TO THE CITY OF NEWPORT BEACH;
THENCE CONTINUING ALONG THE EXISTING CI'_Y BOUNDARY OF THE CITY OF NEWPORT
BEACH PER `HARBOR VIEW HILLS -PHASE 3" ANNEXATION, THE "r_:%-1:�LBOR VIEW HILLS
SECTOR 4" ANNEXATION, THE "HARBOR RIDGE ANNEXATION NO. 89", THE "HARBOR
RIDGE ANNEXATION NO. 82, THE "HARBOR V=EW HILLS -PHASE 3" ANNEXATION, THE
"HARBOR VIEW HILLS -PHASE 4" ANNEXATION, THE "k NEXATION NO. 57 (CENTERVIEW
ANNEXATION)", THE "HARBOR VIEW" ANNEXATION, ANNEXATION NO. 8, CITY
BOUNDARY 1928 (COURT CASE NO. 23686) INCORPORATED SEPTEMBER 1, 1906; THE
"CORONA HIGHLANDS" ANNEXATION, THE "SEAWARD 17" ANNEXAT=ON, THE "CAMEO
HIGHLANDS" ANNEXATION, THE "ANNEXATION NO. 84", THE "C.;MEO HIGHLANDS"
ANNEXATION, THE "ANNEXATION NO. 64", THE "CL%fEO CLIFFS" ANNEXATION" THE
"SHORE CLIFFS -. CAMEO SHORES TIDELANDS ANNEXATION" THROUGH THEIR VARIOUS
COURSES IN A GENERAL SOUTHEASTERLY, SOUTHWESTERLY, SOUTHEASTERLY,
SOUTHERLY, WESTERLY, SOUTHERLY, EASTERLY, SOUTHERLY, WESTERLY, SOUTHERLY,
LEGt1331-LCL3(M.DOC (06/19/01) 58 PAGE 1
24-53
0
=HIBIT 'A'
0
NEWPORT COAST ANNEXATION. NO.CA01-06
TO THE CITY OF NEWPORT BEACH
SOUTHEASTERLY,
SOUTHERLY,
SOUTHWESTERLY,
WESTERLY, NORTHWES'T'ERLY,
SOUTHWESTERLY,
WESTERLY,
SOUTHWESTERLY,
SOUTHERLY, . NORTHWESTERLY,
SOUTHWESTERLY;
WESTERLY,
SOUTHEASTERLY,
NORTHEASTERLY, SOUT-ERLY,
SOUTHWESTERLY,
NORTHWESTERLY AND
SOUTHWESTERLY
DIRECTION TO AN ANGLE POINT
ON THE BOUNDARY OF THE CITY
OF NEWPORT. BEACH
AS ESTABLISHED BY `SHORE
CLIFFS - CAMEO
SHORE TIDELANDS
ANNEXATION";
THENCE LEAVING SAID CITY BOUNDARY IN A DIRECT LINE NORTHEASTERLY 3 MILES
MORE OR LESS TO A POINT ON THE MEAN HIGH TIDE OF THE PACIFIC OCEAN; SAID
POINT BEARING SOUTH 37039'50" SHYEST 600 FEET MORE OR LESS FROM THE NORTHWEST
CORNER OF PARCEL 3 OF "PARK PROPERTY" AS - DESCRIBED IN CORPORATION GRANT
DEED TO THE STATE OF CALIFORNIA'ON FILE DECEIVER 19, 1979, IN BOOK 13439,
PAGE 94-132 IN THE OFFICE OF THE, COUNTY' RECORDER, SAID POINT BEI3+iG THE
SOUTHWESTERLY PROLONGATION OF THAT _CERTAIN .COURSE DESCRIBED AS "NORTH
37°39`50" EAST 104.98 FEET" IN SAID DEED IN THE WESTERLY BOUNDARY OF PARCEL
3 OF SAID "PARK PROPERTY";
THENCE ALONG SAID SOUTHWESTERLY PROLONGATION -NORTH 37039150" EAST 600 FEET
MORE OR LESS TO THE SOUTHWESTERLY TERMINUS OF THAT CERTAIN COURSE
DESCRIBED'� AS "NORTH 37039150" EAST 104.98 FEET" IN THE NORTHWESTERLY
BOUNDARY OF SAID PARCEL. 3, SAID TERMINUS ALSO BEING ON THE NORTHEASTERLY
RIGHT OF WAY - LINE OF THE PACIFIC COAST HIGHWAY BEING A H?'G 79AY OF VARIABLE
WIDTH, AND FURTHER DESCRIBED IN BOOK 48 -/,'PAGE 1. OF DEEDS 7-14 THE OFF ; C E OF
THE COUNTY RECORDER;
THENCE LEAVING SAID NORTHEASTERLY RIGHT OF ',,.-AY LINE ALONG THE
NORTHWESTERLY BOUNDARY LINE OF PARCEL 3 OF SAID "PARC PROPERTY".;
THENCE .NORTH 37039'50" EAST 104.96 FEET TO THE BFGINNI-NG OF A TANGENT
950.00 FOOT RADIUS CURVE CONCAVE TO THE SOUTHEAST;
THENCE ALONG THE ARC OF SAID CURVE; NORTHEASTERLY, 219.65 FEET THROUGH A
CENTRAL ANGLE OF 13014'50";
THENCE NORTH 50054140" EAST 1645.45 FEET TO THE BEGINNING OF A TANGENT
1300.00 FOOT RADIUS CURVE CONCAVE TO THE WEST.-
THENCE
EST;
THENCE ALONG THE ARC OF SAID CURVE NORTHEASTERLY, 1590.29 FEET THROUGH A
CENTRAL ANGLE OF 70005'24";
UEQ\1131-LGL1(A WC (66f19fGll SE PAGE 2
24-54
0
B IBIT `A'
NEWPORT COAST ANNEXATION NO.CA01-06
TO THE CITY OF NEWPORT BEACH
THENCE NORTH 19010'44" WEST 387.88 FEET;
THENCE SOUTH 84642'47" EAST 288.52 FEET;
THENCE NORTH 58039'02" EAST 1018.72 FEET;
THENCE NORTH 74008'04" EAST 197.52 FEET;
THENCE NORTH 60027'40" EAST 137.93 FEET;
THENCE SOUTH 68054'28" EAST 150.05 FEET;
THENCE NORTH 66048'05" EAST 167.55 FEET;
THENCE NORTH 04038'08" EAST 74.24 FEET;
THENCE SOUTH 87003'52" EAST 84.20 FEET;
THENCE NORTH 23021'06" WEST 232.34 FEET;
THENCE NORTH 51008'19" EAST 310.79 FEET;
THENCE NORTH 31050'33" EAST 223.66 FEET;
THENCE NORTH 11055'46" WEST 290.27 FEET;
THENCE NORTH 30002'00" EAST 147.85 FEET;
THENCE NORTH 35052'56" WEST 232.03 FEET;
THENCE NORTH 10.031'40" EAST 229.87 FEET;
THENCE NORTH 46028'08" EAST 55.17 FEET;
THENCE NORTH 671153'26" EAST 138.16 FEET;
THENCE NORTH 38031'49" EAST 138.06 FEET
THENCE NORTH 24035'24" EAST 129.77 FEET;
THENCE NORTH 03052'43" EAST 118.27 FEET;
LEG\1331-LCLS IR{ .DOC (06/19/Dl) SE PAGE 3
24-55
EXHIBIT `A'
NEWPORT COAST ANNEXATION NO.CA,01-06
TO THE CITY OF NEWPORT BEACH
THENCE NORTH 19050'41" EAST 141.40 FEET;
THENCE NORTH 49001'42" EAST 150.97 FEET;
THENCE NORTH 73052'21" EAST 172.80 FEET;
THENCE NORTH 60049'09" EAST 176.38 FEET;
THENCE NORTH 1104$'47" EAST 312.62 FEET;
THENCE NORTH 03021'59" WEST 272.47 FEET TO THE SOUTHEASTERLY TERMINUS OF
THAT CERTAIN COURSE DESCRIBED AS "SOUTH 28044'47" EAST 328.52 FEET" IN THE
EXISTING WESTERLY BOUNDARY OF "PARK PROPERTY" AS DESCRIBED ,IN CORPORATION
GRANT DEED TO THE STATE OF CALIFORNIA RECORDED NOVEMBER 17, .1981 ON FILE
IN BOOK 14292, PAGE 953-965 IN THE OFFICE OF THE COUNTY RECORDER;
THENCE ALONG SAID WESTERLY BOUNDARY NORTH 28044'47" WEST 328.52 FEET;
THENCE NORTH 1102.1'29" EAST 467.15 FEET;
THENCE NORTH .08021'57" WEST 68.73 FEET;
THENCE NORTH 29047'31" EAST 301.90 FEET.;
THENCE NORTH 80008'45" EAST 383.72 FEET;
THENCE NORTH 3001.8'40" EAST 301.17 FEET;
THENCE NORTH 79056'51" EAST 446.86 FEET;
THENCE NORTH 49046'51" EAST 390.27 FEET;
THENCE NORTH 75036'00" EAST 1.52.80 FEET;
THENCE NORTH 88017'55" EAST 404.18 FEET;
THENCE NORTH 02027'46" EAST 186.17 FEET;
THENCE NORTH 25047'27" EAST 330.97 FEET;
THENCE NORTH 89°15'21" EAST 308.03 FEET;
LEC\1331-LCU IRI•DOC COG/L8r01) se PAGE 4
24-56
0
EXHIBIT `A'
0
NEWPORT COAST ANNEXATION NO.CAOI-06
TO THE CITY OF NEWPORT BEACH
THENCE NORTH 11034'59" EAST 2549.93 FEET;
THENCE NORTH 11006'16" WEST 1038.44 FEET;
THENCE NORTH 10047104" EAST 235.15 FEET;
THENCE NORTH 35006'10" EAST 551.26 FEET;
THENCE NORTH 16038'20" EAST 181.60 FEET;
THENCE NORTH 18054'59" WEST 188.16 FEET;
THENCE NORTH 16025'40" EAST 424.32 FEET;
THENCE NORTH 29010'03" EAST 196.98 FEET;
THENCE NORTH 14024'00" EAST 152.80 FEET;
THENCE NORTH 52016'30" EAST 67.01 FEET;
THENCE NORTH 80017'00" EAST 148.1.2 FEET;
THENCE NORTH 37027'15" EAST 274.61 FEET;
THENCE SOUTH 33000'20" EAST 789.39 FEET;
^HENCE NORTH 70038136" EAST 784.31 FEET;
THENCE SOUTH 02059'35" WEST 306.42 FEET;
THENCE SOUTH 22006'00" EAST 356.1.7 FEET;
THENCE SOUTH 35018'58" EAST 2345.66 FEET TO WESTERLY TERMINUS OF THAT
CERTAIN COURSE DESCRIBED AS "SOUTH 44031'21" EAST 678.84 ;FEET" IN THE
EXISTING NORTHEASTERLY BOUNDARY OF SAID BOOK 13439, PAGE 94-132;
THENCE LEAVING THE BOUNDARY OF SAID BOOK 14292, PAGE 953-965 PIVD ALONG THE
NORTHEASTERLY BOUNDARY OF SAID BOOK 13439, PAGE 94-132;
THENCE SOUTH 44031'21" EAST 678.84 FEET;
THENCE SOUTH 71026'28" EAST 584.39 FEET;
UG\1131-LGL1[Ry.DOC 166/191611 56 PAGE 5
24-57
EXHIBIT 'A'
NEWPORT COAST ANNEXATION NO_CA01-06
TO THE CITY OF NEWPORT BEACH
THENCE SOUTH 85006'26" EAST 515.88 FEET;
THENCE SOUTH 74032'30" EAST 420.20 FEET;
THENCE SOUTH 66047'38" EAST 548.66 FEET TO A POINT ON THE SOUTHEASTERLY
LINE OF BLOCK 161 OF SAID IRVINE'S SUBDIVISION;
THENCE LEAVING THE NORTHEASTERLY BOUNDARY OF SAID BOOK 13439, PAGE 94-132
AND ALONG THE SOUTHEASTERLY LINE OF SAID BLOCK 161 NORTH 40033'59 EAST
188.12 FEET TO A POINT ON THAT CERTAIN COURSE BEARING "NORTH 34°56'51" WEST
457.86 FEET" IN THE EXISTING BOUNDARY OF "THE PROPERTY" DESCRIBED IN GRANT
DEED TO THE CITY OF LAGUNA BEACH RECORDED JUNE 27, 1991 AS DOCUMENT NO. 91-
330557 IN THE OFFICE OF THE COUNTY RECORDER;
THENCE ALONG SAID COURSE AND THE SOUTHWESTERLY BOUNDARY OF "THE PROPERTY"
OF SAID GRANT DEED NORTH 34055'56" WEST 53.88 FEET;
THENCE NORTH 68021'18" WEST 560.20 FEET;
THENCE NORTH 60007'54" WEST "785.39 FEET;
THENCE SOUTH 83028'.56" WEST 326.82 FEET;
THENCE NORTH 66044'01" WEST 658.40 FEET;
THENCE NORTH 39006'41" WEST 465.65 FEET;
THENCE NORTH 54032'38" VEST 526.14 FEET;
THENCE NORTH 34026'23" WEST 410.92 FEET;
THENCE NORTH 12044'59" EAST 337.73 FEET;
THENCE NORTH 24022'24" WEST 331.27 FEET;
THENCE NORTH 38033`34" WEST 489.32 FEET;
THENCE NORTH 22014'13" WEST 315.36 FEET;
THENCE NORTH 41041'22" WEST 538.97 FEET;
THENCE NORTH 46030'42" WEST 848.19 FEET;
LEC\1]31-WL1[Rj.Doc (06/101011 s8 PAGE 6
24-58
=IB IT 'A'
NEWPORT COAST ANNEXATION NO.CA41-06
TO THE CITY OF NE"ORT BEACH
THENCE NORTH 71006'534 WEST 244.14 FEET;
THENCE SOUTH 89008104" WEST 252.22 FEET TO THE SOUTHWESTERLY PROLONGATION
OF THE COURSE DESCRIBED AS "NORTH 40000'004 EAST 660.00 FEET" IN ANNEXATION
NO. 1 (FRASIER ANNEXATION) TO THE CITY OF IRVINE;
THENCE ALONG SAID PROLONGATION NORTH 40°33'37" EAST 221.97 FEET TO A POINT
IN THE SOUTHEASTERLY BOUNDARY OF THE CITY OF IRVINE AS ESTABLISHED BY
"REORGANIZATION NO. R097-04" DISTANT THEREON SOUTH 64016`17"' EAST 1340.14
FEET FROM THE NORTHWESTERLY TERMINUS OF THAT CERTAIN COURSE DESCRIBED AS
,%-WORTH 641116'17" WEST 4468.85 FEET" IN THE CENTERLINE OF TR -73 (SAN
JOAQUIN HILLS TRANSPORTATION CORRIDOR) AS DESCRIBED IN PARCEL 1 OF SAID
REORGANIZATION NO. R097-04;
THENCE ALONG SAID EXISTING CITY BOUNDARY AND THE CENTERLINE OF TR -73 PER
SAID "REORGANIZATION NO. R097-04" THROUGH THEIR VARIOUS COURSES IN A
GENERAL NORTHWESTERLY DIRECTION TO' AN ANGLE POINT _N THE EXISTING CITY OF
NEWPORT BEACH BOUNDARY AS ESTABLISHED. BY 'REORGANIZATION NO . R097-35-,
SAID POINT BEING THE SOUTHEASTERLY TERMINUS OF T'-=kT COURSE DESCRIBED AS
"NORTH 69" 24'23" WEST 2092.48 FEET";
'THENCE ALONG SAID EXISTING CITY BOUNDARY PER SA27 "REORGANIZATION NO.
R097-35" THROUGH ITS VARIOUS COURSES IN A GENERAL NORT?��4TESTERLY,
SOUTHERLY, SOUTHEASTERLY 'AND NORTHWESTERLY DIRECTICN TO I._E TRUE POINT OF
BEGINNING .
CONTAINS 7,799 ACRES, MORE OR LESS.
ATTACHED HERETO AND MADE A PART HEREOF, IS A MAP DESIGNATED AS EXHIBIT
TO OBTAIN THE GRID DISTANCE AT GFS PT. NO, 6247, MULTIPLY THE GROUND
DISTANCE BY 0.99996664.
THIS LEGAL DESCRIPTION' WAS PREPARED BY ME, OR UNDER MY SUPERVISION FROM
RECi
I O N ONLY. NO FIELD SURVEY HAS SEEN CONDUC 0 VERSFY ANY
REC0 N.
Ls- i — _Age""
REX S, PLUMMER, PLS 6641 DATE
EXPIRATION DATE 12/31/03
Na 6641
=GN 1]31-L6L1(R(.DOC (061191011 ss PAGE 7
24-59
EXHIBIT `A'
NEWPORT COAST ANNEXATION NO.CA01-06
TO THE CITY OF NEWPORT BEACH
THIS PROPOSAL DOES MEET THE APPROVAL OF
THE ORANGE COUNTY SURVEYOR'S OFFICE.
DATED THws Z- 1� DAY OF
rK.rcz., , `v �sr+ i sWnv.0
LS 08
EX TION DATE 09/30/01
LEG\1331-WLlfP0,DCC (06119141$ SE
! 2001.
PAGE S
�r Np.44�
24-60
BLOCKS. 5151, 5152, 5251. 5152
5253. S751. 5J52
MODULE.- VARIOUS
T � BONITA 1`
CANYON ROAD
f
NEW FORD /
a ROAD I
rulFXOI.VKv
ANNEXATION! NO. 1
-(FRASIER ANNEXATION)
CITY OF IRVINE`
CE SAN bOAQUIN HILLS TRtNSPORTATION
I CORRIDOR
:1
CITY Of
fgEWPoHT
BEACH r� X11 l
111� i I
�I� mld
I.
I.
f HIGHWAYCOAST
Rw
0 cnr
INDEX MAP
NOT TO 5C1[£
0INDICA7E5 SHEET NUMBER
LEGEND SHEET I OF s
` "• " -" EX75T7NC CITY OF NERYORT BEACH BOUNDARY PER
REORCANIZA77ON NO. 97-J5.
'L-=-EXISTlNC CITY OF NEWPORT BEACH BOUNDARY PER
_ VARIOUS ANNEXA 17ONS.
FXISAVC CITY OF 04NE 2OWDARY PER REORCANIZA17ON
N0. 97-D4.
�EXISIING CRYSTAL COVE STATE PARK BOUNDARY.
bL BOUNDARY OF DEED GRA14TEO TO INE CITY OF LACUNA
BEACH RECORDED XNE 27, 1991
f (D INDICA TU SHEET NUMBER
' f P.OB. TNOICATFS POINT OF BEGINNINC
I n INWCATES UORIZONTAL CONTRfX
I�
I THIS AD.AISTMENr CONTAINS 7,799 ACRES MORE OR LESS
i
PREPARED BY ME OR UNDER MY DIRECT SUPERVISION
FROM RE 1 ARON ONLY. NO FIELD SURVEY HAS
efEN C C IFY ANY RECORD INFORMAAON.
((EX ORYBTALREX S. PLUMUER La 6641STATE RECTSTRAVON EX9RES TZ/37/03PARK
THIS PROPOSAL DOES MEET THF APPROVAL OF TNF
ORANGE COUNTY UR4EYORS OmcF_I OA IS� DAY T9� j_ 2001
N CANAS, COUNTY SURWYOR, L.S. 4408
LICEN5E E"ES 9/30/!)7
AS DOC NO. 9T-JJ0557
STAI70N AS NOJEO
FTRES
NO. 664 r
ExHI BI T „B !1 Pivject Design Cons -td tants
( YE6PORT COAST' ANNE)(A770N PL NWxu dl PMEwmc SURVETIMC
CAOI-06 TO THE CITY OF NEWORT BEACI Tor srsuers ,f o. San f pu, c- szrar
/ 619 •z35•B{7f 71 FA; Z9! 090
24-61
f
I�
i
I
1
rulFXOI.VKv
ANNEXATION! NO. 1
-(FRASIER ANNEXATION)
CITY OF IRVINE`
CE SAN bOAQUIN HILLS TRtNSPORTATION
I CORRIDOR
:1
CITY Of
fgEWPoHT
BEACH r� X11 l
111� i I
�I� mld
I.
I.
f HIGHWAYCOAST
Rw
0 cnr
INDEX MAP
NOT TO 5C1[£
0INDICA7E5 SHEET NUMBER
LEGEND SHEET I OF s
` "• " -" EX75T7NC CITY OF NERYORT BEACH BOUNDARY PER
REORCANIZA77ON NO. 97-J5.
'L-=-EXISTlNC CITY OF NEWPORT BEACH BOUNDARY PER
_ VARIOUS ANNEXA 17ONS.
FXISAVC CITY OF 04NE 2OWDARY PER REORCANIZA17ON
N0. 97-D4.
�EXISIING CRYSTAL COVE STATE PARK BOUNDARY.
bL BOUNDARY OF DEED GRA14TEO TO INE CITY OF LACUNA
BEACH RECORDED XNE 27, 1991
f (D INDICA TU SHEET NUMBER
' f P.OB. TNOICATFS POINT OF BEGINNINC
I n INWCATES UORIZONTAL CONTRfX
I�
I THIS AD.AISTMENr CONTAINS 7,799 ACRES MORE OR LESS
i
PREPARED BY ME OR UNDER MY DIRECT SUPERVISION
FROM RE 1 ARON ONLY. NO FIELD SURVEY HAS
efEN C C IFY ANY RECORD INFORMAAON.
((EX ORYBTALREX S. PLUMUER La 6641STATE RECTSTRAVON EX9RES TZ/37/03PARK
THIS PROPOSAL DOES MEET THF APPROVAL OF TNF
ORANGE COUNTY UR4EYORS OmcF_I OA IS� DAY T9� j_ 2001
N CANAS, COUNTY SURWYOR, L.S. 4408
LICEN5E E"ES 9/30/!)7
AS DOC NO. 9T-JJ0557
STAI70N AS NOJEO
FTRES
NO. 664 r
ExHI BI T „B !1 Pivject Design Cons -td tants
( YE6PORT COAST' ANNE)(A770N PL NWxu dl PMEwmc SURVETIMC
CAOI-06 TO THE CITY OF NEWORT BEACI Tor srsuers ,f o. San f pu, c- szrar
/ 619 •z35•B{7f 71 FA; Z9! 090
24-61
0 EXHIBIT 6 .
EXHIBIT C - PLANNING AND ENVIRONMENTAL HISTORY
Date
Document
Action/Approval
Relationship to Proposed Project ..
1976-79
Irvine Coastal Community
Approved by the
Established a maximum residential build out for Irvine -Coast of
General Plan Amendment
County; denied by the
12,000 DUs. Acted as County General Plan and proposed as first
Final E1R No. 134.
California Coastal
coastal LCP to Coastal Commission.
Commission (as LCP
document)
19821
Imine Coast Local Coastal
Approved by the
Established as first LCP for Irvine Coast. Maximum residential build
1983
Program 80-41Land Use
County; certified by
out of 2,000 units, provided other land uses, development policies,
Element Amendment 804-
the California Coastal
and regulations. Determined Coastal Act Consistency. For PA 3
Supplemental EIR No. 237;
Commission
(similar area to proposed project area) established maximum of 85
LCP Implementation Action
SF DUs. PA14: 250 overnight accommodations and 25,000 square
Plan.
feet of related commercial uses.
19871
First Amendment to the
Approved by the
Established a maximum residential build out of 2,600 units, land
1988
Irvine Coast Local Coastal '
County, and certified
uses, intensity of use, development policies, and regulations.
Program Land Use Plan
by the California
Determined Coastal Act consistency. Similar land use designations
and Implementing
Coastal Commission
and build out within proposed project area as was approved in the
Ordinance for the Irvine
1982 LCP.
Coast Planning.Unit.
19881
FEIR No. 486, Irvine Coast
Certified by the
Serves as an implementing mechanism for the Irvine Coast LCP.
1996
Planned Community •
County of Orange
Addressed impacts based on build out of project pursuant to the
Development Agreement.
1988 LCP and Development !Agreement. ti
Addendum for
Development Agreement
First Amendment
1988
FEIR No. 485, Irvine Coast
Certified by the
Addressed environmental impact of backbone infrastructure,
Planned Community
County of Orange
roadways, and subdivision of 2,813 acres, evaluating 23 of 44
Master Coastal
Master CDP land use planning areas. EIR analysis included PAs
Development Permit MCDP
3A, 313 and 14; addressed construction of Sand Canyon Avenue
88-11P and Vesting `A"
through PAs 3A and 3B; partial widening of PCH along The Irvine
Tentative Tract Map No.
Company property; construction of backbone'drainage system as
13337.
recommended in the RMDRMP; construction and/or relocation of
master utilities and construction of backbone
domestic water storage and distribution System and backbone
wastewater collection system. FEIR 485 did not address specific
development proposals for residential, tourist commercial, or golf
course development. Subsequent Elft, in conjunction.with.
subdivision W maps and project Coastal Development Permits,'
have addressed area specific proposals.
1989
Final EIR No. 511, Irvine
Certified by the
Evaluated construction level impacts for 11 individual projects
Coast Planned Community,
County of Orange
.(residential and golf course uses) in addition to the realignment of
Phase 1.
Lower Loop Road (now named Pelican Hill Road). Included PAs
3A, 313, 14. Proposed development in PAs 3A,,313, and 14, as .
addressed in FEIR 511, was low density (estate/custom lot)
residential units. FEIR 511 addressed the First Amendment to the
MCDP and the Second revised Vesting "A" Tentative Tract map
13337. As part of the First Amendment to the MCDP, planning area
boundaries, including those of 3A, 313, and 14, were adjusted from
boundaries established in the original MCDP and LCP documents;
and development densities in PAs 3A and 313 were changed from 0-
2 du/ac as stated in the certified LCP, to 0.3 duiac in the MCDP First
Amendment.
1989
Refined Master Drainage
. Approved by the
Recommended backbone drainage improvement system for the
and Runoff Management
County of Orange
NCPC. Drainage and sedimentation control measures are included
Plan
as part of each subsequent development project within the ,
MCDPINCPC. The RMDRMP addressed facilities to mitigate
increased peak runoff volumes and rates due to planned
development. The RMDRMP is the master improvement plan from
which subsequent site specific storm runoff management plans for
NCPC development areas are derived. Each development project
must engage a runoff management system that will maintain post -
project flow rates to within ben percent of the pre -developed
condition, in accordance with the certified LCP.
24-62
EXHIBIT _ C
Date
Document
A nlAp- Fal
Relations Proposed Project
1991
Final EIR 517
Approved Certified
San Joaquin Hills PC
Addendum 1, Addendum
SJHPC
lniaal Study 1, Addendum
PA21
No. PA9501191PA950120,
Addendum 1P98-070
1994
Addendum to FEIR No.
Certified by the
Site Development Permit to allow mass grading in PA 3A and for a
511 -PA 940113 Site
County of Orange
borrow site (in PA 313) in an area previously analyzed for
Development
development.
Pem Mishbone Hill
Grading
1995
Mitigated Negative
Approved by the
Negative Declaration addressed potential environmental effects .of
Declaration No. 1P,95-100,
County of Orange
deleting segments of Sand Canyon Avenue and San Joaquin Hills
Transportation Element
Road from the County Master Plan of Arterial Highways (MPAH).
Amendment 95-1
Most relevant to the proposed project, NC Phase 1V-2, the approval
of the MPAH amendments removed the master planned segment of
San Canyon Avenue from its existing terminus just north of PCH to
the San Joaquin Hills Transportation Corridor (SJHTC), and deleted
the then planned interchange of San Canyon Avenue at the SJHTC.
The removal of this planned segment was the result of changes in
future land uses in the City of Irvine (PA 22) that would result in
more open spacelless development and in unincorporated Orange
County property/Newport Coast/Newport Ridge
areas. Therefore, San Canyon Avenue north of PCH has been
changed in name (application. in review at County) to Crystal Cove
Drive, and will serve as a community'access/entrystreet rather than
a County arterial.
1995
Ord. #3931 & Reso #95-
Approved by County
PA22, Newport Ridge PC
180.
of Orange
1996
Second Amendment to the
Approved by the
The LCP Second Amendment further modified the LCP by adjusting
Newport Coast Local
County of Orange,
planning area. boundaries and open space boundaries adjacent to .
Coastal Program Land Use
and certified by the
Crystal Cove State Park to improve habitat connectivity; the Second
Plan and Implementing
California Coastal
Amendment increased the maximum number of dwelling units
Ordinance for the Newport
Commission
allowed in undeveloped planning areas to match the low end of
Coast Planning Unit
density ranges established by the land use categories while
maintaining the maximum allowed 2,600 total dwelling units in the
NCPC; technical revisions were made to the LCP including name
changes to roads and planned communities.
1996.
Natural Community
Certified by the
Addressed NCCPIHCP for Central/Coastal Orange County. Plan
Conservation Plan and
County of Orange,
includes 37,000 acre reserve system, authodzessincidentai'take of
Habitat Conservation Plan
California Department
coastal sage'scrub, and provides regulatory coverage for 39 -
Joint Programmatic FEIR,
of. Fish and Game,
individual species. The proposed project site is not within the NCCP
No. 553IFEIS 96-26
and U.S. Fish and
Reserve since the site was master planned for development.
Wildlife Service
Mitigation measures prescribed in FEIR 511'and FEIR 5531FEIS 96-
26 (NCCP) pertain to project impacts to coastal sage scrub and are
applied in this EIR.
1996
Addendum to Final EIR No.
Adopted by the
Addressed proposed amendments to the Central and Coastal
553 for the County of
County of Orange
NCCPIHCP to reflect relevant provisions of the Second. Amendment
Orange Central and
to the Newport Coast Local Coastal Program (LCP). The
Coastal Sub region Natural
amendments to the NCCPIHCP included a) revisions to the Coastal
Community Conservation
Subarea Reserve to reflecd new development and open space
Plan and Habitat
configurations provided for in the-LCP Second Amendment; b)
Conservation Plan
corresponding elimination of certain Special Linkage Areas, and c)
provisions forinfrastructure to be located in areas proposed to be
added to the Coastal Subarea Reserve. The amendments to the
Reserve System boundaries represent an -overall increase in total
acreage of the Coastal Subarea Reserve, and significant
improvements in wildlife connectivity within the Reserve System.
1997
Addendum PA 970046 to
Certified by the
Addressed a modified development plan for one-half of Planning
EIR No. 511
County of Orange
Area 3A; known as Development Area (DA) 3A-1. The proposed
project site is not within DA 3A-1.
24-63
F`ITTRTT 1:
Date
Document
MnlA- - fal
RelationshIlW Proposed Project
1997-
FEIR 568, Phase 1V-2 of
Certified by the
Evaluated construction level impacts for PA 3A-2, 3B, 12B and 14,
1998
the Newport Coast Planned
County of Orange
including: shifting of development area boundaries; extending
Community, Newport Coast
development into lower Los Trancos Canyon; providing for
Planning Areas 3A-2, 3B,
neighborhood commercial uses near PGH, and increasing flexibility
14; MCDP Sixth
for tourist commercial uses in PA14: The project establishes
Amendment and Coastal
infrastructure and mass pads to facilitate future residential
Development Permit; TTMs
development and commercial projects in PA 3A-2, 313, recreation In
15444 and 15446.
PA 12B and touristMsitor uses in PA14. TfMs 15444 and 15446
subdivide the project for financing and conveyance purposes.
11998-
FEIR 569, Phases IV -3 and
Certified by County of
Evaluated construction level impacts fnr PAs 4A, 4B, 5, 6, 12C, 12E
IV -4 of the Newport Coast
Orange
and 12G. Uses proposed include residential and recreation:
Planned Community,'
Included: MCDP Seventh Amendment -Program analysis of 335
Newport Coast Planning
residential units in Phase IV -3, 24 gross acre private recreation
Areas 4A, 48, 5, 6, 12C,
facility in 12E, 300 residential units in Phase IV -4, shifting of
12E, and 12G and MCDP
planning area boundaries; shifting of development from PA12G;
Seventh Amendment- TTM
increase the maximum number of residential units allowed in
15447
underdeveloped planning areas, adjustmentfexpansion at the types
of recreation; subdivision of PA into development components,
deletion of appealable areas; relocation of 66KU transmission of an
emergency access/utility road in county open space. TTM 15447- ,
mass grading and infrastructure, including construction of major
circulation improvements, drainage structures and utility
improvements; State Parks Public Works Plan -amendments to allow
for improvement and maintenance within Crystal Cove State Park.
199.8
Addendum covering: Land
Approved by County
SJHPC PA 22 Re -named Newport Ridge PC
Use Element LU98-1
of Orange
Community Profile
Amendment CPA984,
Zone Change 3C-98-1
(Reso 98-87) ;
Site Development Permit
98-0117,
Local Parks
Implementation Plan PM
92-01;
TTM 15333;
PA21
P.C. Re,so 95-20;
TTM 15717;
TTM. 15134, 15135,
VTTM 15585;
PA22
TTM'15934, 18037;
PA 99-015 for Site
Development Permit -00-
0029 SDP,
TTM 15935
1999
Addendum No. PA980117
Approved by County
San Joaquin Hills PC; PA 21
of Orange
2000-
Coastal Commission
Approved by
Seventh Amendment for NCPC. Proposed project includes mass
2001
Appeal No. A5 -IRC -99-
Califamia Coastal
grading, back lane infrastructure for future residential and
301A
Commission
recreational development in PA 4A, 48, 5, (northeaster 2C), 6, 12C,
offer tD dedicate open space in 12E and 12G and approval of TTM
15447. Also includes 1.6 acres of Needlegrass restoration and
riparian mitigation totaling approximately 3'acres to mitigate .0529
acres of wetland impact and approximately seven miles of "non -
wetland" waters of the U.S.
24-64
DRAFF AuMt 29, 2001
Page 16 of 16
Exhibit D
List of County Development Approvals
The components of the Development Plan. as shown by various Development Approvals include:
A. Newport Coast Local Coastal Program 2' Amendment and all further amendments adopted
before the City assumes permit issuing authority for the property as provided for within this
Agreement. The Newport Coast Local Coastal Program, 2'd Amendment was approved by the
California Coastal Commission on October 10, 1996; certified by the County of orange Board of
Supervisors on December 3, 1996 (Resolution No. 96-861 and ordinance No. 096-3974); and
Certified by the California Coastal Commission on January 21, 1997;
B. Newport Ridge Planned Community Program: Approved by the County of Orange Board of
Supervisors on March 17, 1998 (Resolution Nos. 98087 and 98-88; Ordinance No. 98-3);
C. Newport Coast Master Coastal Development Permit 7`h Amendment (PA 970152); Approved by
the County of Orange Planning Commission on July 21, 1998;
D. First Amendment to the Irvine Coast Development Agreement: Recorded April 2, 1997 (No.
19970149745); and
E.. Related secondary implementing approvals, permits, and actions pursuant to and consistent
with the foregoing (e.g. subdivision maps, individual coastal development permits, grading plan
approvals and permits, etcetera).
F. An Annexation and Development Agreement between the City of Newport Beach, The Irvine
Company, and Irvine Community Development Company; approved by the Newport Beach City
Council on July 24, 2001.
24-65
EXHIBIT E
MITIGATION MEASURES
fhe term Mitigation Measures includes, but is not limited .to, the mitigation measures approved in
conjunction with the certification or approval of the following environmental and planning documents.
This Exhibit is for information only and does not constitute any modification or amendment or any
mitigation measure or condition adopted with reference to the Project. The environmental
documents listed in this Exhibit are on file in the Planning Department of the City of Newport Beach.
1. Irvine Coastal Community General Plan Amendment, Final EIR No. 134;
2. Irvine Coast Local Coastal Program 80-4/Land Use Element Amendment 80-4; Supplemental
EIR No. 237; LCP Implementation Action Plan;
3. FEIR No. 486, Irvine Coast Planned Community Development Agreement. Addendum for
Development Agreement First Amendment
4. FEIR No. 485, Irvine Coast Planned Community Master Coastal Development Permit MCDP
88-11P and Vesting "A" Tentative Tract Map No. 13337
5. Final EIR No. 511, Irvine Coast Planned Community, Phase I
6. Refined Master Drainage and Runoff Management Plan
7. Addendum to FEIR No. 511 -PA 940113 Site Development Permitl fishbone Hill Grading
8. Mitigated Negative Declaration No. IP -95-100, Transportation. Element Amendment 95-1
9. Natural Community Conservation Plan and Habitat Conservation Plan Joint Programmatic
FEIR No. 553IFEIS 96-26
10. Second Amendment to the Newport Coast Local Coastal Program Land Use Plan and
Implementing Ordinance for the Newport Coast Planning Unit
11. Addendum to Final EIR No. 553 for the County of Orange Central and Coastal Subregion
Natural Community Conservation Plan and Habitat Conservation Plan
12. Addendum PA 970046 to EIR No. 511
24-66
EXHIBIT F
AFFORDABLE HOUSING IMPLEMENTATION PLANS
The term Affordable Housing Implementation Plans refers to two pians prepared for the
Environmental Management Agency of the County of Orange. The plan for that portion of the
Property within the Coastal Zone - identified as the "Affordable Housing Implementation Pian - Irvine
Coast Planned Community" - was prepared by Affordable Housing Consultants and was approved
by the County on October 29, 1991.
The plan for the Newport Ridge - identified as the "Affordable Housing Implementation Plan — The
San Joaquin Hills Planned Community" - was prepared by FORMA and was approved by the
County on November 2, 1995.
These Affordable Housing Implementation Plans are available for public inspection in the Planning
Department of the City of Newport Beach during normal business hours.
24-67
Attachment 6
October 6, 2016 Planning Commission
Resolution and Meeting Minutes
-.:
RESOLUTION NO. 2031
A RESOLUTION OF THE PLANNING COMMISSION OF THE
CITY OF NEWPORT BEACH, CALIFORNIA, RECOMMENDING
THE CITY COUNCIL APPROVE THE FIRST AMENDMENT TO
ANNEXATION AND DEVELOPMENT AGREEMENT BETWEEN
THE CITY OF NEWPORT BEACH, THE IRVINE COMPANY AND
IRVINE COMMUNITY DEVELOPMENT CONCERNING THE
NEWPORT COAST AND ADJACENT PROPERTIES (PA2016-
165)
THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS
FOLLOWS:
SECTION 1. STATEMENT OF FACTS.
1. An application was filed by The Irvine Company (TIC), with respect to property commonly
referred to as Newport Coast and Newport Ridge as legally described in Exhibit "A" of the
Annexation and Development Agreement Between the City of Newport Beach and Irvine
Company and Irvine Community Development Company Conceming the Newport Coast
and Adjacent Properties (Agreement), which is incorporated by reference herein.
2. In 2001, the City, TIC, and Irvine Community Development Company entered into the
Agreement for the annexation and development of approximately 7,799 acres along
Newport Coast (Property).
3. TIC requests to extend the term of the Agreement as specified in Section 10.1 of the
Agreement from January 1, 2017 to January 1, 2032. No other substantive changes,
including changes to commercial and residential development capacity are proposed.
4. The Property includes the following General Plan Land Use Categories: Single -Unit
Residential Detached (RS -D), Multiple Residential (RM), Multiple Residential Detached
(RM -D), Neighborhood Commercial (CN), Visitor Serving Commercial (CV), Open Space
(OS), Parks and Recreation (PR), Private Institutions (PI), and Public Facilities (PF).
5. The Property is located in the Newport Coast Planned Community (PC 52) and Newport
Ridge Planned Community (PC 53) Zoning Districts.
6. The portion of the Property, located within the boundaries of the Newport Coast Local
Coastal Program (LCP) and Newport Coast Planned Community (PC 52), is located
within the coastal zone. The portion of the Property located within the boundaries of the
Newport Ridge Planned Community (PC 53) is not located within the coastal zone.
7. The Property is subject to the Cooperative Agreement between the County of Orange
(County) and the City, dated October 9, 2001 (the Cooperative Agreement). Pursuant to
the Cooperative Agreement, the County shall retain land use authority for the Property
until: (1) the development of the Property is complete; or (2) the City agrees to assume
municipal land use authority. The Cooperative Agreement between the County and the
24-69
Planning Commission Resolution No. 2031
Page 2 of 6
City remains in full force and effect until all entitlement granted by the Development
Agreement has been completed, or unless the conditions for expiration specified in
Section 51302 of the Government Code are satisfied.
8. A public hearing was held on October 6, 2016, in the Council Chambers located at 100
Civic Center Drive, Newport Beach. A notice of time, place and purpose of the public
hearing was given in accordance with the Newport Beach Municipal Code (NEMC).
Evidence, both written and oral, was presented to, and considered by, the Planning
Commission at this public hearing.
SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION.
1, All significant environmental concerns for the proposed project have been addressed
in the previously prepared environmental documents certified by the County and
described in Exhibit C of the Agreement, which is incorporated by reference herein,
and the City intends to use said documents for the Amendment, and further that there
are no additional reasonable alternative or mitigation measures that should be
considered in conjunction with said project. Copies of the previously prepared
environmental document are available for public review and inspection at the City's
Planning Division.
2. The Planning Commission 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. REQUIRED FINDING
1. Unless otherwise provided by the development agreement, the ordinances, rules,
plans and policies of the City which govern permitted uses of land, the density of
development, and the design, improvement and construction standards and
specifications, applicable to development of the Property, shall be those ordinance
rules, plans and policies in force at the time of execution of the Agreement. The
Agreement shall not prevent the City of Newport Beach in subsequent actions
applicable to the Property, from applying new rules, regulations, and policies which do
not conflict with those rules, regulations, and policies applicable to the Property as set
forth in the Agreement, nor shall the Agreement prevent the City of Newport Beach
from denying or conditionally approving any subsequent development project
application on the basis of such existing or new rules, regulations and policies.
2. The Amendment will continue to allow the development of a residential community,
containing a mix of housing types, supporting retail and active parklands, consistent
with the land uses, densities and intensities of the Newport Coast Planned Community
24-70
Planning Commission Resolution No. 2031
Page 3of6
(PC 52) and Newport Ridge Planned Community (PC 53) Zoning Districts, Newport
Coast LCP and City's General Plan.
3. This amendment does not add any lots, units, building sites or structures to the
Property and does not change the approved design or uses allowed by Newport Coast
Planned Community (PC 52) and Newport Ridge Planned Community (PC 53) Zoning
Districts, Newport Coast LCP and the General Plan.
4. The portion of the Property located within the coastal zone is governed by the
previously certified and currently effective Newport Coast segment of the Orange
County LCP Second Amendment. Because the Property is governed by the certified
LCP, this Amendment is effective upon approval by the City Council and no further
approval need be obtained from the California Coastal Commission under California
Government Code Section 65869.
SECTION 4. DECISION.
NOW, THEREFORE, BE IT RESOLVED:
The Planning Commission of the City of Newport Beach hereby recommends City
Council approval of the proposed amendment, Development Agreement No. DA2016-
002, as set forth in Exhibit "A," which is attached hereto and incorporated herein by
reference, with the added provision that the length of the extension be commensurate
with the public benefit provided to the City by TIC.
PASSED, APPROVED, AND ADOPTED THIS 6T" DAY OF OCTOBER, 2016.
AYES: Dunlap, Hillgren, Kramer, Koetting, Zak, and Weigand
NOES: None
s : MA P11�12[ma-
ABSENT:
a -
ABSENT: Lawler
24-71
Punning Commission Resolution No. 2031
Page 4 of 6
Exhibit A: Amendment to Agreement (Draft)
Exhibit B: Existing Agreement (Including Exhibits)
24-72
NEWPORT BEACH PLANNING COMMISSION MINUTES
10/06/16
Motion made by Commissioner Hillgren and seconded by Commissioner Dunlap to adopt Resolution affirming
that the proposed correction to the Land Use Element related to Anomaly No. 60 located in Newport Coast is
accurate and consistent with Section 8 of City Council Resolution No. 2006-76 adopting the City of Newport
Beach 2006 General Plan.
AYES: Kramer, Koetting, Zak, Dunlap, Hillgren, Weigand
NOES: None
ABSTAIN: None
ABSENT: Lawler
7. NEWPORT COAST DEVELOPMENT AGREEMENT (PA2016-165)
Site Location: Citywide
Senior Planner Ramirez incorporated the presentation made for Item No. 6. The Irvine Company
requested a 15 -year extension of the Development Agreement with the City regarding Newport Coast
and adjacent areas. The Development Agreement became effective in 2002 and granted rights to the
Irvine Company. Development capacity remained in Newport Coast, specifically in Anomaly No. 60.
Staff recommended approval of the extension. A public benefit fee was under discussion.
In response to Chair Kramer, Senior Planner Ramirez indicated some consideration was being paid for
the extension of rights. He believes Council Member Selich and Mayor Dixon were participating in the
fee discussion. The Irvine Company was not requesting any other changes to the Development
Agreement. The rights granted by the Development Agreement were contained in the Local Coastal
Program (LCP), the Planned Community, and the City's General Plan. Without the Development
Agreement, perhaps the City could amend the General Plan to move the rights and change the
development capacity. In which case, the General Plan would be inconsistent with the Master LCP. In
his opinion, the City was obligated to approve the Development Agreement.
Deputy Director Wisneski clarified that the Planning Commission provided a recommendation to the City
Council regarding the Development Agreement. The City Council would take final action on the
application.
In response to Vice Chair Koetting, Senior Planner Ramirez indicated the extension of 15 years was
likely based on the original term of 15 years.
Shawna Schaffner, CAA Planning representing the Irvine Company, provided a history of the
Development Agreement. The County held development authority over Newport Coast even though
Newport Coast was annexed into the City. The existing documents should be extended to allow the City
to develop a Local Coastal Program for Newport Coast, which could require a few more years. The
original term was 15 years and a Local Coastal Program had not been approved in the past 11 years;
therefore, an extension of 15 years was logical.
In response to Vice Chair Koetting, Ms. Schaffner advised development could occur even though the
LCP was not complete. The LCP was not delaying progress. The Irvine Company wished to protect its
vested rights that were administered by the County but located in the City. It would be helpful for the
Development Agreement to remain in place while the LCP was developed and adopted.
In response to Commissioner Hillgren, Deputy Director Wisneski indicated the Development Agreement
was before the Planning Commission in accordance with requirements of the Zoning Code. There were
no development considerations in the Planning Commission's action. It was logical for the property
owner to secure the entitlement over time. There are no planning issues to consider because
entitlements had been established in the County's LCP. If the Planning Commission recommended
denial of the extension, the entitlement remained in the LCP.
Chair Kramer opened the public hearing.
Page 13 of 16
24-73
NEWPORT BEACH PLANNING COMMISSION MINUTES
10/06/16
Jim Mosher reiterated his previous comment regarding a study session with County planning
representatives. He remained convinced that the previous action was inconsistent with LCP limits. The
Newport Ridge portion of the Development Agreement had not been reviewed; yet, the Planning
Commission was being asked to protect rights for Newport Ridge for 15 years. Ms. Schaffner calculated
a different number for built development. The issues were confused. He doubted the Commission
could make the finding that 40 -year-old CEQA determinations were relevant.
Dan Purcell requested Mr. Mosher's comments be taken as his.
Chair Kramer closed the public hearing.
In response to Chair Kramer, Deputy Director Wisneski explained that the public benefit was evolving.
The Irvine Company and Council representatives were discussing the matter. Typically, the Planning
Commission considered a Development Agreement in the context of a project. The terms of the
Development Agreement were not within the Planning Commission's purview because they were not
planning related.
Secretary Zak stated the Planning Commission did not have all the terms and conditions for the
Development Agreement it was being asked to consider. The City Council continued to negotiate some
of the terms.
Chair Kramer noted the draft amendment did not reference the public benefit.
Deputy Director Wisneski suggested the Commission's recommendation include a request that the City
Council include a public benefits fee at an appropriate level in the Development Agreement.
Secretary Zak did not understand how the Commission could make that recommendation if the public
benefit was not within the Commission's purview. Chair Kramer clarified that language regarding a
public benefit should be in the Development Agreement. Secretary Zak felt a blank for a dollar amount
was a policy decision. Chair Kramer stated the City Attorney should have included some language.
Secretary Zak disagreed. Chair Kramer noted the staff report referenced it. Secretary Zak did not wish
to make it part of the Resolution.
In response to Secretary Zak, Deputy Director Wisneski explained that the fine Ms. Schaffner
referenced was related to the City having a Certified Local Coastal Program for Newport Coast. The
Development Agreement was a separate issue. The City had been fined $12,000 per year since the
adoption of the state legislation. The fine would cease once an LCP was certified. She believed the fine
was paid to the Coastal Conservancy.
Ms. Schaffner referred to the original Development Agreement, which contained no public benefit fee.
The public benefits were identified in the Development Agreement between the County and Irvine
Company. The City received no distinct dollar amount as a public benefit.
In response to Chair Kramer, Ms. Schaffner agreed that the City could receive a benefit for extending
the Development Agreement. A meeting was scheduled for the following week to discuss a public
benefit. Discussions had been held, but not an in-person meeting.
Vice Chair Koetting indicated he could find no language regarding an extension or a right for an
extension. Chair Kramer advised language could be found in Section 10.18, amendments in writing.
Deputy Director Wisneski reported the amount of public benefit was a policy issue. The item contained
no planning -related issues. She recommended the Commission recommend the City Council approve
the Development Agreement.
Commissioner Hillgren advised he was comfortable with the Development Agreement not referring to a
public benefit. However, he was not comfortable recommending approval without considering planning
issues, which were lacking. Deputy Director Wisneski stated the project contained no planning
elements. Commissioner Hillgren felt the extension of development rights was a planning issue.
Page 14 of 16
24-74
NEWPORT BEACH PLANNING COMMISSION MINUTES
10/06/16
In response to Commissioner Weigand, Deputy Director Wisneski indicated the item had to be
presented to the Council prior to the end of the year, probably in November. Senior Planner Ramirez
added that the Council would need to review it at the first meeting in November to allow time for a
second reading.
Senior Planner Ramirez explained that the planning entitlements had already been approved in Newport
Coast.
In response to Chair Kramer, Deputy City Attorney Maiorano reported the failure to take an affirmative
vote was effectively a denial as stated in the Commission's Bylaws. Government Code Section 65867.5
required adoption of the Development Agreement by ordinance. In addition, the Council had to make a
finding that the Development Agreement was consistent with the General Plan at the time of adoption.
Director Brandt agreed the application was unusual. The original Development Agreement did not
include any extensions. In order to extend the term of the Development Agreement, an amendment
was required. No changes to the existing General Plan designations or development capacities were
being proposed as part of the extension. During the 15 -year extension, the City would commit to not
changing the General Plan for properties in Newport Coast. This was the issue for the Planning
Commission. This was a continuation of the existing 2006 General Plan for Newport Coast for an
additional 15 years. The Environmental Impact Report (EIR) for the 2006 General Plan accounted for
the development capacity for Newport Coast, and that capacity remained unchanged with the extension.
The development entitlements would not extinguish on January 1; the vested right to have those for the
property would extinguish on January 1.
In response to Secretary Zak, Director Brandt clarified that the amendment to the Development
Agreement would allow for extension of the Development Agreement.
Secretary Zak suggested the Commission recommend an extension to the Development Agreement
but, without knowing the precise number of the public benefit, the Commission could not determine
whether the public benefit was appropriate for the term of the extension.
Motion made by Secretary Zak and seconded by Commissioner Hillgren to adopt the Resolution approving the
first amendment to the annexation of the Development Agreement with the term of the extension at the
discretion of the Council.
AYES:
Kramer, Koetting, Zak, Dunlap, Hillgren, Weigand
NOES:
None
ABSTAIN:
None
ABSENT:
Lawler
VIII. STAFF AND COMMISSIONER ITEMS
8. MOTION FOR RECONSIDERATION — None.
9. COMMUNITY DEVELOPMENT DIRECTOR'S REPORT
Update on the General Plan/Local Coastal Program Implementation Committee
Deputy Community Development Director Wisneski reported staff was proceeding in
discussions with the Coastal Commission staff in reviewing modifications. The suggested
modifications will be presented to the City Council in a study session on October 25. Public
hearings would be held in November.
2. Update on City Council Items
Page 15 of 16
24-75
Attachment C
Applicant Letter
24-76
CAA PLANNING
October 25, 2016
Mr. Gregg Ramirez
Senior Planner
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
Subject: Newport Coast Development Agreement Extension Request
Dear Mr. Ramirez:
Irvine Company has recently submitted an application to the City of Newport Beach to amend
the Newport Coast Development Agreement. As you are aware, there is a lengthy history related
to the Newport Coast area and Irvine Company's development interests therein.
Background
The County of Orange and Irvine Company entered into a Development Agreement dated May
23, 1988 for the development of the Irvine (Newport) Coast Planned Community. This resulted
in a lengthy process involving a number of planning and environmental documents related to
development of the property. The County of Orange/Newport Coastal Local Coastal Program
and Master Coastal Development Permit governed the rtion of the property within the Coastal
Zone. In 1996, the Coastal Commission certified the 2' Amendment to the Newport Coast Local
Coastal Program.
The City expressed interest in annexing Newport Coast. However, development approvals
involve complex and interrelated planning documents and the City did not have sufficient staff to
timely process the permits. Therefore, Newport Coast is governed by the previously certified and
currently effective Newport Coast segment of the Orange County Local Coastal Program (LCP)
Second Amendment. The LCP is administered by the County under special legislation adopted
by the California Legislature (Public Resources Code §30519.2, Senate Bill 516). The legislation
included a provision encouraging the City to work towards certification of its own LCP within
24 months of annexation, which has not occurred to date. Further, the special legislation
proclaims that "the City of Newport Beach seeks to preserve the open -space dedications and
entitlements protected by an existing certified local coastal program."
In October 2001, the City entered into a Cooperative Agreement with the County stating that the
County would retain permit and land use authority until each planning area was fully improved.
In November 2001, the City of Newport Beach (City), Irvine Company and Irvine Community
Development Company (ICDC) entered into an Annexation and Development Agreement
65 Enterprise, Suite 130 • Aliso Viejo, California 92656 • (949) 581-2888 • Fax (949) 581-3599
24-77
Mr. Greg Ramirez
October 25, 2016
Page 2 of 2
concerning the Newport Coast for the annexation and development of approximately 7,799 acres
along Newport Coast. The Property was annexed into the City on January 1, 2002. Unless
otherwise amended, the Development Agreement will expire on January 1, 2017.
The Development Agreement conferred on the City the benefit of annexation of Newport Coast.
In addition, the Development Agreement carried forward the County benefits and obligations
which have been met and include the following:
Funding ($250,000) for Newport Coast fire station
Funding ($422,500) for a library
Road Fee Program Fees (SJHTC, San Joaquin Hills Road, Pacific Coast High, Newport
Coast Drive, Traffic Signals)
Funding ($392,310) for a Sheriff's Substation
Funding ($52,000) for child care
Parks/Irvine Coast Wilderness Open Space - 2,666 acres dedicated
The City's ordinance approving the Development Agreement included a declaration that: The
Development Agreement will preserve the benefits of years of land use planning and open space/
habitat preservation efforts, while establishing ultimate City control of the area (emphasis
added). Because the City has not adopted an LCP during the fifteen year duration of the
Development Agreement, Irvine Company now requests an extension prior to the Agreement
expiring in January 2017. Irvine Company feels it would be prudent of the City to extend the
Development Agreement duration in order to complete the process envisioned when the
Agreement was first entered. The extension of the term of the Agreement would be from January
1, 2017 to January 1, 2032. No other changes are requested.
Sincerely,
CAA PLANNING, INC.
Shawna L. Schaffner
Chief Executive Officer
c: Dan Miller, Irvine Company
24-78
Attachment D
Newport Ridge/Newport Coast Map
24-79
U U
7
a� o
00 00 �
DO q
> D A.
AOX/I mm
OQ� o 0
O
D
Newport Coast
Newport Ridge
0 3,000 6,000
Feet
w Newport Coast / Newport Ridge e
-J, Planned Community Boundaries
�� 41
Document Name: NewporiL Coast Ridge _Boundaries Date: 09/29/2016
M
Attachment E
Applicant Letter, dated November 14,
2016
24-81
" IRVINE COMPANY
Since 1864
November 14, 2016
Honorable Mayor Diane Rixon
City Council Members
City of Newport Beach
100 Civic Center Drive
Newport Keach, CA 92660
Subject: Newport Coast Annexation and Development Agreement Extension
Dear Mayor Dixon and Council Members:
For nearly two years, Irvine Company has been working with the. City of Newport Beach (City)
Staff to amend the expiration date of the Annexation and Development Agreement for Newport
Coast (Annexation Agreement). The City's 2001 ordinance originally approving the Annexation
Agreement (Ordinance 2001-13) included a declaration that: "The Agreement will preserve the
benefits of years of land use planning and open space/habitat preservation efforts while
establishing ultimate City control of the area." While there have been significant benefits accrued
to the City related to Irvine Company and the County of Grange's (County) years of land use
planning, the City has yet to secure land use authority over the area. The original goal of the
Annexation Agreement was to allow for the City to annex Newport Coast in exchange for the
decades of work involved in securing development entitlements through the County and the
California Coastal Commission,
In the 15 years that the Annexation Agreement has been in place, Irvine Company successfully
completed each of its obligations under the Annexation Agreement. However, the City has not
adopted a certified Local Coastal Program (LCP) which merges the Newport Coast LCI' and the
recently approved City LCP during the duration of the Annexation Agreement. This is the basis
of Irvine Company's request for an extension of the term of the Annexation Agreement from
January 1, 2017 to January 1, 2032. No other substantive changes are requested
It is important to recognize that the benefits and obligations from the original 1988 Newport
Coast Development Agreement between the County and Irvine Company (County Agreement)
governing the property was referenced as containing all such benefits. As further detailed below,
it is unreasonable to exact additional public benefits beyond those extraordinary benefits already
provided, when the reason for the requested time extension is due to the City's lack of local land
use authority.
The County will retain the land use authority for Newport Coast consistent with the Special
Legislation (Public Resources Code § 30519.2) which was adopted to allow for the annexation of
the land area even though land use authority by the City was not possible, while allowing for
continued land development pursuant to the certified LCP for the County. This legislation also
550 Newport Center Drive, Newport Beacl-i. CA 92660 949.720.2000
24-82
Mayor Diane Dixon/Council Members
November 14,20-16.
Page 2 of 4
encouraged the. City to promptly adopt: an LCP for Newport Coast within a 24 month time
period, and requires the. City to pay a "monthly late fee ($1,000 per month) until the time that the
City commences implementation of an effectively certified. local coastal program. The City may
not recover the costa of the late fee from. any owner or lessee.of property in the coastal zone."
In addition, a Cooperative Agreement between the County and the City was adopted in October
2001. Section. 3.4 of the Cooperative Agreement called for the County to retain permit and land
use 'authority until each planning area was fully improved:
The County shall retain all the Open Space Authority and
Assessment District Authority for the maximum term permitted by
law. County shall retain all Land Use Authority for each Planning
Area, provided that City shall: assume. Land LJse Authority for a
Planning Area when. that. Planning Area is Fully improved and the
City is. in possession of records that enable the City to provide
planning and building; permit services • for that Planning Area. The
County shall notify the City, in writing, within ten (10) days, after
the County has determined that any Planning Area is fully
improved.
Recital F of :the Annexation Agreement recognized that Irvine Company acquired a fully vested
right to develop the property subject to the Annexation Agreement in accordance with the
existing development approvals because of the extraordinary expenditures for public and private
improvements made in reliance on the development approvals, the: dedications. made in reliance
on the development approvals, and the County Agreement. The City's ability to annex. the
property, which was subject to a significant amount of prior planning and analysis, was a direct
benefit to the City. Irvine Company has expended considerable dollars to meet these obligations,
which were detailed in the: County Agreement as follows, and were incorporated by reference in
the Annexation Agreement:.
Transportation Improvements - Pelican Hill. Road;
■ Circulation Improvements _ San Joaquin Hills Road/PCH/Pelican. Hill Road;
• San Joaquin Hills Transportation Corridor - dedication of a. major portion of right -of
way;
0 Habitat Area Protection 2,666-acre:open space dedication;
Dedication of 1,1.00 acres.of special use parklands;
• Visitvr-serving facilities development;of a future destination resort;
■ Sheriff Substations financial contributions.;
• Library funding;
• Fire facility fielding;
• Standby commitment for South. County road improvements;
• Traffic signal fee program participation;
• Child care facility funding; and
San Joaquin Hills Transportation Corridor feeprogram fiutding.
24-83
Mayor Diane Dixon/Council Members
November 14,2016
Page 3 of 4
The table below restates Irvine Company's obligations under the County Agreement, which have
been fully met as. noted.
Obligations:
Status Ibate
Funding
CFD 88=1
Fire Station -Newport. Coast
Obligation rnet
Reported 2003 AMR
CFD 92.1.
Cash Payment -. $250,0.00
Library
Obligation met
Reported 1997 AMR
Cash Payment -.$422;500
Parks - Irvine Coast Wilderness Open
Obligation met
Reported 1997 AMR
2,666 Acres
Space
Transportation
- Road Fee Programs
CfARITS1TrafficSignal Fees
Obli.gation.met
Reported 2003 AMR
SJHTC Fees
Obligation met
Reported .2003 AMR
CFD 88-1
S,1HTC Offer of Dedication
Obligation.met
Reported -2.003. AMR.
CFD 01-1.
San :Joaquin Hills Road
Obligation met
Reported 2003 AMR.
- Other Roads
Pacific Coast.Highway
Obligation met
Reported 2003 AMR
Newport. Coast Drive
Obligation met
Reported 2003 AMR
Child `Care.
Obligation met
Reported 2003 AMR
Cash Payment - $52,000
.sheriff Substation
Obligation tot J
Reported 1997 AMR
Cash Payment -:$392,810
As part of the Annexation Agreement, Irvine Company obtained the City's assurance that
development of the property would be subject only to costs, fees, processing requirements,
conditions, or exactions that would. have been imposed had the property not been annexed to the
City. Imposition of an additional exaction was not envisioned in or required by any of the
agreements to date, and there is no. justif cation for additional fees beyond what has been stated
in the agreements. Irvine Company has fulfilled all of its obligations, and an extension request is
a direct result of the City's delay in preparing an LCP. If the City had a certified LCP for the
Newport Coast area, there would be no need.to extend. the Annexation Agreement.
In conclusion, Irvine Company respectfully disagrees with the City's request for an. additional $5.
million up fiont "public. benefit fee" prior to approving an extension to the Newport Coast DA,
particularly in consideration of the signifcant.public benefit that has already accrued to the City
as detailed above. Irvine Company has met every obligation outlined in the County Agreement..
The City' ..however, has. failed to meet its obligation with respect to preparation of .a certif ed
LCP, as required by Public Resources Code section 30519.2..
In. addition, we note that the. Uptown Newport Property Development Agreement was recently
amended. An ownership transfer occurred that: included assigning the development agreement. to
the new ownership. The amendment permitted the owners, at their option .and discretion, to defer
payment of the required $32,54.0 per residential wait fee from issuance of building permits to
issuance of 'certificates of occupancy. The. amendment also deferred parkland dedication in -lieu
fees, also at the owners' option and discretion, from time of issuance of building permits to a
later date for "deferred units" as identified in the development agreement. The development
agreement does not include a provision or requirement. for payment of any additional
consideration related to approval of the amendment or any increase in costs, other than a CPT.
adjustment for deferred residential unit fees
NM
Mayor Diane Dixon/Council Members
November I4, 2016
Page.4 of 4
In summary; Irvine Company requests an extension of the termination date of the Annexation
Agreement because the City has. not provided an LCP within the 24 -month time frame
established in Public Resources Code section 30519.2. The actual time elapsed has been 15 years
without an LCP, and it is. not unreasonable to assume that int could be several more years before
the City obtains land use authority for Newport Coast. The City's adopted. Planned Community
and General Plan both reflect. the development intensity identified in. the LCP, and Irvine
Company is not requesting. additional entitlement. beyond what is contained in. the City's
approved documents.
Therefore, in consideration of the significant public benefits. already provided to the: City and the
continuing benefits of annexation of Newport Coast, the imposition of an additional $5 million
up front fee is excessive. Irvine Company recognizes :arid accepts the City's requirement for the
$71,100 (residential) and $10,000 (hotel) per-unit fee at the time of building permit issuance;
however, we object to the added exaction without justification. Since all fees and obligations
have been met by Irvine Company, :the City is. not being impacted by deferral or loss of revenue..
Absent a breach on. the pari of Irvine Company to meet its obligations, the imposition of an
additional fee is not justified.
incerely,
j4
1'/
Dan Miller
Senior Vice President
Entitlement and :Public Affairs
cc: Dave Kiff, City Manager
Kim Brandt, Community Development Director
24-85
Attachment F
State Public Resources Code Section
30519.2
-:.
Excerpt from California Public Resources Code
30519.2. (a) (1) This subdivision shall only apply to territory described in
paragraph (2) and defined as the "Annexed Area."
(2) For purposes of this section, "Annexed Area" means the territory
consisting of approximately 5,450 acres in the County of Orange bounded to
the north by the inland boundary of the coastal zone, to the east by the
western boundary of Crystal Cove State Park, to the south by the state's
outer limit of jurisdiction over the Pacific Ocean, and to the west by the
city limits of the City of Newport Beach.
(3) This subdivision shall be operative upon the effective date of the
annexation of all or part of the Annexed Area by the City of Newport Beach.
(4) Upon the recordation of a certificate of completion of any
reorganization or change of organization that results in the annexation of
all or part of the Annexed Area by the City of Newport Beach, both of the
following shall occur:
(A) The local coastal program applicable to any part of the
Annexed Area shall continue to be the certified local coastal
program for the County of Orange.
(B) The County of Orange shall continue to exercise all
development review authority described in Section 30519, as
delegated to it by the commission consistent with the certified
local coastal program of the County of Orange for the Annexed
Area.
(5) If, at any time after the recordation of the certificate of
completion of the annexation of the Annexed Area, the City of Newport Beach
elects to assume coastal management responsibility for the Annexed Area, the
city may begin preparation of a local coastal program for that area. The City
of Newport Beach may adopt provisions of the County of Orange's certified
local coastal program that apply to the Annexed Area. All of the procedures
for the preparation, approval, and certification of a local coastal program
set forth in this division, and any applicable regulations adopted by the
commission, shall apply to the preparation, approval, and certification of a
local coastal program for the Annexed Area.
(6) If the City of Newport Beach obtains certification of a local
coastal program for the Annexed Area, the city shall, upon the effective date
of that certification, exercise all of the authority granted to a local
government with a certified local coastal program, and the provisions of
paragraph (4) shall become inoperative.
(b) On or before June 30, 2003, or 24 months after the annexation of the
Annexed Area, whichever event occurs first, the City of Newport Beach shall
submit to the commission for approval and certification the city's local
coastal program for all of the geographic area within the coastal zone and
the city's corporate boundaries as of June 30, 2000. The submittal may
include a local coastal program segment for the Annexed Area that will
implement the local coastal program for the County of Orange as described in
paragraph (4) of subdivision (a).
(c) If the City of Newport Beach fails to submit a local coastal program to
the commission for approval and certification pursuant to subdivision (b) or
24-87
does not have an effectively certified local coastal program within six
months after the commission's approval of the local coastal program, the City
of Newport Beach shall submit a monthly late fee of one thousand dollars
($1,000) to be deposited into the Violation Remediation Account of the
Coastal Conservancy Fund, to be expended in accordance with the purposes of
Section 30823. The City of Newport Beach shall pay the monthly late fee until
the time that the city commences implementation of an effectively certified
local coastal program. The city may not recover the cost of the late fee from
any owner or lessee of property in the coastal zone.