HomeMy WebLinkAbout05 - Amending the San Joaquin Plaza Planned Community and Approving a Development Agreement for the Museum House Residential ProjectWel
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City Council Staff Report
December 13, 2016
Agenda Item No. 5
HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
Kimberly Brandt, Community Development Director - 949-644-3232,
kbrandt@newportbeachca.gov
PREPARED BY: Gregg Ramirez, Senior Planner, gram irez(a--) newportbeachca. gov
PHONE: 949-644-3219
TITLE: Second Reading and Adoption of Ordinance No. 2016-23 Amending
the San Joaquin Plaza Planned Community Located at 850 and 856
San Clemente Drive and Ordinance No. 2016-24 Approving a
Development Agreement for the Museum House Residential Project
Located at 850 San Clemente Drive (PA2015-152)
ABSTRACT:
The second reading and adoption of these two ordinances will be the final City Council
action necessary to amend the San Joaquin Planned Community Development Plan
and to approve a development agreement between the City of Newport Beach and
Related California Urban Housing, LLC for the Museum House Residential Project
located at 850 San Clemente Drive.
RECOMMENDATION:
a) Find that the Museum House Project Environmental Impact Report (EIR)
No. ER2016-002 (SCH No. 2016021023). certified by the City Council on
November 29, 2016, by Resolution No. 2016-126 was prepared for the project in
compliance with California Environmental Quality Act (CEQA), the State CEQA
Guidelines, and City Council Policy K-3;
b) Conduct second reading and adopt Ordinance No. 2016-23, An Ordinance of the
City Council of the City of Newport Beach, California, Adopting Planned Community
Development Plan No. PC2015-001 Amending the San Joaquin Plaza Planned
Community (PC -19) Located at 850 and 856 San Clemente Drive; and
c) Conduct second reading and adopt Ordinance No. 2016-24, An Ordinance of the
City Council of the City of Newport Beach, California, Approving Development
Agreement No. DA2016-001 for the 100 -Unit Museum House Multi -Family
Residential Project Located at 850 San Clemente Drive.
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Second Reading and Adoption of Ordinance No. 2016-23
December 13, 2016
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DISCUSSION:
On November 29, 2016, the City Council introduced and passed to second reading
Ordinance No. 2016-23 which changes the San Joaquin Plaza Planned Community
(PC) land use designation from Civic/Cultural/Professional/Office to Multi -Unit
Residential for 850 San Clemente Drive and includes new residential development
standards. The City Council also introduced and passed to second reading Ordinance
No. 2016-24 which approves the development agreement (Agreement) between the
City and Related California Urban Housing, LLC.
The City Council also revised Section 3.1 Public Benefit Fee of the Agreement to
increase the fee from $71,100 per unit to $111,100 per unit; for a revised total of
$11,110,000 total. In addition, Section 3.1.1 was added to the Agreement which
provides a list of projects that the City Council expressed an interest in funding with the
fee. The Agreement also states that the City Council retains sole and absolute
discretion in determining the fee's ultimate use and no final decisions have been made.
The City Council's approval also retained the donation of the 856 San Clemente Drive
property to the City.
ENVIRONMENTAL REVIEW:
EIR No. ER2016-002 (SCH No. 2016021023) was prepared, in accordance with the
implementing guidelines of CEQA, the State CEQA Guidelines, and City Council Policy
K-3 which included an analysis of the proposed zoning changes and Agreement. The
City Council certified the EIR on November 29, 2016, by Resolution No. 2016-126.
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers the item).
ATTACHMENTS:
Attachment A - Ordinance No. 2016-23 (PC2015-001)
Attachment B - Ordinance No. 2016-24 (DA2016-001)
Attachment C - Supplemental Memo
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Attachment A
Ordinance No. 2016-23
(PC2015-001)
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ORDINANCE NO. 2016 -
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH, CALIFORNIA, ADOPTING
PLANNED COMMUNITY DEVELOPMENT PLAN NO.
PC2015-001 AMENDING THE SAN JOAQUIN PLAZA
PLANNED COMMUNITY (PC -19) LOCATED AT 850 AND
856 SAN CLEMENTE DRIVE (PA2015-152)
WHEREAS, an application was filed by Related California Urban Housing, LLC
(Applicant) with respect to property located at 850 San Clemente Drive, and legally
described as Parcel 2 of the Parcel Map, in the City of Newport Beach, County of
Orange (County), State of California, as shown on a map recorded in Book 81, Pages 8
and 9 of Parcel Maps, in the office of the County Recorder of said County;
WHEREAS, the project includes demolition of the existing 23,632 -square -foot
Orange County Museum of Art (OCMA) building to accommodate the development of a
25 -story, 100 -unit residential condominium building with two levels of subterranean
parking. The Applicant requests the following approvals from the City of Newport Beach
(City):
• General Plan Amendment (GPA) — To amend Anomaly No. 49 to remove the
property and to reduce the allowed development from 45,208 square feet to
21,576 square feet (Table LU2 and associated figures), and to change the land
use designation for the property from Private Institutional (PI) to Multi -Unit
Residential (RM -100) with a maximum development limit of 100 units.
• Planned Community Development Plan Amendment (Zoning) — To change
the San Joaquin Plaza Planned Community (PC) land use designation from
Civic/Cultural/Professional/Office to Multi -Unit Residential. The PC amendment
also includes new residential development standards including a 295 -foot height
limit measured from finished grade.
• Tentative Vesting Tract Map — To allow the 100 individual dwelling units to be
sold separately as condominiums.
• Site Development Review — To ensure site development is in accordance with
the applicable planned community and zoning code development standards and
regulations pursuant to Newport Beach Municipal Code (NBMC) Section
20.52.080 (Site Development Reviews).
• Traffic Study — To study potential traffic impacts pursuant to the City of
Newport Beach Traffic Phasing Ordinance.
• Development Agreement — To voluntarily enter into a Development
Agreement to provide surety and consistency in the future development of the
Applicant's project.
• Environmental Impact Report (EIR) — To address reasonably foreseeable
environmental impacts resulting from the legislative and project specific
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Ordinance No. 2016 -
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discretionary approvals pursuant to the California Environmental Quality Act
(CEQA).
• Revoke Use Permit - To revoke Use Permit No. UP2005-017 (PA2005-086),
which allows beer and wine sales at the museum.
• Revoke Modification Permit - To revoke Modification Permit No. MD2004-059
(PA2004-184), which allows flagpoles/signage beyond that allowed by the
NBMC;
WHEREAS, the subject property is located within the PC -19 (San Joaquin Plaza)
Zoning District and the General Plan Land Use Element category is PI (Private
Institutional);
WHEREAS, the subject property is not located within the coastal zone;
WHEREAS, a study session was held on April 7, 2016, in the Council Chambers
located at 100 Civic Center Drive, Newport Beach to introduce the project to the Planning
Commission. No action was taken at the study session;
WHEREAS, a study session was held on September 1, 2016, in the Council
Chambers located at 100 Civic Center Drive, Newport Beach to update the status of the
project to the Planning Commission and review the conclusions of the Draft EIR. No action
was taken at the study session;
WHEREAS, a public hearing was held on October 20, 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. Evidence, both
written and oral, was presented to, and considered by, the Planning Commission at this
public hearing;
WHEREAS, the Planning Commission adopted Resolution No. 2033 by a
unanimous vote of 7-0 recommending approval of the proposed project to the City
Council;
WHEREAS, on November 17, 2016, the Airport Land Use Commission (ALUC)
found the City of Newport Beach Museum House Residential Project to be consistent with
the Airport Environs Land Use Plan for John Wayne Airport, with the condition that written
documentation from the Federal Aviation Administration (FAA) be provided to ALUC and
the City Council verifying that the City's Police Department helipad was considered in the
FAA Determination of No Hazard to Air Navigation issued for the project;
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Ordinance No. 2016 -
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WHEREAS, a public hearing was held on November 29, 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. Evidence, both
written and oral, was presented to, and considered by, the City Council at this public
hearing;
WHEREAS, amendments to the General Plan and Zoning Code are legislative
acts and neither the NBMC nor State Planning Law set forth any required findings for
either approval or denial of such amendments;
WHEREAS, the proposed amendment to the PC -19 (San Joaquin Plaza) Zoning
District meets the intent and purpose for a PC as specified in NBMC Section 20.56.010
(Planned Community District Procedures, Purpose). The property is located in the
Newport Center area which includes a mixture of shopping, hotels, commercial support
uses, professional offices, and residential developments. The development plan and
standards are consistent with the surrounding development including the standards and
allowed uses of the adjoining North Newport Center Planned Community;
WHEREAS, the proposed amendment to the PC -19 (San Joaquin Plaza) Zoning
District would apply appropriate site and project specific setbacks, density, and height
limits to the project site given the site's urban location and all required parking is
provided onsite. The site is fully developed and does not support any natural resources
and all potential environmental impacts associated with the project are appropriately
addressed through standard building permit procedures and the mitigation measures
identified in the Final EIR;
WHEREAS, the proposed PC -19 (North Newport Center Planned Community)
amendment and zoning designation are consistent with the proposed General Plan
Amendment (GP2015-001) that changes the land use category from Private Institutional
(PI) to Multi -Unit Residential (RM -100) with a maximum development limit of 100 units;
WHEREAS, the future development of the property affected by the proposed
amendments will be consistent with the goals and policies of the Land Use Element of
the General Plan; and will be consistent with the purpose and intent of the proposed
San Joaquin Plaza (PC) Zoning District of the NBMC;
WHEREAS, NBMC Section 20.30.060(C)(3) (Height Limits and Exceptions,
Required Findings) requires findings to be made to adopt or amend a Planned
Community District with an increase in the height of the structure above the previous
base height limit:
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Ordinance No. 2016 -
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Finding:
A. The project applicant is providing additional project amenities beyond those that
are otherwise required. Examples of project amenities include, but are not limited
to:
i. Additional landscaped open space;
ii. Increased setback and open areas,
iii. Enhancement and protection of public views.
Facts in Support of Finding:
1. The building design provides a high level of design with open space, landscape,
residential amenities, and building setbacks that are similar or greater than those
required on adjoining properties. The main building provides lot coverage of
approximately 30 percent. The remaining portion of the site includes the
service/emergency access drive, the motor court and a variety of open and
useable plazas, landscaped/hardscape areas, planters, and a dog run.
2. The site design provides 32,261 square feet of outdoor common open space,
much of it landscaped area (not including the motor court) where a total of 7,500
square feet are required (75 square feet/dwelling unit) under the RM
development standards of the NBMC.
3. The main residential tower is set back a minimum of 36 feet from the front
property line (San Clemente Drive), 34 feet from the right property line (adjacent
to the office parking structure), 10 feet to the left property line (adjacent to the
OCMA administration building site) and 42 feet to the rear property line (adjacent
to the Villas at Fashion Island apartments). Parking level basement setbacks
occur largely below grade and are not immediately visible from the street
frontage along San Clemente Drive. The basement levels maintain a minimum
10 -foot setback except on the easterly side where the access road caisson wall
in located along the property line adjacent to the office parking structure.
4. The property abuts properties located in the North Newport Center Planned
Community to the north and east. The North Newport Center PC includes
setbacks from streets, which are typically 15 feet. No interior setbacks standards
are included and the placement of buildings and structures is reviewed during the
Plan Review process for new structures.
5. The adjoining property developed with the OCMA administration building is in the
San Joaquin Plaza Planned Community, which does not include required
setbacks. Building location and design is reviewed during the site development
review process. The existing OCMA administration building is set back
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Ordinance No. 2016 -
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approximately 30 feet from its easterly property line, that abuts the subject
property.
6. The project does not affect existing public views from designated viewpoints or
view corridors as shown in the view simulations and discussed in Chapter 5-01
(Aesthetics) of the Final EIR and does not detract from the character of the area.
The overall project height is generally consistent with the height limit and existing
building heights in the northerly section of Newport Center.
7. The subject property is located in the 300 -foot High Rise Height Area as depicted
on Map H-1 High Rise and Shoreline Height Limitation of the NBMC. Although
this height limit is applicable to nonresidential buildings, the type and design of a
structure, and not only the use, are important in determining if its bulk and scale
are appropriate for a particular location. In this case the residential high rise
building is well-designed and is consistent with the 300 -foot high rise height limit
and meets the intent of Land Use Element Policy LU 6.14.4 (Development
Scale), which suggests, but does not limit, that the greatest building mass and
height should be concentrated in the northeastern section of Newport Center
along San Joaquin Hills Road.
Finding:
B. The architectural design of the project provides visual interest through the use of
light and shadow, recessed planes, vertical elements, and varied roof planes;
Facts in Support of Finding:
1. The building's exterior is comprised predominantly of stone and masonry with
metal work details and glass windows. Massing offsets, variations of roofline,
varied textures, recesses, articulation, and design accents on the elevations are
integrated to enhance the building's architectural style.
2. The building facade is designed to be compatible with surrounding retail, office
and residential development in Newport Center. The architectural design
provides a significant amount of articulation to fit with the context of surrounding
buildings in the Newport Center area. Large scale features such as variation in
floor size, multistory bay windows, balconies and terraces help to reduce the
scale of the structure and to provide visual interest and variety. Mechanical
equipment and elevator overrides are screened from view.
Finding:
C. The increased height will not result in undesirable or abrupt scale changes or
relationships being created between the proposed structure(s) and existing
adjacent developments or public spaces. Where appropriate, the proposed
Ordinance No. 2016 -
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structure(s) provides a gradual transition to taller or shorter structures on abutting
properties, and
Fact in Support of Finding:
Although the building is taller than the structures in the immediate vicinity it is not
out of character with the structures in the northerly section of Newport Center
which includes a mix of building types and heights. There are six existing
buildings in the northern section of Newport Center that are greater than 200 feet
in height.
Finding:
D. The structure will have no more floor area than could have been achieved
without the approval of the height increase.
Fact in Support of Finding:
The proposed floor area for the project would conform to the dwelling unit and
gross floor area limit established through the amended PC -19 (San Joaquin
Plaza Planned Community Development Plan).
NOW THEREFORE, the City Council of the City of Newport Beach ordains as follows:
Section 1: The City Council has considered the recommendation of the
Planning Commission and has determined that modifications to the project made by the
City Council, if any, are not major changes that require referral back to the Planning
Commission for consideration and recommendation.
Section 2: The City Council of the City of Newport Beach hereby approves
Planned Community Development Plan Amendment No. 2015-001 as depicted in Exhibit
A, attached hereto and incorporated herein by reference, to change the San Joaquin Plaza
PC land use designation from Civic/Cultural/Professional/Office to Multi -Unit Residential
and revise the development standards to accommodate the proposed residential
development.
Section 3: The recitals provided in this ordinance are true and correct and are
incorporated into the operative part of this ordinance.
Section 4: 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
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Ordinance No. 2016 -
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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 or
more sections, subsections, sentences, clauses or phrases be declared invalid or
unconstitutional.
Section 5: The Museum House Project Final EIR (SCH No. 2016021023) was
prepared for the project in compliance with CEQA, the State CEQA Guidelines, and City
Council Policy K-3. By Resolution No. 2016-_, the City Council, having final approval
authority over the project, adopted and certified as complete and adequate the Museum
House Project Final EIR (SCH No. 2016021023) and approved "Mitigation Monitoring
and Reporting Program." Resolution No. 2016-_ is hereby incorporated by reference.
Section 6: Except as expressly modified in this ordinance, all other Sections,
Subsections, terms, clauses and phrases set forth in the NBMC shall remain unchanged
and shall be in full force and effect
Section 7: 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.
This ordinance was introduced at a regular meeting of the City Council of the City
of Newport Beach held on the 29th day of November 2016, and adopted on the 13th
day of December, 2016, by the following vote, to -wit:
AYES, COUNCILMEMBERS
NOES, COUNCILMEMBERS
ABSENT COUNCILMEMBERS
DIANE B. DIXON, MAYOR
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Ordinance No. 2016
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ATTEST:
LEILANI I. BROWN, CITY CLERK
APPROVED AS TO FORM:
CITY ATT Y'S OFFICE
AARON C. HARP, CITY ATTORNEY
Exhibit A: PC -19 (San Joaquin Plaza Planned Community Development Pian)
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Ordinance No. 2016 -
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Exhibit "A"
PC -19 (San Joaquin Plaza Planned Community Development Plan)
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San Joaquin Plaza
(PC 19 Amendment)
Planned Community Development Plan
Land Uses, Development Standards &
Procedures
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Land Uses, Development Standards & Procedures
San Joaquin Plaza (PC 19 Amendment)
Planned Community Development Plan
Land Uses, Development Standards & Procedures
Table of Contents
I. Introduction
A. Introduction and Purpose of Development Plan
B. San Joaquin Plaza Statistical Analysis
C. Planned Community Area Location Map
Chapter 1(PC Subarea 1)
I. Relationship to Other Regulations
A. Relationship to the Municipal Code
II. Land Use and Development Regulations
A. Permitted Uses
B. Development Limits
C. Transfer of Development
III. Site Development Standards
A. Permitted Height of Structures
B. Standards for Allowable Heights
C. Rooftop Appurtenances
D. Site Walls, Retaining Walls, Garage Walls and Mechanical Screens
E. Site Setbacks
F. Floor Area Ratio
G. Lot Coverage
H. Parking
I. Landscaping
J. Lighting
K. Signs
L. Residential Open Space Requirements
M. LEED Certification
N. Construction and Utility Requirements
IV. Definitions
V Site Development Review
San Joaquin Plaza (PC 19 Amendment) Planned Community Development Plan 8 August 2016 1
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Land Uses, Development Standards & Procedures
Chapter 2 (PC Subarea 2)
I. San Joaquin Plaza Planned Community District Regulations
A. General Notes
B. Permitted Uses
C. Building Location
D. Building Height
E. Parking
F. Landscaping
G. Loading Areas
H. Refuse Collection Areas
I. Telephone and Electrical Service
J. Signs
San Joaquin Plaza (PC 19 Amendment) Planned Community Development Plan 8 August 2016 2
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Land Uses, Development Standards & Procedures
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San Joaquin Plaza (PC 19 Amendment) Planned Community Development Plan 8 August 2016 3
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San Joaquin Plaza (PC 19 Amendment) Planned Community Development Plan 8 August 2016 3
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Land Uses, Development Standards & Procedures
San Joaquin Plaza PC Development Plan
Amendment No. 8
I. Introduction
A. Introduction and Purpose of Development Plan
The San Joaquin Plaza Planned Community ("PC") District (PC -19) for the City of Newport Beach
is a part of the Newport Center Development in conformance with the Newport Beach General
Plan. The General Plan identifies the goal of creating a successful mixed-use district that
integrates economic and commercial centers serving the needs of Newport Beach residents and
the sub -region, with expanded opportunities for residential development within Newport
Center.
As shown on Figure 1, the San Joaquin Plaza PC District is located in the north end of Newport
Center where the concentration of building height and mass is greatest. It is generally bounded
by Santa Cruz Drive on the east, San Clemente Drive on the south, and Santa Barbara Drive to
the west. Surrounding uses include an existing parking structure to the east office buildings to
the west, residential apartments to the north and office and residential apartments to the south.
The Fashion Island regional mall is approximately % mile to the south. The purpose of the San
Joaquin Plaza PC District is to ensure consistency with General Plan policies related to
development scale in Newport Center and expectations for high quality development.
This San Joaquin Plaza PC Development Plan is divided into two chapters. Chapter 1 provides
land use and development standards for PC Subarea 1 (850 San Clemente Drive) only. Chapter 1
supersedes the Existing PC Development Plan with respect to PC Subarea 1. The land use and
development standards in the Existing PC Development Plan shall not apply to PC Subarea 1.
Chapter 2 of this San Joaquin Plaza PC Development Plan provides land use and development
standards for PC Subarea 2 (856 San Clemente Drive) only. Chapter 2 consists of the entire
Existing PC Development Plan except Section I (Statistical Analysis), which shall be superseded by
Section I (B) (Son Joaquin Plaza Statistical Analysis) below. Section II (General Notes) and Section
III (Civic, Cultural, Business and Professional Offices) of the Existing PC Development Plan, which
set forth land use and development standards, shall apply to PC Subarea 2 only, and not PC
Subarea 1.
San Joaquin Plaza (PC 19 Amendment) Planned Community Development Plan 8 August 2016 4
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Land Uses, Development Standards & Procedures
B. San Joaquin Plaza Statistical Analysis
The San Joaquin Plaza Planned Community area consists of two distinct subareas:
PC Subarea 1(850 San Clemente Drive)
a. Site Area: 1.99 acres
b. Existing Use: Orange County Museum of Art Exhibition Space (23,632 Square
Feet)
PC Subarea 2 (856 San Clemente Drive)
a. Site Area: 0.93 acre
Existing Use: Orange County Museum of Art Galleries
Administrative Offices & Storage (13,670 Square Feet)
San Joaquin Plaza (PC 19 Amendment) Planned Community Development Plan 8 August 2016
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Land Uses, Development Standards & Procedures
C. San Joaquin Plaza Planned Community Area Location Map
Figure -1— San Joaquin Plaza
SAN CEMENTft
' OR.
MPC Subarea 1 (850 San Clemente Drive)
ElPC Subarea 2 (856 San Clemente Drive)
FNot Included in Planned Community
San Joaquin Plaza (PC 19 Amendment) Planned Community Development Plan 8 August 2016 6
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Land Uses, Development Standards & Procedures
Chapter 1(PC Subarea 11
I. Relationship to Other Regulations
A. Relationship to the Municipal Code
Whenever the development regulations of this plan conflict with the regulations of the Newport
Beach Municipal Code, the regulations contained herein shall prevail. The Municipal Code shall
regulate this development whenever regulations are not provided within these district
regulations. All words and phrases used in this San Joaquin Plaza PC Development Plan shall have
the same meaning and definition as used in the City of Newport Beach Municipal Code unless
defined differently in Section V — Definitions.
San Joaquin Plaza (PC 19 Amendment) Planned Community Development Plan 8 August 2016 7
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Land Uses, Development Standards & Procedures
II. Land Use and Development Regulations — PC Sub Area 1
A. Permitted Uses
1. General
Specific uses are permitted consistent with the definitions provided in Section V of this
Development Plan. Uses determined to be accessory or ancillary to permitted uses, or residential
support uses to permitted uses are also permitted. The Community Development Director may
determine other uses not specifically listed herein, provided they are consistent with the Multi -
Residential (RM) Land Use designation.
2. San Joaquin Plaza Subarea 1
a. Residential
i. 100 residential units
b. Uses that are accessory or ancillary to the permitted residential uses,
including residential support uses, are also permitted. These include, but are
not limited to, the following:
i. Club Rooms
ii. Lobby
iii. Fitness and Spa
iv. Business Services and Building Services
v. Rooftop lounge
vi. Wine Storage
vii. Catering kitchen
1. Resident serving food and beverage services
viii. Laundry
ix. Conference Rooms
x. Similar resident serving uses
c. Structured Parking, Garage and Facilities
B. Development Limits
The development limits in this Development Plan are consistent with those established by the
General Plan.
Development limits may be modified through the approval of a Transfer of Development Rights.
1. San Joaquin Plaza Subarea 1(850 San Clemente Drive)
Up to 100 residential units are permitted within San Joaquin Plaza Subarea 1. Residential uses
are measured on a per unit basis and not by gross floor area. Ancillary uses, such as club rooms,
San Joaquin Plaza (PC 19 Amendment) Planned Community Development Plan 8 August 2016 8
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Land Uses, Development Standards & Procedures
fitness, lobbies, business services, amenities and building services shall not require parking as
they support the primary operations of the residential community and its residents.
C. Transfer of Development Rights
The transfer of development rights among sub -areas of this Planned Community and to/from
other areas in the Newport Center/Fashion Island District identified in the General Plan is
allowed in accordance with Policy LU 6.14.3 of the General Plan and this Planned Community
Development Plan. The transfer of development rights shall be approved, as specified in the
General Plan
San Joaquin Plaza (PC 19 Amendment) Planned Community Development Plan 8 August 2016 9
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Land Uses, Development Standards & Procedures
III. Site Development Standards
A. Permitted Height of Structures
1. San Joaquin Plaza Subarea 1
B. Standards for Allowable Heights
The maximum height of all structures shall be 295 feet as measured from finished grade to the
roof of the highest appurtenance. Finish grade is defined in Graphic 1, as elevation of main
building entry point in relation to mean sea level.
C. Rooftop Appurtenances
Rooftop appurtenances are permitted. Rooftop appurtenances shall demonstrate compliance
with conditions related to the AELUP for the John Wayne Airport, consistent with Section
III(A)(1)(b). Rooftop appurtenances must be screened from view; the height of rooftop
appurtenances shall not exceed the height of the screening. Supports for window washing
equipment are permitted, and are not required to be screened from view. No setbacks are
required for any rooftop appurtenances
San Joaquin Plaza (PC 19 Amendment) Planned Community Development Plan 8 August 2016 10
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Land Uses, Development Standards & Procedures
Roof of fthest Occupied Space
J
Building Entry
poo nt
_ _ _ _ _ Finished Grade
i
Note: In no instance shalt any part of Che budding, including rooftop appurtenances v architectural fe.xures penetrate the FAA
(Part 77 t mag=n2ry obstructon surface !or Jahn Wayne iurrort
Graphic 1— Example of Building Height and Rooftop Appurtenances
San Joaquin Plaza (PC 19 Amendment) Planned Community Development Plan 8 August 2016 11
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Land Uses, Development Standards & Procedures
D. Site Walls, Retaining Walls, Garage Walls and Mechanical Screens
a. Site Walls
i. Site walls will not exceed 8'-0" from finish grade.
b. Retaining Walls
i. Interior: The height of a retaining wall that faces interior to the
project is not to exceed 30'-0" from finish grade.
ii. Exterior: Retaining walls that face exterior to adjacent properties
and San Clemente Drive at property lines, are limited in height to 8'-0"
from finish grade not including handrail conditions that may be required
above these walls. These handrail requirements may be formed by the
retaining wall.
c. Garage Walls that are exposed will be treated as architectural building fagade.
d. Mechanical Screens will be allowed to be of sufficient height to provided coverage
of equipment. Required grills, louvers, vents and other functional requirements of
building equipment will to the extent possible be incorporated into the building
architecture.
E. Site Setbacks
a. San Clemente Drive 15'-0"
b. East Property Line (Adjacent to Parking Garage) 5'-0"
c. North Property Line (Adjacent to San Joaquin Apartments) 5'-0"
d. West Property Line 5'-0"
F. Floor Area Ratio
a. Allowable Floor Area for Site is 4.5:1 FAR
b. Lot Area 86,924 Square Feet
c. Allowable Area 391,000 Square Feet
G. Lot Coverage
Lot coverage is the percentage of buildable site area.
a. Lot Area 86,924 Square Feet
b. Allowable Lot Coverage is 90% 78,430 Square Feet
H. Parking
Residential parking is based on unit count with each unit receiving 2 parking spaces. Residential
guest parking is also based on unit count with .5 spaces per unit. Accessory, ancillary, and
support uses for residential developments shall not be included in the calculation of required
parking.
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Land Uses, Development Standards & Procedures
Valet parking is allowed subject to the approval of a valet plan by the City Traffic Engineer and
Community Development Director.
I. Landscaping
Refer to City of Newport Beach Municipal Code.
J. Lighting
Refer to City of Newport Beach Zoning Code
K. Signs
1. General Sign Standards
A comprehensive sign program may be prepared if the applicant wishes to deviate from the sign
standards identified herein. Comprehensive sign programs shall be submitted for review and
consideration in accordance with the provisions of the Municipal Code.
2. Restricted Sign Types
Signs visible from public right-of-ways are subject to the following restrictions:
a. No rotating, flashing, blinking, or signing with animation shall be permitted on a
permanent basis.
b. No signs shall be permitted which imitate or resemble official traffic signs or
signals.
C. No wind signs or audible signs are permitted.
Animated signs visible from public streets are not allowed unless otherwise permitted by the
Municipal Code.
3. Sign Standards San Joaquin Plaza Subarea 1
Primary building address numbers shall be visible from the street (and/or pedestrian walkways in
the case of necessity), and be located on the building so that they are visible from adjacent
frontage roads and designated parking areas. Secondary address signs may be located where
appropriate for on-site orientation and safety. All address signs shall have a consistent color,
design, and material for any given building. A single letter style is recommended.
San Joaquin Plaza (PC 19 Amendment) Planned Community Development Plan 8 August 2016 13
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Land Uses, Development Standards & Procedures
Table 2 — Sign Standards for San Joaquin Plaza Subarea 1
Sign
Maximum
Maximum
Type
yp
Description
Location
Number
Maximum Sign Size
Letter / Logo
Height
Signs mounted on
Determined by
landscape walls
San Joaquin
project name;
A
(includes ground
Plaza at San
4
letter/logo height
36 inches
mounted signs in
Clemente
not to exceed 36
front of landscaping
project entry
inches
and landscape walls)
Determined by
On building
name of project;
elevation,
letter/logo height
Primary 24
B
Building Sign
awning or
2 primary and 4
not to exceed:
inches
parking
secondary
primary 24
Secondary
structure
inches, Secondary
16 inches
16 inches
4 (additional
address signs
24 inches or
On building
may be located
as required
C
Building Address
elevation
where
24 inches high
by Fire
appropriate for
on-site
Department
orientation)
As required
by Fire
Entry to
As appropriate
Department
D
Advisory Signs
for safety and
6 feet high
or Building
service
orientation
Code for
safety
purposes
San Joaquin Plaza (PC 19 Amendment) Planned Community Development Plan 8 August 2016 14
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Land Uses, Development Standards & Procedures
4. TemporarySigns
Temporary signs are permitted. See Definitions.
L Residential Open Space Requirements
The following open space standards shall apply to residential development projects:
1. Common Outdoor Open Space
The project shall provide common outdoor open space either at grade, podium, common level
within the building, or roof level. Common outdoor open space areas shall have a minimum
horizontal dimension of 30 feet and may contain active and/or passive areas and a combination
of hardscape and landscape features, but a minimum of 10 percent of the common outdoor
open space must be landscaped. All common outdoor open space must be accessible to all
residents. Projects shall provide a minimum of 5 percent common outdoor open space based on
the residential lot area.
2. Common Indoor Open Space
The project shall provide at least one community room of at least 500 square feet for use by all
residents of the project. The area should be located adjacent to, and accessible from, common
access point. This area may contain active or passive recreational facilities or meeting space, and
must be accessible through a common corridor.
3. Private Open Space
At least 50 percent of all dwelling units shall provide private open space, on a balcony, patio, or
roof terrace. Private open space shall be a minimum area of 30 square feet and an average
horizontal dimension of 6 feet. Balconies should be proportionately distributed throughout the
project in relationship to floor levels and sizes of units.
M. LEED Certification
The Building will be designed to meet the criteria of LEED Certification as based on LEED's
prototype points and scorecard rating system.
N. Construction and Utility Requirements
1. Archaeological/Paleontological
Grading of the site is subject to the provisions of the City Council Policies K-4 & K-5 regarding
archaeological and paleontological resources.
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Land Uses, Development Standards & Procedures
2. Building Codes
Construction shall comply with applicable provisions of the California Building Code and the
various other mechanical, electrical and plumbing codes related thereto as adopted by the
NBMC.
3. Grading
Grading and excavation of the development area shall be conducted and undertaken in a
manner both consistent with grading manual standards and ordinances of the City of Newport
Beach and in accordance with a grading and excavation plan approved by the City of Newport
Beach Building Division.
4. Telephone, Gas and Electrical Service
All "on-site" gas lines, electrical lines and telephone lines shall be placed underground. Unless
prohibited by the utility company, transformer or terminal equipment shall be visually screened
from view from streets and adjacent properties.
5. Sewage Service
All new and upgrade on and off-site sewer lines shall be designed in accordance with the Utilities
Manager's approval.
6. Storm Water Management
The project shall adhere to the Water Quality Management Plan (WQMP) approved in
conjunction with the issuance of building permits. Drainage and water quality assurance
measures will be implemented as per the City Public Works and Municipal Separate Storm Sewer
System (MS4) requirements. Development of the property will be undertaken in accordance with
the flood protection policies of the City.
7. Water service
Water service to the site will be provided by the City of Newport Beach and is subject to
applicable regulations, permits and fees as prescribed by the City. The project shall provide the
infrastructure for Fire Protection Water Service and Domestic water. Each dwelling unit shall be
served by its own individual water meter in accordance with the Public Works Department
unless a waiver is approved by the Public Works Department.
San Joaquin Plaza (PC 19 Amendment) Planned Community Development Plan 8 August 2016 16
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Land Uses, Development Standards & Procedures
IV. Definitions
All words and phrases used in this North San Joaquin Plaza PC shall have the same meaning and
definition as used in the City of Newport Beach Municipal Code unless defined differently in this
section.
Advisory Sign: Any sign that contains directional or safety information; does not contain
advertisements.
Audible Signs: Any sign that uses equipment to communicate a message with sound or music.
Building Elevation: The exterior wall surface formed by one (1) side of the building.
Building Height: Building height is measured from the roof of the highest occupied space to the
exterior finished grade. If the building is on a sloping surface, the height measurement is taken
from the building entrance. Exceptions include but are not limited to below grade parking
structure entrances, motor courts, and retaining walls.
Floor Area, Gross: The gross floor area for all other permitted uses is the total enclosed area of all
floors of a building measured to the outside face of the structural members in exterior walls,
including halls, stairways, elevator shafts at each floor level, service and mechanical equipment
rooms and basement or attic areas having a height of more than seven feet. Excluded are
covered porches, space below building entry or basement, parking, walkways and loading docks,
service tunnels, and mechanical shafts. Mechanical spaces, which are inaccessible to tenants, are
not counted as square footage.
Monument Sign: Any sign that is supported by its own structure and is not part of or attached to
any building.
Parking Structure: Structures containing more than one story principally dedicated to parking.
Parking structures may contain accessory, ancillary and resident support uses.
Podium Level: A superposed terrace conforming to a building's plan, a continuous pedestal; a
level of vertical segregation linking separate areas.
Project Identification Sign: A free-standing (single or double faced) monument sign containing the
project name.
Residential: An area or areas within a structure on a parcel that contains separate or
independent living facilities for one or more persons, with area or equipment for sleeping,
sanitation or food preparation. Individual residential units may be located on multiple floors and
need not be located in contiguous spaces.
Rooftop Appurtenance: Rooftop appurtenances include, but are not limited to, mechanical
equipment, stairwell and elevator shaft housing, antennae, window washing equipment, and
wireless communication facilities. See Graphic 1 on page 34.
Sign: Any media, including their structure and component parts which are used or intended to be
used out-of-doors to communicate information to the public.
Sign Area: The area enclosed by a rectangle drawn around the working, numbers or images
composing the sign.
Sign Face: The physical plane and/or surface upon which the working or images are applied.
Sign Letter: The individual symbols of the alphabet used in forming the words of a message.
San Joaquin Plaza (PC 19 Amendment) Planned Community Development Plan 8 August 2016 17
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Land Uses, Development Standards & Procedures
Support Uses: Uses within residential developments and parking structures designed, oriented,
and intended to primarily serve building occupants. This includes uses such as dry cleaners,
coffee vendors, and sundry shops.
Temporary Sign: Any sign, banner, pennant, valance, or advertising display constructed of cloth,
canvas, plywood, light fabric, cardboard, wallboard or other light materials, with or without
frames, intended to be displayed for a limited period of time.
Wind Sign: A series of similar banners or objects of plastic or other light material more than 2
inches in diameter which are fastened together at intervals by wire, rope, cord, string or by any
other means, designed to move and attract attention upon being subjected to pressure by wind
or breeze.
San Joaquin Plaza (PC 19 Amendment) Planned Community Development Plan 8 August 2016 18
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Land Uses, Development Standards & Procedures
V. Site Development Review
The purpose of the Site Development Review (SDR) process is to ensure that any new
development proposal within Subarea 1 is consistent with the goals and policies of the General
Plan and the provisions of the San Joaquin Plaza Planned Community Development Plan. Prior to
the issuance of building permits for development within Subarea 1, a SDR application shall be
required in accordance with Section 20.52.080 (Site Development Reviews) of the Newport
Beach Municipal Code. The Subarea 1 SDR shall be part of this Planned Community
Development Plan and shall be reviewed concurrently with the Planned Community
Development Plan. The submitted site pans and elevations shall be part of this application.
San Joaquin Plaza (PC 19 Amendment) Planned Community Development Plan 8 August 2016 19
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Land Uses, Development Standards & Procedures
Chapter 2 (PC Subarea 21
I. San Joaquin Plaza Planned Community District Regulations
Chapter 2 of this San Joaquin Plaza PC Development Plan provides land use and development
standards for PC Subarea 2 (856 San Clemente Drive) only. Chapter 2 consists of the entire
Existing PC Development Plan except Section I (Statistical Analysis), which shall be superseded by
Section I (B) (San Joaquin Plaza Statistical Analysis) above. Section II (General Notes) and Section
III (Civic, Cultural, Business and Professional Offices) of the Existing PC Development Plan, which
set forth land use and development standards, shall apply to PC Subarea 2 only, and not PC
Subarea 1.
A. GENERAL NOTES
1. Water within the Planned Community area will be furnished by the City of Newport
Beach.
2. Sewage disposal facilities within the Planned Community will be provided by Orange
County Sanitation District No. S.
3. The subject property is within the City of Newport Beach. The Developer will provide the
necessary flood protection facilities under the jurisdiction of the City of Newport Beach.
4. Grading and erosion control provisions shall be carried out on all areas of the Planned
Community in a manner meeting the approval of the Community Development Director.
S. Except as otherwise stated in this Ordinance, the requirements of the Newport Beach
Zoning Code shall apply.
6. The contents of this supplemental text notwithstanding, no construction shall be
proposed within the boundaries of this Planned Community District except that which
shall comply with all provisions of Newport Beach's Uniform Building Code and the
various mechanical codes related thereto.
7. Parking lot lighting shall be subject to the review and approval of the Community
Development Director. Parking lot lighting shall be designed in a manner so as to
minimize impacts on adjacent residential areas.
8. All mechanical appurtenances on building roof tops and utility vaults shall be screened
from street level view in a manner meeting the approval of the Community Development
Director.
9. Prior to the issuance of grading permits, the site shall be examined to determine the
existence and extent of archaeological and paleontological resources in accordance with
adopted City polices.
10. In the event that any non -office facility was to be eliminated from the project, the
eliminated facility would be replaced with the equivalent amount of office space.
11. That a pedestrian and bicycle trail system be reviewed and approved by the Community
Development Director.
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Land Uses, Development Standards & Procedures
San Joaquin Plaza — Planned Community District Regulations 512/4/07
II. CIVIC, CULTURAL, BUSINESS AND PROFESSIONAL OFFICES A. INTENT
The intent of this district is to permit the location of a combination of civic, cultural, business and
professional office uses, and support commercial activities engaged in the sale of products to the
general public.
B. PERMITTED USES
The following shall be permitted:
1. Retail sales and service of a convenience nature.
2. Administrative and professional offices.
3. Restaurants, bars and theater/nightclubs. Subject to Use Permit.
4. Institutional, financial and governmental facilities.
5. Civic, cultural, commercial recreational and recreational facilities.
6. Parking lots, structures and facilities.
C. BUILDING LOCATION
1. All buildings shall be located in substantial conformance with the approved site plan.
D. BUILDING HEIGHT
1. All buildings and appurtenant structures shall be limited to a maximum height of sixty-
five (65) feet.
E. PARKING
1. Adequate off-street parking shall be provided to accommodate all parking needs for the
site. The intent is to eliminate the need for any on -street parking.
2. Required off-street parking shall be provided on the site of the use served, or on a
common parking area in accordance with the off-street parking requirements of City of
Newport Beach Planning and Zoning Ordinance.
3. Parking for the museum shall be based on 3.5 spaces/1,000 square feet of gross floor
area.
F. LANDSCAPING
1. Detailed landscaping and irrigation plans, prepared by a licensed landscape architect,
licensed landscaping contractor, or architect shall be reviewed by the Director of Parks,
Beaches and Recreation.
San Joaquin Plaza (PC 19 Amendment) Planned Community Development Plan 8 August 2016 21
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Land Uses, Development Standards & Procedures
2. All landscaping referred to in this section shall be maintained in a neat and orderly
fashion.
a. Screening -Areas used for parking shall be screened from view or have the view
interrupted by landscaping, and/or fencing from access streets, and adjacent
properties.
b. Plant materials used for screening purposes shall consist of lineal or grouped
masses of shrubs and/or trees.
G. LOADING AREAS
Street side loading shall be allowed providing the loading dock is screened from view
from adjacent streets.
H. REFUSE COLLECTION AREAS
1. All outdoor refuse collection areas shall be visually screened from access streets, and
adjacent property. Said screening shall form a complete opaque screen.
2. No refuse collection area shall be permitted between a frontage street and the building
line.
I. TELEPHONE AND ELECTRICAL SERVICE
All "on site" electrical lines (excluding transmission lines) and telephone lines shall be
placed underground. Unless prohibited by the utility company, transformer or terminal
equipment shall be visually screened from view from streets and adjacent properties.
J. SIGNS
1. Building Address Sign
a. Building address numerals shall be a maximum of two (2) feet in height and shall
be consistent with the building identification signing.
b. Building address number shall face the street (and/or pedestrian walkways in the
case of necessity), and be located on the building so that they are visible from
adjacent frontage roads and designated parking areas.
2. Project/Building Identification Sign
a. Project and/or building identification signs are permitted at major entry access
drives from adjacent frontage streets, and adjacent to project intersection
corners provided that they comply with the City of Newport Beach sight distance
requirement 110-L.
b. The identification signage is permitted in the form of a free-standing (single or
double faced) monument sign. The sign copy shall be restricted to the project or
building name and street address. Individual letter heights shall not exceed
eighteen (18) inches. The monument sign shall be limited to S feet in height and
12 feet in width as depicted on the attached sign drawings.
San Joaquin Plaza (PC 19 Amendment) Planned Community Development Plan 8 August 2016 22
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Land Uses, Development Standards & Procedures
Project/Tenant Identification Signs
a. Project/tenant identification signs are permitted at major entry access drives
from adjacent frontage streets, provided that they comply with the City of
Newport Beach sight distance requirement 110-L.
b. The project/tenant identification signage is permitted in the form of a free
standing (single or double faced) monument sign and may contain the project
identification and a maximum of two tenant names. The tenant selection will be
determined by the property owner or their designated management company.
The tenant name shall not exceed 5 % inches in height and the monument sign
shall be limited to 6 feet in height and 12 feet in width as depicted on the
attached sign drawings.
4. Tenant Identification Signs
a. Tenant identification signs are permitted and are divided into two (2) categories:
b. PrimaryTenant -Secondary Tenant identification signs are to be wall -mounted
graphics, consisting of individually fabricated letters. Box or "can" signs are not
permitted. The maximum number of primary tenant signs permitted on any one
building elevation is two (2).
c. Each secondary tenant shall be limited to one (1) identification sign.
d. The maximum letter height of a primary tenant sign shall not exceed twenty-four
(24) inches. The maximum letter height of a secondary tenant sign shall not
exceed sixteen (16) inches.
e. Sign copy shall be restricted to identification of the person, firm, company or
corporation operating the use conducted on the site.
5. General Sign Standards
a. Signs (to include all those visible from the exterior of any building) may be lighted
but no sign or any other contrivance shall be devised or constructed so as to
rotate, gyrate, blink or move in any animated fashion.
6. Temporary Signs
a. The following guidelines are intended to produce a consistent sign design for
temporary signs within Newport Center. All temporary signs require the
approvals of the City of Newport Beach and The Irvine Company.
b. Temporary signs are to identify the future site, project or facility under
development on individual project sites.
c. Information on this sign is limited to:
i. For Sale, For Lease, Future Home of, Building/Project Name, etc. - Type
or Name of Development - Type and Area of Space Available - Major
Tenant or Developer - Financial Institution - General Contractor -
Architect - Leasing Agent - Occupancy Date - Phone Number - The
Irvine Company or Project Name and Logo
ii. Location: One temporary sign is permitted on site for each frontage street.
These signs may be single or double-faced and parallel or perpendicular to
the roadway.
iii. Longevity: Signs can exist from the time of lease or sale of the parcel until
construction and/or leasing of the facility is complete.
San Joaquin Plaza (PC 19 Amendment) Planned Community Development Plan 8 August 2016 23
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Attachment 6
Ordinance No. 2016-24
(DA2016-001)
5-37
ORDINANCE NO. 2016 -
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
NEWPORT BEACH, CALIFORNIA, APPROVING
DEVELOPMENT AGREEMENT NO. DA2016-001 FOR THE
100 -UNIT MUSEUM HOUSE MULTI -FAMILY RESIDENTIAL
PROJECT LOCATED AT 850 SAN CLEMENTE DRIVE
(PA2015-152)
WHEREAS, an application was filed by Related California Urban Housing, LLC
(Applicant) with respect to property located at 850 San Clemente Drive, and legally
described as Parcel 2 of the Parcel Map, in the City of Newport Beach, County of
Orange (County), State of California, as shown on a map recorded in Book 81, Pages 8
and 9 of Parcel Maps, in the office of the County Recorder of said County;
WHEREAS, the project includes demolition of the existing 23,632 -square -foot
Orange County Museum of Art (OCMA) building to accommodate the development of a
25 -story, 100 -unit residential condominium building with two levels of subterranean
parking. The Applicant requests the following approvals from the City of Newport Beach
(City):
• General Plan Amendment (GPA) — To amend Anomaly No. 49 to remove the
property and to reduce the allowed development from 45,208 square feet to
21,576 square feet (Table LU2 and associated figures), and to change the land
use designation for the property from Private Institutional (PI) to Multi -Unit
Residential (RM -100) with a maximum development limit of 100 units.
• Planned Community Development Plan Amendment (Zoning) — To change
the San Joaquin Plaza Planned Community (PC) land use designation from
Civic/Cultural/Professional/Office to Multi -Unit Residential. The PC amendment
also includes new residential development standards including a 295 -foot height
limit measured from finished grade.
• Tentative Vesting Tract Map — To allow the 100 individual dwelling units to be
sold separately as condominiums.
• Site Development Review — To ensure site development is in accordance with
the applicable planned community and zoning code development standards and
regulations pursuant to Newport Beach Municipal Code (NBMC) Section
20.52.080 (Site Development Reviews).
• Traffic Study — To study potential traffic impacts pursuant to the City of
Newport Beach Traffic Phasing Ordinance.
• Development Agreement — To voluntarily enter into a Development
Agreement to provide surety and consistency in the future development of the
Applicant's project.
• Environmental Impact Report (EIR) — To address reasonably foreseeable
environmental impacts resulting from the legislative and project specific
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Ordinance No. 2016 -
Page 2 of
discretionary approvals pursuant to the California Environmental Quality Act
(CEQA).
• Revoke Use Permit - To revoke Use Permit No. UP2005-017 (PA2005-086),
which allows beer and wine sales at the museum.
• Revoke Modification Permit - To revoke Modification Permit No. MD2004-059
(PA2004-184), which allows flagpoles/signage beyond that allowed by the
NBMC;
WHEREAS, the subject property is located within the PC -19 (San Joaquin Plaza)
Zoning District and the General Plan Land Use Element category is PI (Private
Institutional);
WHEREAS, the subject property is not located within the coastal zone;
WHEREAS, a study session was held on April 7, 2016, in the Council Chambers
located at 100 Civic Center Drive, Newport Beach to introduce the project to the Planning
Commission. No action was taken at the study session;
WHEREAS, a study session was held on September 1, 2016, in the Council
Chambers located at 100 Civic Center Drive, Newport Beach to update the status of the
project to the Planning Commission and review the conclusions of the Draft EIR. No action
was taken at the study session;
WHEREAS, a public hearing was held on October 20, 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. Evidence, both
written and oral, was presented to, and considered by, the Planning Commission at this
public hearing;
WHEREAS, the Planning Commission adopted Resolution No. 2033 by a
unanimous vote of 7-0 recommending approval of the proposed project to the City Council;
WHEREAS, a public hearing was held on November 29, 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. Evidence, both written and oral, was presented to, and considered by,
the City Council at this public hearing;
WHEREAS, the City Council adopted City Council Resolution No. 2016 -
approving General Plan Amendment No. GP2015-001 to amend Anomaly No. 49 to
5-39
Ordinance No. 2016 -
Page 3 of _
remove the property and to reduce the allowed development from 45,208 square feet to
21,576 square feet (Table LU2 and associated figures), and to change the land use
designation for the property from Private Institutional (PI) to Multi -Unit Residential (RM -
100) with a maximum development limit of 100 units;
WHEREAS, the City Council adopted Ordinance No. 2016-_ to change the San
Joaquin Plaza Planned Community (PC) land use designation from
Civic/Cultural/Professional/Office to Multi -Unit Residential. The PC amendment also
includes new residential development standards including a 295 -foot height limit
measured from finished grade;
WHEREAS, a development agreement is requested by the applicant as the
project would add more than 50 new residential dwelling units within Statistical Area L1
(Newport Center);
WHEREAS, the proposed project is consistent with the goals and policies of the
Newport Beach General Plan. The City Council concurs with the conclusion of the
consistency analysis of the proposed project with these goals and policies provided in
the Museum Residential Project Final EIR (SCH No. 2016021023); and
WHEREAS, the Development Agreement includes all the mandatory elements
for consideration and public benefits that are appropriate to support conveying the
vested development rights consistent with the General Plan, NBMC Chapter 15.45, and
Government Code Sections 65864 et. seq.
NOW, THEREFORE, the City Council of the City of Newport Beach ordains as
follows:
Section 1: The City Council has considered the recommendation of the Planning
Commission and has determined that modifications to the project made by the City
Council, if any, are not major changes that require referral back to the Planning
Commission for consideration and recommendation.
Section 2: The City Council of the City of Newport Beach hereby approves
Development Agreement No. DA2016-001, as set forth in Exhibit "A," which is attached
hereto and incorporated herein by reference.
Section 3: The recitals provided in this ordinance are true and correct and are
incorporated into the operative part of this ordinance.
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Ordinance No. 2016 -
Page 4 of
Section 4: 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 or more sections, subsections, sentences, clauses or phrases be declared invalid
or unconstitutional.
Section 5: The Museum House Project Final EIR (SCH No. 2016021023) was
prepared for the project in compliance with CEQA, the State CEQA Guidelines, and City
Council Policy K-3. By Resolution No. 2016-_, the City Council, having final approval
authority over the project, adopted and certified as complete and adequate the Museum
House Project Final Environmental Impact Report (SCH No. 2016021023) and adopted
"Mitigation Monitoring and Reporting Program." Resolution No. 2016-_ is hereby
incorporated by reference.
Section 6: 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.
This ordinance was introduced at a regular meeting of the City Council of the City
of Newport Beach held on the 29th day of November 2016, and adopted on the 13th day
of December, 2016, by the following vote, to -wit:
AYES, COUNCILMEMBERS
NOES, COUNCILMEMBERS
ABSENT COUNCILMEMBERS
DIANE B. DIXON, MAYOR
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Ordinance No. 2015 -
Page 5 of
ATTEST:
LEILANI I. BROWN, CITY CLERK
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
14cl -- (.(-r)
AARON C. HARP. CITY ATTORNEY
Exhibit A: Development Agreement
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Ordinance No. 2016 -
Page 6 of _
EXHIBIT "A"
DEVELOPMENT AGREEMENT
5-43
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 Agreement 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.
111 *104 IM 905 10101 Iffix" 11-1104 Old I oleo N
between
and
OCMA URBAN HOUSING, LLC
concerning
850 & 856 SAN CLEMENTE DRIVE
-1-
5-44
DEVELOPMENT AGREEMENT
(Pursuant to Newport Beach Municipal Code Chapter 15.45 and California Government
Code Sections 65864-65869.5)
This DEVELOPMENT AGREEMENT ("Agreement") is dated for reference purposes as
of the —day of , 2016 ("Agreement Date"), and is being entered into by and between the
CITY OF NEWPORT BEACH ("City") and OCMA URBAN HOUSING, LLC ("Developer").
City and Developer are sometimes collectively referred to in this Agreement as the "Parties" and
individually as a "Party."
RECITALS
A. Developer is in the process of purchasing that certain real property located in the
City of Newport Beach, County of Orange, State of California commonly referred to as the 1.99 -
acre Museum House project site, located at 850 San Clemente Drive (APN # 442-261-05), and
generally bounded by Santa Cruz Drive on the east, San Clemente Drive on the south, and Santa
Barbara Drive to the west ("Property"). As of the Agreement Date, the Property is owned by the
Orange County Museum of Art ("OCMA"), a California nonprofit public benefit corporation, but
Developer has a legal or equitable interest in the Property and therefore is authorized to enter
into this Agreement pursuant to Government Code Section 65865 and Newport Beach Municipal
Code Chapter 15.45. The Property is more particularly described in the legal description
attached hereto as Exhibit A and is depicted on the site map attached hereto as Exhibit B.
B. OCMA owns that certain real property located in the City of Newport Beach,
County of Orange, State of California commonly referred to as the 0.9 -acre parcel, located at 856
San Clemente Drive (APN # 442-261-17), and generally bounded by Santa Cruz Drive on the
east, San Clemente Drive on the south, and Santa Barbara Drive to the west ("0.9 Acre Parcel").
The 0.9 Acre Parcel is more particularly described in the legal description attached hereto as
Exhibit C and is depicted on the site map attached hereto as Exhibit B. In connection with this
Agreement, OCMA has agreed to enter into that certain Donation Agreement attached hereto as
Exhibit D pursuant to which OCMA will donate the 0.9 Acre Parcel to the City on the terms and
subject to the conditions set forth therein.
C. To encourage investment in, and commitment to, comprehensive planning and
public facilities financing, strengthen the public planning process and encourage private
implementation of the local general plan, provide certainty in the approval of projects to avoid
waste of time and resources, and reduce the economic costs of development by providing
assurance to property owners that they may proceed with projects consistent with existing land
use policies, rules, and regulations, the California Legislature adopted California Government
Code Sections 65864-65869.5 ("Development Agreement Statute") authorizing cities and
counties to enter into development agreements with persons or entities having a legal or
equitable interest in real property located within their jurisdiction.
D. On March 13, 2007, the City Council adopted Ordinance No. 2007-6, entitled
"Ordinance Amending Chapter 15.45 of City of Newport Beach Municipal Code Regarding
Development Agreements" ("Development Agreement Ordinance"). This Agreement is
consistent with the Development Agreement Ordinance.
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E. As detailed in Section 4 of this Agreement and the Development Plans (as defined
herein), and in consideration of the significant benefits outlined in this Agreement, Developer
has agreed to pay a Public Benefit Fee (as defined herein) in the sum of seventy-one thousand
and one -hundred dollars ($71,100) per residential dwelling unit, or seven -million, one -hundred
and ten thousand dollars ($7,110,000) for the one -hundred (100) residential dwelling units
proposed by the Project (as defined herein). Developer shall pay the Public Benefit Fee to the
City as follows: The Developer shall pay the entire Public Benefit Fee to City prior to the
issuance of a grading permit for the Project.
F. This Agreement is consistent with the City of Newport Beach General Plan,
including, without limitation, the Property's proposed "Multiple Residential (RM -100)" General
Plan designation that is being adopted and approved by the City Council concurrently with its
approval of this Agreement to establish appropriate standards to regulate land use and
development of the Property consistent with the General Plan.
G. In recognition of the significant public benefits that this Agreement provides, the
City Council has found that this Agreement: (i) is consistent with the City of Newport Beach
General Plan as of the date of this Agreement; (ii) is in the best interests of the health, safety, and
general welfare of City, its residents, and the public; (iii) is entered into pursuant to, and
constitutes a present exercise of, the City's police power; (iv) is consistent and has been
approved consistent with the Project's final Environmental Impact Report (SCH# 2016021023)
("EIR") that has been certified by the City Council on or before the Agreement Date, all of
which analyze the environmental effects of the proposed development of the Project on the
Property, and all of the findings, conditions of approval and mitigation measures related thereto;
and (v) is consistent and has been approved consistent with provisions of California Government
Code Section 65867 and City of Newport Beach Municipal Code Chapter 15.45.
H. On October 20, 2016, City's Planning Commission held a public hearing on this
Agreement, made findings and determinations with respect to this Agreement, and recommended
to the City Council that the City Council approve this Agreement.
I. On November 29, 2016, the City Council also held a public hearing on this
Agreement and considered the Planning Commission's recommendations and the testimony and
information submitted by City staff, Developer, and members of the public. On December 13,
2016, consistent with applicable provisions of the Development Agreement Statute and
Development Agreement Ordinance, the City Council adopted its Ordinance No. 2016-24
("Adopting Ordinance"), finding this Agreement consistent with the City of Newport Beach
General Plan and approving this Agreement.
AGREEMENT
NOW, THEREFORE, City and Developer agree as follows:
1. Definitions.
In addition to any terms defined elsewhere in this Agreement, the following terms when
used in this Agreement shall have the meanings set forth below:
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"0.9 Acre Parcel" is located at 856 San Clemente Drive in the City, as described in
Exhibit C and depicted on Exhibit B.
"Action" shall have the meaning ascribed in Section 8.10 of this Agreement.
"Adopting Ordinance" shall mean City Council Ordinance No. 2016-24 approving and
adopting this Agreement.
"Agreement" shall mean this Development Agreement, as the same may be amended
from time to time.
"Agreement Date" shall mean the date first written above, which date is the date the City
Council adopted the Adopting Ordinance.
"CE A" shall mean the California Environmental Quality Act (California Public
Resources Code sections 21000-21177) and the implementing regulations promulgated
thereunder by the Secretary for Resources (California Code of Regulations, Title 14, section
15000 et seq.), as the same may be amended from time to time.
"CC" shall mean the City of Newport Beach, a California municipal corporation and
charter city, and any successor or assignee of the rights and obligations of the City of Newport
Beach hereunder.
"City Council" shall mean the governing body of City.
"City's Affiliated Parties" shall have the meaning ascribed in Section 10.1 of this
Agreement.
"Claim" shall have the meaning ascribed in Section 10.1 of this Agreement.
"CPI Index" shall mean the Consumer Price Index published from time to time by the
United States Department of Labor for all urban consumers (all items) for the smallest
geographic area that includes the City or, if such index is discontinued, such other similar index
as may be publicly available that is selected by City in its reasonable discretion.
"Cure Period" shall have the meaning ascribed in Section 8.1 of this Agreement.
"Default" shall have the meaning ascribed to that term in Section 8.1 of this Agreement.
"Develop" or "Development" shall mean to improve or the improvement of the Property
for the purpose of completing the structures, improvements, and facilities comprising the Project,
including but not limited to: grading; the construction of infrastructure and public facilities
related to the Project, whether located within or outside the Property; the construction of all of
the private improvements and facilities comprising the Project; the preservation or restoration, as
required of natural and man-made or altered open space areas; and the installation of
landscaping. The terms "Develop" and "Development," as used herein, do not include the
maintenance, repair, reconstruction, replacement, or redevelopment of any structure,
improvement, or facility after the initial construction and completion thereof.
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"Developer" shall mean OCMA Urban Housing, LLC, a California limited liability
corporation, and any successor or assignee to all or any portion of its right, title, and/or interest in
and to ownership of all or a portion of the Property and/or the Project.
"Development Agreement Ordinance" shall mean Chapter 15.45 of the City of Newport
Beach Municipal Code.
"Development Agreement Statute" shall mean California Government Code Sections
65864-65869.5, inclusive.
"Development Exactions" shall mean any requirement of City in connection with or
pursuant to any ordinance, resolution, rule, or official policy for the dedication of land, the
construction or installation of any public improvement or facility, or the payment of any fee or
charge in order to lessen, offset, mitigate, or compensate for the impacts of Development of the
Project on the environment or other public interests.
"Development Plan" shall mean all of the land use entitlements, approvals and permits
approved by the City for the Project on or before the Agreement Date, as the same may be
amended from time to time consistent with this Agreement. Such land use entitlements,
approvals and permits include, without limitation, the following: (1) the Development rights as
provided under this Agreement; (2) General Plan Amendment No. 2015-001 (amending the land
use designation from Private Institutional (PI) to Multiple Residential (RM -100) with a
maximum development limit of 100 units); (3) San Joaquin Planned Community Development
Plan Amendment No. PD 2015-001 (amending the San Joaquin Plaza Planned Community land
use designation from Civic/Cultural/Professional/Office to Multi -Unit Residential and to allow
new residential development standards including a 300 -foot height limit); (4) Vesting Tentative
Tract Map No. NT 2016-001; (5) Traffic Study No. TS 2015-004; (6) Site Development Review
No. SD2016-001); (7) the EIR (State Clearinghouse No. 2016021023); and (8) all conditions of
approval and all mitigation measures approved for the Project on or before the Agreement Date.
"Development Regulations" shall mean the following regulations as they are in effect as
of the Effective Date and to the extent they govern or regulate the development of the Property,
but excluding any amendment or modification to the Development Regulations adopted,
approved, or imposed after the Effective Date that affects the Development of the Property,
unless such amendment or modification is expressly authorized by this Agreement or is agreed to
by Developer in writing: the General Plan; the Development Plan; and, to the extent not
expressly superseded by the Development Plan or this Agreement (see Section 4.3 in particular),
all other land use and subdivision regulations governing the permitted uses, density and intensity
of use, design, and improvement, procedures for obtaining required City permits and approvals
for development, and similar matters that may apply to the Development of the Project on the
Property during the Term of this Agreement that are set forth in Title 15 of the Municipal Code
(buildings and construction), Title 19 of the Municipal Code (subdivisions and inclusionary
housing), and Title 20 of the Municipal Code (planning, zoning and density bonus), but
specifically excluding all other sections of the Municipal Code, including without limitation Title
5 of the Municipal Code (business licenses and regulations). Notwithstanding the foregoing, the
term "Development Regulations," as used herein, does not include any City ordinance,
resolution, code, rule, regulation or official policy governing any of the following: (i) the
conduct of businesses, professions, and occupations; (ii) taxes and assessments; (iii) the control
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and abatement of nuisances; (iv) the granting of encroachment permits and the conveyance of
rights and interests which provide for the use of or the entry upon public property; or (v) the
exercise of the power of eminent domain.
"Effective Date" shall mean the latest of all of the following occurring: (i) the date that is
thirty (30) calendar days after the Agreement Date; (ii) if a referendum concerning the Adopting
Ordinance, the Development Plan, or any of the Development Regulations approved on or before
the Agreement Date is timely qualified for the ballot and a referendum election is held
concerning the Adopting Ordinance or any of such Development Regulations, the date on which
the referendum is certified resulting in upholding and approving the Adopting Ordinance and the
Development Regulations; (iii) if a lawsuit is timely filed challenging the validity or legality of
the Adopting Ordinance, this Agreement, the Development Plan, and/or any of the Development
Regulations approved on or before the Agreement Date, the date on which said challenge is
finally resolved in favor of the validity or legality of the Adopting Ordinance, this Agreement,
the Development Plan, and/or the applicable Development Regulations, whether such finality is
achieved by a final non -appealable judgment, voluntary or involuntary dismissal (and the
passage of any time required to appeal an involuntary dismissal), or binding written settlement
agreement; or (iv) the date on which title to the Property has been transferred to, and vested in,
Developer as evidenced by an instrument duly recorded with the Office of the County Recorder
of the County of Orange. Promptly after the Effective Date occurs, the Parties agree to cooperate
in causing an appropriate instrument to be executed and recorded against the Property
memorializing the Effective Date.
"Environmental Laws" means all federal, state, regional, county, municipal, and local
laws, statutes, ordinances, rules, and regulations which are in effect as of the Agreement Date,
and all federal, state, regional, county, municipal, and local laws, statutes, rules, ordinances,
rules, and regulations which may hereafter be enacted and which apply to the Property or any
part thereof, pertaining to the use, generation, storage, disposal, release, treatment, or removal of
any Hazardous Substances, including without limitation the following: the Comprehensive
Environmental Response Compensation and Liability Act of 1980, 42 U.S.C. Sections 9601,
et sem., as amended ("CERCLA"); the Solid Waste Disposal Act, as amended by the Resource
Conservation and Recovery Act of 1976, 42 U.S.C. Sections 6901, et sec ., as amended
("RCRA"); the Emergency Planning and Community Right to Know Act of 1986, 42 U.S.C.
Sections 11001 et seq., as amended; the Hazardous Materials Transportation Act, 49 U.S.C.
Section 1801, et seq., as amended; the Clean Air Act, 42 U.S.C. Sections 7401 et seq., as
amended; the Clean Water Act, 33 U.S.C. Section 1251, et seq., as amended; the Toxic
Substances Control Act, 15 U.S.C. Sections 2601 et seq., as amended; the Federal Insecticide,
Fungicide and Rodenticide Act, 7 U.S.C. Sections 136 et seq., as amended; the Federal Safe
Drinking Water Act, 42 U.S.C. Sections 300f et seq., as amended; the Federal Radon and Indoor
Air Quality Research Act, 42 U.S.C. Sections 7401 et seq., as amended; the Occupational Safety
and Health Act, 29 U.S.C. Sections 651 et seq., as amended; and California Health and Safety
Code Section 25100, et SeMc .
"General Plan" shall mean City's 2006 General Plan adopted by the City Council on July
25, 2006, by Resolution No. 2006-76, and any amendments to the 2006 General Plan that
became effective before the Effective Date. The term "General Plan" shall exclude any
amendments that became effective after the Effective Date unless such amendment is expressly
authorized by this Agreement, or is specifically agreed to by Developer. The Land Use Plan of
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the Land Use Element of the General Plan was approved by City voters in a general election on
November 7, 2006.
"Hazardous Substances" means any toxic substance or waste, pollutant, hazardous
substance or waste, contaminant, special waste, industrial substance or waste, petroleum or
petroleum -derived substance or waste, or any toxic or hazardous constituent or additive to or
breakdown component from any such substance or waste, including without limitation any
substance, waste, or material regulated under or defined as "hazardous" or "toxic" under any
Environmental Law.
"Mortgage" shall mean a mortgage, deed of trust, sale and leaseback arrangement, or any
other form of conveyance in which the Property, or a part or interest in the Property, is pledged
as security and contracted for in good faith and for fair value.
"Mortgagee" shall mean the holder of a beneficial interest under a Mortgage or any
successor or assignee of the Mortgagee.
"Notice of Default" shall have the meaning ascribed in Section 8.1 of this Agreement.
"Party" or "Parties" shall mean either City or Developer or both, as determined by the
context.
"Project" shall mean all on-site and off-site improvements, including a 100 -unit
residential condominium tower at the Property measuring approximately 295 feet in height (25
stories) as well as all ancillary uses, such as club rooms, fitness facilities, lobbies, business
services, amenities, and other building services, as provided in this Agreement and the
Development Regulations, as the same may be modified or amended from time to time
consistent with this Agreement and applicable law.
"Property" is located at 850 San Clemente Drive in the City, as described in Exhibit A
and depicted on Exhibit B.
"Public Benefit Fee" shall have the meaning ascribed in Section 3.1 of this Agreement.
"Subsequent Development Approvals" shall mean all discretionary development and
building approvals that Developer is required to obtain to Develop the Project on and with
respect to the Property after the Agreement Date consistent with the Development Regulations
and this Agreement.
"Term" shall have the meaning ascribed in Section 2.4 of this Agreement.
"Termination Date" shall have the meaning ascribed in Section 2.4 of this Agreement.
"Transfer" shall have the meaning ascribed in Section 11 of this Agreement.
2. General Provisions.
2.1 Plan Consistency, Zoning Implementation.
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This Agreement is consistent with the General Plan and San Joaquin Plaza Planned
Community Development Plan as amended by the approvals in the Development Plan adopted
concurrently herewith.
2.2 Binding Effect of Agreement.
The Property is hereby made subject to this Agreement. Development of the Property is
hereby authorized and shall be carried out in accordance with the terms of this Agreement.
2.3 Developer Representations and Warranties Regarding Ownership of the Property
and Related Matters Pertaining to this Agreement.
Developer and each person executing this Agreement on behalf of Developer hereby
represents and warrants to City as follows: (i) that Developer has an option to purchase the fee
simple title to the Property and will be the owner of fee simple title to the Property
approximately one -hundred and eighty (180) calendar days following the Effective Date; (ii) if
Developer or any co-owner comprising Developer is a legal entity that such entity is duly formed
and existing and is authorized to do business in the State of California; (iii) if Developer or any
co-owner comprising Developer is a natural person that such natural person has the legal right
and capacity to execute this Agreement; (iv) that all actions required to be taken by all persons
and entities comprising Developer to enter into this Agreement have been taken and that
Developer has the legal authority to enter into this Agreement; (v) that Developer's entering into
and performing its obligations set forth in this Agreement will not result in a violation of any
obligation, contractual or otherwise, that Developer or any person or entity comprising
Developer has to any third party; and (vi) that neither Developer nor any co-owner comprising
Developer is currently the subject of any voluntary or involuntary bankruptcy or insolvency
petition; and (vii) that Developer has no actual knowledge of any pending or threatened claims of
any person or entity affecting the validity of any of the representations and warranties set forth in
clauses (i) -(vi), inclusive.
2.4 Term.
The term of this Agreement ("Term") shall commence on the Effective Date and shall
terminate on the "Termination Date."
Notwithstanding any other provision set forth in this Agreement to the contrary, if any
Party reasonably determines that the Effective Date of this Agreement will not occur because, for
example, (i) the Adopting Ordinance or any of the Development Regulations approved on or
before the Agreement Date for the Project has/have been disapproved by City's voters at a
referendum election or (ii) a final non -appealable judgment is entered in a judicial action
challenging the validity or legality of the Adopting Ordinance, this Agreement, and/or any of the
Development Regulations for the Project approved on or before the Agreement Date such that
this Agreement and/or any of such Development Regulations is/are invalid and unenforceable in
whole or in such a substantial part that the judgment substantially impairs such Party's rights or
substantially increases its obligations or risks hereunder or thereunder, then such Party, in its sole
and absolute discretion, shall have the right to terminate this Agreement upon delivery of a
written notice of termination to the other Party, in which event neither Party shall have any
further rights or obligations hereunder except that Developer's indemnity obligations set forth in
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Article 10 shall remain in full force and effect and shall be enforceable, and the Development
Regulations applicable to the Project and the Property only (but not those general Development
Regulations applicable to other properties in the City) shall be repealed by the City after delivery
of said notice of termination except for the Development Regulations that have been disapproved
by City's voters at a referendum election and, therefore, never took effect.
The Termination Date shall be the earliest of the following dates: (i) the tenth (10th)
anniversary of the Effective Date, unless such date has been extended in accordance with Section
5.1 of this Agreement; (ii) such earlier date that this Agreement may be terminated in accordance
with Articles 5, 7, and/or Section 8.3 of this Agreement and/or Sections 65865.1 and/or 65868 of
the Development Agreement Statute; or (iii) completion of the Project in accordance with the
terms of this Agreement, including Developer's complete satisfaction, performance, and
payment, as applicable, of all Development Exactions, the issuance of all required final
occupancy permits, and acceptance by City or applicable public agency(ies) or private entity(ies)
of all required offers of dedication.
Notwithstanding any other provision set forth in this Agreement to the contrary, the
provisions set forth in Article 10 and Section 14.11 (as well as any other Developer obligations
set forth in this Agreement that are expressly written to survive the Termination Date) shall
survive the Termination Date of this Agreement.
3. Public Benefits.
3.1 Public Benefit Fee.
As consideration for City's approval and performance of its obligations set forth in this
Agreement, Developer shall pay to City a fee that shall be in addition to any other fee or charge
to which the Property and the Project would otherwise be subject (herein, the "Public Benefit
Fee") in the sum of one hundred eleven thousand and one -hundred dollars ($111,100) per
residential dwelling unit, or eleven -million, one -hundred and ten thousand dollars ($11,110,000)
for the Project's one -hundred (100) residential dwelling units, with the unpaid balance of said
Public Benefit Fee increased beginning on January 1St following the second 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 with the unpaid balance of said
Public Benefit Fee increased on each subsequent January 1St during the Term of this Agreement
(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 Agreement 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. Notwithstanding any other provision set forth in
this Agreement to the contrary, during the Term of this Agreement City shall not increase the
Public Benefit Fee except pursuant to the CPI Index as stated in this Section 3.1.
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The Developer shall pay the Public Benefit Fee to the City as follows: The Developer
shall pay the entire Public Benefit Fee to City prior to the issuance of a grading permit for the
Project. The City has not designated a specific project or purpose for the Public Benefit Fee.
Developer acknowledges by its approval and execution of this Agreement that it is voluntarily
agreeing to pay the Public Benefit Fee, that its obligation to pay the Public Benefit Fee is an
essential term of this Agreement and is not severable from City's obligations and Developer's
vested rights to be acquired hereunder, and that Developer expressly waives any constitutional,
statutory, or common law right it might have in the absence of this Agreement to protest or
challenge the payment of the Public Benefit 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
Agreement for Developer's default, if Developer shall fail to timely pay any portion of the Public
Benefit Fee when due, City shall have the right to withhold issuance of any further building
permits, occupancy permits, or other development or building permits for the Project.
3.1.1 Public Benefit Fee Allocation
The City Council retains sole and absolute discretion to determine how the Public
Benefit Fee shall be allocated and no final decisions have been made to date. At the November
29, 2016, Special Meeting, the City Council expressed its interest in allocating the Public Benefit
Fee as follows:
a) $5,110,000 to the Facilities Financing Plan;
b) $2,000,000 for the improvement and operation of a cultural use located on the
0.9 Acre Parcel;
c) $1,000,000 to construct a permanent building for the Junior Lifeguards
Headquarters;
d) $1,000,000 to construct a lecture hall at the Central Library; and
e) $2,000,000 to fund the West Coast Highway Landscaping Project in West
Newport.
3.2 0.9 Acre Parcel Donation
As part of this Agreement, Developer shall cause OCMA to enter into that certain
Donation Agreement with the City, in the form attached hereto as Exhibit D, pursuant to which
OCMA shall execute a quitclaim deed to donate the 0.9 Acre Parcel to the City within thirty (30)
calendar days of the Effective Date, or such other transfer timeline agreed upon by City. The
City affirms that no physical redevelopment of the 0.9 Acre Parcel is contemplated as of the
Agreement Date, and that the City intends to continue to operate the 0.9 Acre Parcel in a manner
consistent with its operations on the Agreement Date for the foreseeable future. To the extent
that the City may wish to change the use or development of the 0.9 Acre Parcel at a currently -
unforeseen point in the future, such a change would be required to adhere to all applicable
provisions of planning, zoning and environmental law, including but not limited to Title 20 of
the Municipal Code (planning, zoning and density bonus), the California Environmental Quality
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Act (California Public Resources Code sections 21000-21177) and CEQA's implementing
regulations as promulgated thereunder by the Secretary for Resources (California Code of
Regulations, Title 14, section 15000 et seq.).
3.2.1 Public Benefit Reopener
In the event OCMA is unable, for any reason, to donate the 0.9 Acre Parcel to the
City as provided in Section 3.2, the Parties shall negotiate in good faith to determine an
alternative public benefit to be provided by Developer to City under this Agreement. The
alternative public benefit shall be of similar value to the 0.9 Acre Parcel. No permits or other
approvals shall be provided or approved by City for the Project until the Parties have completed
their negotiations to the satisfaction of the City Council. This alternative public benefit reopener
provision shall not require an amendment to this Agreement.
3.3 Other Public Benefits.
In addition to the Public Benefit Fee and the 0.9 Acre Parcel donation, the direct and
indirect benefits City expects to receive pursuant to this Development Agreement are as follows:
3.3.1 In -Lieu of Park Land Dedication Fee and On -Site Private Recreational
Amenities. Based upon the anticipated number of residents at the Project, the City calculated
that Developer's park land dedication for the Project pursuant to the City General Plan,
Government Code Section 66477 ("Quimby Act") and Newport Beach Municipal Code Chapter
19.52 at 1.1 acres. City acknowledges that Developer shall be eligible to receive credit against
the payment of fees or dedication of land consistent with the General Plan, Quimby Act and
Newport Beach Municipal Code Chapter 19.52. As of the Agreement Date, the City's
established fair market value per acre is $2,500,000, and this shall be used in assessing in -lieu of
park dedication fees and credit.
3.3.1.1. Credit for Private Recreational Amenities. Developer shall
construct and improve private recreational amenities pursuant to the Development Plan. Private
recreational amenities shall be privately owned and maintained in perpetuity by Developer or
any governing homeowners' association. For private recreational amenities, Developer may be
eligible to receive up to twenty percent (20%) credit against the payment of City fees (e.g., Park
In -Lieu Fees) or dedication of land in exchange for the provision of private recreational
amenities consistent with Newport Beach Municipal Code Chapter 19.52. The dollar amount of
the credit shall be based on land value established by multiplying the eligible acreage by Two
Million Five Hundred Thousand Dollars ($2,500,000).
3.3.1.2. Payment of Park In -Lieu Fees. In -lieu of parkland dedication
fees ("Park In -Lieu Fees") shall be paid to the City on a per unit basis prior to the issuance of a
certificate of occupancy for such unit. The fee amount for Park In -Lieu Fees shall be calculated
on a per-unit basis consistent with Newport Beach Municipal Code Chapter 19.52.
3.3.2 Bond Financing of Public Improvements and Fees. City and Developer may
cooperate in good faith with each other in connection with the formation of, or annexation into,
an assessment district or community facilities district, if any, to facilitate bond financing of
eligible public improvements and development impact fees.
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4. Development of Project.
4.1 Applicable Regulations; Developer's Vested Rights and City's Reservation of
Discretion With Respect to Subsequent Development Approvals.
Other than as expressly set forth in this Agreement, during the Term of this Agreement,
(i) Developer shall have the vested right to Develop the Project on and with respect to the
Property in accordance with the terms of the Development Regulations and this Agreement and
(ii) City shall not prohibit or prevent development of the Property on grounds inconsistent with
the Development Regulations or this Agreement. Notwithstanding the foregoing, nothing herein
is intended to limit or restrict the City's discretion with respect to (i) those review and approval
requirements contained in the Development Regulations, (ii) the exercise of any discretionary
authority City retains under the Development Regulations, (iii) the approval, conditional
approval, or denial of any Subsequent Development Approvals that are required for
Development of the Project as of the Effective Date, or (iv) any environmental approvals that
may be required under CEQA or any other federal or state law or regulation in conjunction with
any Subsequent Development Approvals that may be required for the Project, and in this regard,
as to future actions in connection with the Subsequent Development Approvals, the City reserves
its full discretion to the same extent that it would have such discretion in the absence of this
Agreement. In addition, it is understood and agreed that nothing in this Agreement is intended to
vest Developer's rights with respect to any laws, regulations, rules, or official policies of any
other (i.e., non -City) governmental agency or public utility company with jurisdiction over the
Property or the Project; or any applicable federal or state laws, regulations, rules, or official
policies that may be inconsistent with this Agreement and that override or supersede the
provisions set forth in this Agreement, and regardless of whether such overriding or superseding
laws, regulations, rules, or official policies are adopted or applied to the Property or the Project
prior or subsequent to the Agreement Date.
Developer has expended and will continue to expend substantial amounts of time and
money planning and preparing for Development of the Project. Developer represents, and City
acknowledges, that Developer would not make these expenditures without this Agreement, and
that Developer is and will be making these expenditures in reasonable reliance upon its vested
rights to Develop the Project as set forth in this Agreement.
Developer may apply to City for permits or approvals necessary to modify or amend the
Development specified in the Development Regulations, without amending this Agreement,
provided that the request does not propose an increase in the maximum density, intensity, height,
or size of proposed structures, or a change in use that generates more peak hour traffic or more
daily traffic and, in addition, Developer may apply to City for approval of minor amendments to
the existing tentative tract map, or associated conditions of approval, consistent with City of
Newport Beach Municipal Code Section 19.12.090. This Agreement does not constitute a
promise or commitment by City to approve any such permit or approval, or to approve the same
with or without any particular requirements or conditions, and City's discretion with respect to
such matters shall be the same as it would be in the absence of this Agreement.
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4.2 No Conflicting Enactments.
Except to the extent City reserves its discretion as expressly set forth in this Agreement,
during the Term of this Agreement City shall not apply to the Project or the Property any
ordinance, policy, rule, regulation, or other measure relating to Development of the Project that
is enacted or becomes effective after the Effective Date to the extent it conflicts with this
Agreement or Developer consents in writing. This Section 4.2 shall not restrict City's ability to
enact an ordinance, policy, rule, regulation, or other measure applicable to the Project pursuant to
California Government Code Section 65866 consistent with the procedures specified in Section
4.3 of this Agreement. In Pardee Construction Co. v. City of Camarillo (1984) 37 Cal.3d 465,
the California Supreme Court held that a construction company was not exempt from a city's
growth control ordinance even though the city and construction company had entered into a
consent judgment (tantamount to a contract under California law) establishing the company's
vested rights to develop its property consistent with the zoning. The California Supreme Court
reached this result because the consent judgment failed to address the timing of development.
The Parties intend to avoid the result of the Pardee case by acknowledging and providing in this
Agreement that Developer shall have the vested right to Develop the Project on and with respect
to the Property at the rate, timing, and sequencing that Developer deems appropriate within the
exercise of Developer's sole subjective business judgment, provided that such Development
occurs in accordance with this Agreement and the Development Regulations, notwithstanding
adoption by City's electorate of an initiative to the contrary after the Effective Date. No City
moratorium or other similar limitation relating to the rate, timing, or sequencing of the
Development of all or any part of the Project and whether enacted by initiative or another
method, affecting subdivision maps, building permits, occupancy certificates, or other
entitlement to use, shall apply to the Project to the extent such moratorium or other similar
limitation restricts Developer's vested rights in this Agreement or otherwise conflicts with the
express provisions of this Agreement.
4.3 Reservations of Authority.
Notwithstanding any other provision set forth in this Agreement to the contrary, the laws,
rules, regulations, and official policies set forth in this Section 4.3 shall apply to and govern the
Development of the Project on and with respect to the Property.
4.3.1 Procedural Regulations. Unless otherwise specified in this Agreement,
procedural regulations relating to hearing bodies, petitions, applications, notices, findings,
records, hearings, reports, recommendations, appeals, and any other matter of procedure shall
apply to the Property, provided that such procedural regulations are adopted and applied City-
wide or to all other properties similarly situated in City.
4.3.2 Processing and Permit Fees. City shall have the right to charge, and
Developer shall be required to pay, all applicable processing and permit fees to cover the
reasonable cost to City of processing and reviewing applications and plans for any required
Subsequent Development Approvals, building permits, excavation and grading permits,
encroachment permits, and the like, for performing necessary studies and reports in connection
therewith, inspecting the work constructed or installed by or on behalf of Developer, and
monitoring compliance with any requirements applicable to Development of the Project, all at
the rates in effect at the time fees are due.
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4.3.2.1 Vested Development Impact Fees. All City development impact
fees and fee in lieu of parkland dedication fees shall be fixed at the rates in place on the
Agreement Date as shown on attached Exhibit E. Fees and charges levied by any other (i.e.,
non -City) governmental agency or public utility company with jurisdiction over the Property or
the Project shall not be fixed in place by the Development Agreement.
4.3.3 Consistent Future City Regulations. City ordinances, resolutions,
regulations, and official policies governing Development which do not conflict with the
Development Regulations, or with respect to such regulations that do conflict, where Developer
has consented in writing to the regulations, shall apply to the Property.
4.3.4 Development Exactions Applicable to Property. During the Term of this
Agreement, Developer shall be required to satisfy and pay all Development Exactions at the time
performance or payment is due to the same extent and in the same amount(s) that would apply to
Developer and the Project in the absence of this Agreement; provided except where the extent
the timing, value, scope and/or extent of a particular Development Exaction for the Project has
been established and fixed by City in this Agreement, the Project's conditions of approval, or the
Development Regulations. City shall not alter, increase, or modify said Development Exaction in
a manner that is inconsistent with this Agreement, the Project's conditions of approval, or the
Development Regulations without Developer's prior written consent or as may be otherwise
required pursuant to overriding federal or state laws or regulations (Section 4.3.5 below). In
addition, nothing in this Agreement is intended or shall be deemed to vest Developer against the
obligation to pay any of the following (which are not included within the definition of
"Development Exactions") in the full amount that would apply in the absence of this Agreement:
(i) City's normal fees for processing, environmental assessment and review, tentative tract and
parcel map review, plan checking, site review and approval, administrative review, building
permit, grading permit, inspection, and similar fees imposed to recover City's costs associated
with processing, reviewing, and inspecting project applications, plans, and specifications,
including CEQA review; (ii) fees and charges levied by any other public agency, utility, district,
or joint powers authority, regardless of whether City collects those fees and charges; or (iii)
community facility district special taxes or special district assessments or similar assessments,
business license fees, bonds or other security required for public improvements, transient
occupancy taxes, sales taxes, property taxes, sewer lateral connection fees, water service
connection fees, new water meter fees, and the Property Development Tax payable under Section
3.12 of City's Municipal Code.
4.3.5 Overriding Federal and State Laws and Regulations. Federal and state
laws and regulations that override Developer's vested rights set forth in this Agreement shall
apply to the Property, together with any City ordinances, resolutions, regulations, and official
policies that are necessary to enable City to comply with the provisions of any such overriding
federal or state laws and regulations, provided that (i) Developer does not waive its right to
challenge or contest the validity of any such purportedly overriding federal, state, or City law or
regulation; and (ii) upon the discovery of any such overriding federal, state, or City law or
regulation that prevents or precludes compliance with any provision of this Agreement, City or
Developer shall provide to the other Party a written notice identifying the federal, state, or City
law or regulation, together with a copy of the law or regulation and a brief written statement of
the conflict(s) between that law or regulation and the provisions of this Agreement. Promptly
thereafter, City and Developer shall meet and confer in good faith in a reasonable attempt to
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determine whether a modification or suspension of this Agreement, in whole or in part, is
necessary to comply with such overriding federal, state, or City law or regulation. In such
negotiations, City and Developer agree to preserve the terms of this Agreement and the rights of
Developer as derived from this Agreement to the maximum feasible extent while resolving the
conflict. City agrees to cooperate with Developer at no cost to City or Developer in resolving the
conflict in a manner which minimizes any financial impact of the conflict upon Developer. City
also agrees to process in a prompt manner Developer's proposed changes to the Project and any
of the Development Regulations as may be necessary to comply with such overriding federal,
state, or City law or regulation; provided, however, that the approval of such changes by City
shall be subject to the discretion of City, consistent with this Agreement.
4.3.6 Public Health and Safety. Any City ordinance, resolution, rule, regulation,
program, or official policy that is necessary to protect persons on the Property or in the
immediate vicinity from conditions dangerous to their health or safety, as reasonably determined
by City, shall apply to the Property, even though the application of the ordinance, resolution, rule
regulation, program, or official policy would result in the impairment of Developer's vested
rights under this Agreement.
4.3.7 Uniform Building Standards. Existing and future building and building -
related standards set forth in the uniform codes adopted and amended by City from time to time,
including building, plumbing, mechanical, electrical, housing, swimming pool, and fire codes,
and any modifications and amendments thereof shall all apply to the Project and the Property to
the same extent that the same would apply in the absence of this Agreement.
4.3.8 Public Works Improvements. To the extent Developer constructs or
installs any public improvements, works, or facilities, the City standards in effect for such public
improvements, works, or facilities at the time of City's issuance of a permit, license, or other
authorization for construction or installation of same shall apply.
4.3.9 No Guarantee or Reservation of Utility Capacity. Notwithstanding any
other provision set forth in this Agreement to the contrary, nothing in this Agreement is intended
or shall be interpreted to require City to guarantee or reserve to or for the benefit of Developer or
the Property any utility capacity, service, or facilities that may be needed to serve the Project,
whether domestic or reclaimed water service, sanitary sewer transmission or wastewater
treatment capacity, downstream drainage capacity, or otherwise, and City shall have the right to
limit or restrict Development of the Project if and to the extent that City reasonably determines
that inadequate utility capacity exists to adequately serve the Project at the time Development is
scheduled to commence. Notwithstanding the foregoing, City covenants to provide utility
services to the Project on a non-discriminatory basis (i.e., on the same terms and conditions that
City undertakes to provide such services to other similarly situated new developments in the City
of Newport Beach as and when service connections are provided and service commences).
4.4 Tentative Subdivision Maps
City agrees that Developer may file and process new and existing vesting tentative maps
for the Property consistent with California Government Code Sections 66498.1-66498.9 and
Newport Beach Municipal Code Chapter 19.20. Pursuant to the applicable provision of the
California Subdivision Map Act (California Government Code section 66452.6(a)), the life of
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any tentative subdivision map approved for the Property, whether designated a "vesting tentative
map" or otherwise, shall be extended for the Term of this Agreement.
5. Amendment or Cancellation of Agreement
This Agreement may be amended or canceled in whole or in part only by mutual written
and executed consent of the Parties in compliance with California Government Code Section
65868 and Newport Beach Municipal Code Section 15.45.070 or by unilateral termination by
City in the event of an uncured default of Developer.
5.1 Extension.
Developer may request up to, and upon receipt of a written request from Developer, City
shall grant one (1) five (5) year extension to extend the Term of this Agreement for a total of five
(5) additional years provided that Developer has timely submitted its written request to extend
this Agreement prior to its expiration and that Developer is not in default of this Agreement.
6. Enforcement.
Unless amended or canceled pursuant to California Government Code Section 65868,
Newport Beach Municipal Code Section 15.45.070, or modified or suspended pursuant to
Newport Beach Municipal Code Chapter 15.45 or California Government Code Section 65869.5,
and except as otherwise provided in subdivision (b) of Section 65865.3, this Agreement shall be
enforceable by any Party despite any change in any applicable general or specific plan, zoning,
subdivision, or building regulation or other applicable ordinance or regulation adopted by City
(including by City's electorate) that purports to apply to any or all of the Property.
7. Annual Review of Developer's Compliance With Agreement.
7.1 General.
City shall review this Agreement once during every twelve (12) month period following
the Effective Date for compliance with the terms of this Agreement as provided in Government
Code section 65865.1. Developer (including any successor to the owner executing this
Agreement on or before the date of the Adopting Ordinance) shall pay City a reasonable fee in
an amount City may reasonably establish from time to time to cover the actual and necessary
costs for the annual review. City's failure to timely provide or conduct an annual review shall
not constitute a Default hereunder by City.
7.2 Developer Obligation to Demonstrate Good Faith Compliance.
During each annual review by City, Developer is required to demonstrate good faith
compliance with the terms of the Agreement. Developer agrees to furnish such evidence of good
faith compliance as City, in the reasonable exercise of its discretion, may require, thirty (30) days
prior to each anniversary of the Effective Date during the Term.
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7.3 Procedure.
The Zoning Administrator shall conduct a duly noticed hearing and shall determine, on
the basis of substantial evidence, whether or not Developer has, for the period under review,
complied with the terms of this Agreement. If the Zoning Administrator finds that Developer
has so complied, the annual review shall be concluded. If the Zoning Administrator finds, on the
basis of substantial evidence, that Developer has not so complied, written notice shall be sent to
Developer by first class mail of the Zoning Administrator's finding of non-compliance, and
Developer shall be given at least ten (10) days to cure any noncompliance that relates to the
payment of money and thirty (30) days to cure any other type of noncompliance. If a cure not
relating to the payment of money cannot be completed within thirty (30) days for reasons which
are beyond the control of Developer, Developer must commence the cure within such thirty (30)
days and diligently pursue such cure to completion. If Developer fails to cure such
noncompliance within the time(s) set forth above, such failure shall be considered to be a Default
and City shall be entitled to exercise the remedies set forth in Article 8 below.
7.4 Annual Review a Non -Exclusive Means for Determining and Requiring Cure of
Developer's Default.
The annual review procedures set forth in this Article 7 shall not be the exclusive means
for City to identify a Default by Developer or limit City's rights or remedies for any such
Default.
8. Events of Default.
8.1 General Provisions.
In the event of any material default, breach, or violation of the terms of this Agreement
("Default"), the Party alleging a Default shall deliver a written notice (each, a "Notice of
Default") to the defaulting Party. The Notice of Default shall specify the nature of the alleged
Default and a reasonable manner and sufficient period of time (twenty (20) days if the Default
relates to the failure to timely make a monetary payment due hereunder and not less than thirty
(30) days in the event of non -monetary Defaults) in which the Default must be cured ("Cure
Period"). During the Cure Period, the Party charged shall not be considered in Default for the
purposes of termination of this Agreement or institution of legal proceedings. If the alleged
Default is cured within the Cure Period, then the Default thereafter shall be deemed not to exist.
If a non -monetary Default cannot be cured during the Cure Period with the exercise of
commercially reasonable diligence, the defaulting Party must promptly commence to cure as
quickly as possible, and in no event later than thirty (30) days after it receives the Notice of
Default, and thereafter diligently pursue said cure to completion. Notwithstanding the foregoing,
the City is not required to give Developer notice of default and may immediately pursue
remedies for a Developer Default that result in an immediate threat to public health, safety or
welfare.
8.2 Default by Developer.
If Developer is alleged to have committed Default and it disputes the claimed Default, it
may make a written request for an appeal hearing before the City Council within ten (10) days of
receiving the Notice of Default, and a public hearing shall be scheduled at the next available City
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Council meeting to consider Developer's appeal of the Notice of Default. Failure to appeal a
Notice of Default to the City Council within the ten (10) day period shall waive any right to a
hearing on the claimed Default. If Developer's appeal of the Notice of Default is timely and in
good faith but after a public hearing of Developer's appeal the City Council concludes that
Developer is in Default as alleged in the Notice of Default, the accrual date for commencement
of the thirty (30) day Cure Period provided in Section 8.1 shall be extended until the City
Council's denial of Developer's appeal is communicated to Developer in writing.
8.3 City's Option to Terminate Agreement.
In the event of an alleged Developer Default, City may not terminate this Agreement
without first delivering a written Notice of Default and providing Developer with the opportunity
to cure the Default within the Cure Period, as provided in Section 8.1, and complying with
Section 8.2 if Developer timely appeals any Notice of Default. A termination of this Agreement
by City shall be valid only if good cause exists and is supported by evidence presented to the
City Council at or in connection with a duly noticed public hearing to establish the existence of a
Default. The validity of any termination may be judicially challenged by Developer. Any such
judicial challenge must be brought within ninety (90) calendar days of service on Developer, by
first class mail, postage prepaid, of written notice of termination by City or a written notice of
City's determination of an appeal of the Notice of Default as provided in Section 8.2.
8.4 Default by City.
If Developer alleges a City Default and alleges that the City has not cured the Default
within the Cure Period, Developer may pursue any legal or equitable remedy available to it,
including, without limitation, an action for a writ of mandamus, injunctive relief, or specific
performance of City's obligations set forth in this Agreement. Upon a City Default, any
resulting delays in Developer's performance hereunder shall neither be a Developer Default nor
constitute grounds for termination or cancellation of this Agreement by City and shall, at
Developer's option (and provided Developer delivers written notice to City within thirty (30)
days of the commencement of the alleged City Default), extend the Term for a period equal to
the length of the delay.
8.5 Waiver.
Failure or delay by any Party in delivering a Notice of Default shall not waive that
Party's right to deliver a future Notice of Default of the same or any other Default.
8.6 Specific Performance Remedy.
Due to the size, nature, and scope of the Project, it will not be practical or possible to
restore the Property to its pre-existing condition once implementation of this Agreement has
begun. After such implementation, both Developer and City may be foreclosed from other
choices they may have had to plan for the development of the Property, to utilize the Property or
provide for other benefits and alternatives. Developer 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. It is not possible to
determine the sum of money which would adequately compensate Developer or City for such
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efforts. For the above reasons, except as set forth in Section 8.7, City and Developer agree that
damages would not be an adequate remedy if either City or Developer fails to carry out its
obligations under this Agreement. Therefore, except as set forth in Section 8.7, specific
performance of this Agreement is necessary to compensate Developer if City fails to carry out its
obligations under this Agreement or to compensate City if Developer falls to carry out its
obligations under this Agreement.
8.7 Monetary Damages.
The Parties agree that monetary damages shall not be an available remedy for any Party
for a Default hereunder by the other Party; provided, however, that (i) nothing in this Section 8.7
is intended or shall be interpreted to limit or restrict City's right to recover the Public Benefit
Fees due from Developer as set forth herein; and (ii) nothing in this Section 8.7 is intended or
shall be interpreted to limit or restrict Developer's indemnity obligations set forth in Article 10
or the right of the prevailing Party in any Action to recover its litigation expenses, as set forth in
Section 8.10. In no event shall damages be awarded against the City upon an event of default or
upon termination of this Agreement. Developer expressly agrees that the City, any City agencies
and their respective elected and appointed councils, boards, commissions, officers, agents,
employees, volunteers and representatives (collectively, for purposes of this Section 8.7, "City")
shall not be liable for any monetary damage for a Default by the City or any claims against City
arising out of this Agreement. Developer hereby expressly waives any such monetary damages
against the City. The sole and exclusive judicial remedy for Developer in the event of a Default
by the City shall be an action in mandamus, specific performance, or other injunctive or
declaratory relief.
8.8 Additional City Remedy for Developer's Default.
In the event of any Default by Developer, in addition to any other remedies which may be
available to City, whether legal or equitable, City shall be entitled to receive and retain any
Development Exactions applicable to the Project or the Property, including any fees, grants,
dedications, or improvements to public property which it may have received prior to Developer's
Default without recourse from Developer or its successors or assigns.
8.9 No Personal Liability of City Officials, Employees, or Agents.
No City official, employee, or agent shall have any personal liability hereunder for a
Default by City of any of its obligations set forth in this Agreement.
8.10 Recovery of Legal Expenses by Prevailing Party in Any Action.
In any judicial proceeding, arbitration, or mediation (collectively, an "Action") between
the Parties that seeks to enforce the provisions of this Agreement or arises out of this Agreement,
the prevailing Party shall recover all of its actual and reasonable costs and expenses, regardless
of whether they would be recoverable under California Code of Civil Procedure section 1033.5
or California Civil Code section 1717 in the absence of this Agreement. These costs and
expenses include court costs, expert witness fees, attorneys' fees, City staff costs (including
overhead), and costs of investigation and preparation before initiation of the Action. The right to
recover these costs and expenses shall accrue upon initiation of the Action, regardless of whether
the Action is prosecuted to a final judgment or decision.
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9. Force Majeure.
No Party shall be deemed to be in Default where failure or delay in performance of any
of its obligations under this Agreement is caused, through no fault of the Party whose
performance is prevented or delayed, by floods, earthquakes, other acts of God, fires, wars, riots
or similar hostilities, strikes or other labor difficulties, state or federal regulations, or court
actions. Except as specified above, nonperformance shall not be excused because of the act or
omission of a third person. In no event shall the occurrence of an event of force majeure operate
to extend the Term of this Agreement. In addition, in no event shall the time for performance of
a monetary obligation, including without limitation Developer's obligation to pay Public Benefit
Fees, be extended pursuant to this Section.
10. Indemnity Obligations of Developer.
10.1 Indemnity Arising From Acts or Omissions of Developer.
Except to the extent caused by the intentional misconduct or gross negligent acts, errors
or omissions of City or one or more of City's officials, employees, agents, attorneys, and
contractors (collectively, the "City's Affiliated Parties"), Developer 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 Developer or Developer's agents, contractors, subcontractors,
agents, or employees in the course of Development of the Project or any other activities of
Developer relating to the Property or Project, or pursuant to this Agreement. City shall have the
right, in its sole discretion, to select and retain counsel to defend any Claim filed against City
and/or any of City's Affiliated Parties, and Developer shall pay the reasonable cost for defense of
any Claim. The indemnity provisions in this Section 10.1 shall commence on the Agreement
Date, regardless of whether the Effective Date occurs, and shall survive the Termination Date.
10.2 Third Party Litigation.
In addition to its indemnity obligations set forth in Section 10. 1, Developer 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 Agreement, the Adopting Ordinance, any of the Development Plan approvals 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 Agreement. Said indemnity obligation shall include payment of reasonable attorney's
fees, expert witness fees, City staff costs (including overhead), and court costs. City shall
promptly notify Developer of any such Claim and City shall cooperate with Developer in the
defense of such Claim. Developer shall not be responsible to indemnify, defend, and hold City
harmless from such Claim until Developer is so notified and if City fails to cooperate in the
defense of a Claim Developer shall not be responsible to defend, indemnify, and hold harmless
City during the period that City so fails to cooperate or for any losses attributable thereto. City
shall be entitled to retain separate counsel to represent City against the Claim and the City's
reasonable defense costs for its separate counsel shall be included in Developer's indemnity
obligation, provided that such counsel shall reasonably cooperate with Developer in an effort to
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minimize the total litigation expenses incurred by Developer. In the event either City or
Developer recovers any attorney's fees, expert witness fees, costs, interest, or other amounts
from the party or parties asserting the Claim, Developer shall be entitled to retain the same
(provided it has fully performed its indemnity obligations hereunder). No settlement of any
Claim against City or City's Affiliated Parties shall be executed without the written consent of
both the City and Developer. The indemnity provisions in this Section 10.2 shall commence on
the Agreement Date, regardless of whether the Effective Date occurs, and shall survive the
Termination Date.
10.3 Environmental Indemnity.
In addition to its indemnity obligations set forth in Section 10.1, from and after the
Effective Date Developer shall indemnify, defend, and hold harmless City and City's Affiliated
Parties from and against any and all Claims for personal injury or death, property damage,
economic loss, statutory penalties or fines, and damages of any kind or nature whatsoever,
including without limitation reasonable attorney's fees, expert witness fees, and costs, based
upon or arising from any of the following: (i) the actual or alleged presence of any Hazardous
Substance on or under any of the Property in violation of any applicable Environmental Law; (ii)
the actual or alleged migration of any Hazardous Substance from the Property through the soils
or groundwater to a location or locations off of the Property; and (iii) the storage, handling,
transport, or disposal of any Hazardous Substance on, to, or from the Property and any other area
disturbed, graded, or developed by Developer in connection with Developer's Development of
the Project. The indemnity provisions in this Section 10.3 shall commence on the Effective Date
occurs, and shall survive the Termination Date.
11. Assignment.
Developer shall have the right to sell, transfer, or assign (hereinafter, collectively, a
"Transfer") Developer's interest in or fee title to the Property, in whole or in part, to a "Permitted
Transferee" (which successor, as of the effective date of the Transfer, shall become the
"Developer" under this Agreement) at any time from the Agreement Date until the Termination
Date; provided, however, that no such Transfer shall violate the provisions of the Subdivision
Map Act (Government Code Section 66410 et seq.) or City's local subdivision ordinance and
any such transfer shall include the assignment and assumption of Developer's rights, duties, and
obligations set forth in or arising under this Agreement as to the Property or the portion thereof
so Transferred and shall be made in strict compliance with the following conditions precedent:
(i) no transfer or assignment of any of Developer's rights or interest under this Agreement shall
be made unless made together with the Transfer of all or a part of Developer's interest in the
Property; and (ii) prior to the effective date of any proposed Transfer, Developer (as transferor)
shall notify City, in writing, of such proposed Transfer and deliver to City a written assignment
and assumption, executed in recordable form by the transferring and successor Developer and in
a form subject to the reasonable approval of the City Attorney of City (or designee), pursuant to
which the transferring Developer assigns to the successor Developer and the successor
Developer assumes from the transferring Developer all of the rights and obligations of the
transferring Developer with respect to the Property and this Agreement, or interest in the
Property, or portion thereof to be so Transferred, including in the case of a partial Transfer the
obligation to perform such obligations that must be performed outside of the Property so
Transferred that are a condition precedent to the successor Developer's right to develop the
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portion of the Property so Transferred. Any Permitted Transferee shall have all of the same
rights, benefits, duties, obligations, and liabilities of Developer under this Agreement with
respect to the portion of, or interest in, the Property sold, transferred, and assigned to such
Permitted Transferee; provided, however, that in the event of a Transfer of less than all of the
Property, or interest in the Property, no such Permitted Transferee shall have the right to enter
into an amendment of this Agreement that jeopardizes or impairs the rights or increases the
obligations of the Developer with respect to the balance of the Property, without Developer's
written consent.
Notwithstanding any Transfer, the transferring Developer shall continue to be jointly and
severally liable to City, together with the successor Developer, to perform all of the transferred
obligations set forth in or arising under this Agreement unless there is full satisfaction of all of
the following conditions, in which event the transferring Developer shall be automatically
released from any and all obligations with respect to the portion of the Property so Transferred:
(i) the transferring Developer no longer has a legal or equitable interest in the portion of the
Property so Transferred other than as a beneficiary under a deed of trust; (ii) the transferring
Developer is not then in Default under this Agreement and no condition exists that with the
passage of time or the giving of notice, or both, would constitute a Default hereunder; (iii) the
transferring Developer has provided City with the notice and the fully executed written and
recordable assignment and assumption agreement required as set forth in the first paragraph of
this Section 11; and (iv) the successor Developer either (A) provides City with substitute security
equivalent to any security previously provided by the transferring Developer to City to secure
performance of the successor Developer's obligations hereunder with respect to the Property, or
interest in the Property, or the portion of the Property so Transferred or (B) if the transferred
obligation in question is not a secured obligation, the successor Developer either provides
security reasonably satisfactory to City or otherwise demonstrates to City's reasonable
satisfaction, as determined in the City's sole discretion, that the successor Developer has the
financial resources or commitments available to perform the transferred obligation at the time
and in the manner required under this Agreement and the Development Regulations for the
Project.
12. Mortgagee Rights.
12.1 Encumbrances on Property.
The Parties agree that this Agreement shall not prevent or limit Developer in any manner
from encumbering the Property, any part of the Property, or any improvements on the Property
with any Mortgage securing financing with respect to the construction, development, use, or
operation of the Project.
12.2 Mortgagee Protection.
This Agreement shall be superior and senior to the lien of any Mortgage. Nevertheless,
no breach of this Agreement shall defeat, render invalid, diminish, or impair the lien of any
Mortgage made in good faith and for value. Any acquisition or acceptance of title or any right or
interest in the Property or part of the Property by a Mortgagee (whether due to foreclosure,
trustee's sale, deed in lieu of foreclosure, lease termination, or otherwise) shall be subject to all
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of the terms and conditions of this Agreement. Any Mortgagee who takes title to the Property or
any part of the Property shall be entitled to the benefits arising under this Agreement.
12.3 Mortgagee Not Obligated.
Notwithstanding the provisions of this Section 12.3, a Mortgagee will not have any
obligation or duty under the terms of this Agreement to perform the obligations of Developer or
other affirmative covenants of Developer, or to guarantee this performance except that: (i) the
Mortgagee shall have no right to develop the Project under the Development Regulations without
fully complying with the terms of this Agreement; and (ii) to the extent that any covenant to be
performed by Developer is a condition to the performance of a covenant by City, that
performance shall continue to be a condition precedent to City's performance.
12.4 Notice of Default to Mortgagee; Right of Mortgagee to Cure.
Each Mortgagee shall, upon written request to City, be entitled to receive written notice
from City of: (i) the results of the periodic review of compliance specified in Article 7 of this
Agreement, and (ii) any default by Developer of its obligations set forth in this Agreement.
Each Mortgagee shall have a further right, but not an obligation, to cure the Default
within thirty (30) days after receiving a Notice of Default with respect to a monetary Default and
within sixty (60) days after receiving a Notice of Default with respect to a non -monetary Default.
If the Mortgagee can only remedy or cure a non -monetary Default by obtaining possession of the
Property, then the Mortgagee shall have the right to seek to obtain possession with diligence and
continuity through a receiver or otherwise, and to remedy or cure the non -monetary Default
within sixty (60) days after obtaining possession and, except in case of emergency or to protect
the public health or safety, City may not exercise any of its judicial remedies set forth in this
Agreement to terminate or substantially alter the rights of the Mortgagee until expiration of the
sixty (60) -day period. In the case of a non -monetary Default that cannot with diligence be
remedied or cured within sixty (60) days, the Mortgagee shall have additional time as is
reasonably necessary to remedy or cure the Default, provided the Mortgagee promptly
commences to cure the non -monetary Default within sixty (60) days and diligently prosecutes
the cure to completion.
13. Bankruptcy. The obligations of this Agreement shall not be dischargeable in bankruptcy
14. Miscellaneous Terms.
14.1 Joinder of OCMA
OCMA is executing this Agreement for the sole and limited purposes of (i) consenting,
in its capacity as record owner of the Property as of the Agreement Date, to the recordation of
this Agreement against the Property pursuant to Section 14.18 hereof, and (ii) agreeing, in
OCMA's capacity as record owner of the 0.9 Acre Parcel, to enter into the Donation Agreement
with the City, in the form attached hereto as Exhibit D, in accordance with Section 3.2 above and
(iii) accepting its obligations to donate the 0.9 Acre Parcel to the City on the terms set forth in
this Agreement and the Donation Agreement.
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14.2 Notices.
Any notice or demand that shall be required or permitted by law or any provision of this
Agreement shall be in writing. If the notice or demand will be served upon a Party, it either shall
be personally delivered to the Party; deposited in the United States mail, certified, return receipt
requested, and postage prepaid; or delivered by a reliable courier service that provides a receipt
showing date and time of delivery with courier charges prepaid. The notice or demand shall be
addressed as follows:
TO CITY: City of Newport Beach
100 Civic Center Drive
Newport Beach, California 92660
Attn: City Manager
With a copy to: City Attorney
City of Newport Beach
100 Civic Center Drive
Newport Beach, California 92660
TO DEVELOPER: Mr. Gino Canori
OCMA Urban Housing, LLC
18201 Von Karman Avenue, Suite 900
Irvine, California 92912
With a copy to: Sean Matsler, Esq.
Manatt, Phelps & Phillips, LLP
695 Town Center Drive, 14th Floor
Costa Mesa, California 92626
TO OCMA: Mr. Todd Smith
Orange County Museum Of Art
850 San Clemente Drive
Newport Beach, CA 92660
Any Party may change the address stated in this Section 14.2 by delivering notice to the
other Parties in the manner provided in this Section 14.2, and thereafter notices to such Party or
Parties shall be addressed and submitted to the new address. Notices delivered in accordance
with this Agreement shall be deemed to be delivered upon the earlier of. (i) the date received, or
(ii) three business days after deposit in the mail as provided above.
14.3 Project as Private Undertaking_
The Development of the Project is a private undertaking. Neither the Developer nor the
City is acting as the agent of the other in any respect, and each is an independent contracting
entity with respect to the terms, covenants, and conditions set forth in this Agreement. This
Agreement forms no partnership, joint venture, or other association of any kind. The only
relationship between the Parties is that of a government entity regulating the Development of
private property by the owner of the property.
23
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14.4 Cooperation.
Each Party shall cooperate with and provide reasonable assistance to the other Party to
the extent consistent with and necessary to implement this Agreement. Upon the request of a
Party at any time, the other Party shall promptly execute, with acknowledgement or affidavit if
reasonably required, and file or record the required instruments and writings and take any actions
as may be reasonably necessary to implement this Agreement or to evidence or consummate the
transactions contemplated by this Agreement.
14.5 Estoppel Certificates.
At any time, any Party may deliver written notice to the other Party requesting that that
Party certify in writing that, to the best of its knowledge: (i) this Agreement is in full force and
effect and is binding on the Party; (ii) this Agreement has not been amended or modified either
orally or in writing or, if this Agreement has been amended, the Party providing the certification
shall identify the amendments or modifications; and (iii) the requesting Party is not in Default in
the performance of its obligations under this Agreement and no event or situation has occurred
that with the passage of time or the giving of Notice or both would constitute a Default or, if
such is not the case, then the other Party shall describe the nature and amount of the actual or
prospective Default.
The Party requested to furnish an estoppel certificate shall execute and return the
certificate within thirty (30) days following receipt.
14.6 Rules of Construction.
The singular includes the plural; the masculine and neuter include the feminine; "shall" is
mandatory; and "may" is permissive.
14.7 Time Is of the Essence.
Time is of the essence regarding each provision of this Agreement as to which time is an
element.
14.8 Waiver.
The failure by a Party to insist upon the strict performance of any of the provisions of this
Agreement by the other Party, and failure by a Party to exercise its rights upon a Default by the
other Party, shall not constitute a waiver of that Party's right to demand strict compliance by the
other Party in the future.
14.9 Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall be
identical and may be introduced in evidence or used for any other purpose without any other
counterpart, but all of which shall together constitute one and the same agreement.
24
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14. 10 Entire Agreement.
This Agreement constitutes the entire agreement between the Parties and supersedes all
prior agreements and understandings, both written and oral, between the Parties with respect to
the subject matter addressed in this Agreement.
14.11 Severability.
The Parties intend that each and every obligation of the Parties is interdependent and
interrelated with the other, and if any provision of this Agreement or the application of the
provision to any Party or circumstances shall be held invalid or unenforceable to any extent, it is
the intention of the Parties that the remainder of this Agreement or the application of the
provision to persons or circumstances shall be rendered invalid or unenforceable. The Parties
intend that no Party shall receive any of the benefits of the Agreement without the full
performance by such Party of all of its obligations provided for under this Agreement. Without
limiting the generality of the foregoing, the Parties intend that Developer shall not receive any of
the benefits of this Agreement if any of Developer's obligations are rendered void or
unenforceable as the result of any third party litigation, and City shall be free to exercise its
legislative discretion to amend or repeal the Development Regulations applicable to the Property
and Developer shall cooperate as required, despite this Agreement, should third party litigation
result in the nonperformance of Developer's obligations under this Agreement. The provisions
of this Section 14.11 shall apply regardless of whether the Effective Date occurs and after the
Termination Date.
14.12 Construction.
This Agreement has been drafted after extensive negotiation and revision. Both City and
Developer are sophisticated parties who were represented by independent counsel throughout the
negotiations or City and Developer had the opportunity to be so represented and voluntarily
chose to not be so represented. City and Developer each agree and acknowledge that the terms
of this Agreement are fair and reasonable, taking into account their respective purposes, terms,
and conditions. This Agreement shall therefore be construed as a whole consistent with its fair
meaning, and no principle or presumption of contract construction or interpretation shall be used
to construe the whole or any part of this Agreement in favor of or against any Party.
14.13 Successors and Assigns; Constructive Notice and Acceptance.
The burdens of this Agreement shall be binding upon, and the benefits of this Agreement
shall inure to, all successors in interest to the Parties to this Agreement. Except for those
provisions relating to indemnity in Section 10, all other provisions of this Agreement shall, from
and after the Effective Date hereof, be enforceable as equitable servitudes and constitute
covenants running with the land. Subject to occurrence of the Effective Date, each covenant to
do or refrain from doing some act hereunder with regard to Development of the Property: (i) is
for the benefit of and is a burden upon every portion of the Property; (ii) runs with the Property
and each portion thereof, and (iii) is binding upon each Party and each successor in interest
during its ownership of the Property or any portion thereof. Every person or entity who now or
later owns or acquires any right, title, or interest in any part of the Project or the Property is and
shall be conclusively deemed to have consented and agreed to every provision of this
25
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Agreement. This Section 14.13 applies regardless of whether the instrument by which such
person or entity acquires the interest refers to or acknowledges this Agreement and regardless of
whether such person or entity has expressly entered into an assignment and assumption
agreement as provided for in Section 11.
14.14 No Third Party Beneficiaries.
The only Parties to this Agreement are City and Developer. This Agreement does not
involve any third party beneficiaries, and it is not intended and shall not be construed to benefit
or be enforceable by any other person or entity.
14.15 Applicable Law and Venue.
This Agreement shall be construed and enforced consistent with the laws of the State of
California, without regard to conflicts of law principles. Any action at law or in equity arising
under this Agreement or brought by any Party for the purpose of enforcing, construing, or
determining the validity of any provision of this Agreement shall be filed and tried in the
Superior Court of the County of Orange, State of California, or the United States District Court
for the Central District of California. The Parties waive all provisions of law providing for the
removal or change of venue to any other court.
14.16 Section Headings.
All section headings and subheadings are inserted for convenience only and shall not
affect construction or interpretation of this Agreement.
14.17 Incorporation of Recitals and Exhibits.
All of the Recitals are incorporated into this Agreement by this reference. Exhibits A and
B are attached to this Agreement and incorporated by this reference as follows:
EXHIBIT
DESIGNATION
DESCRIPTION
A
Legal Description of Property
B
Depiction of the Property and 0.9 Acre Parcel
C
Legal Description of 0.9 Acre Parcel
D
0.9 Acre Parcel Donation Agreement
E
Schedule of Development Impact Fees
26
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14.18 Recordation.
The City Clerk of City shall record this Agreement and any amendment, modification, or
cancellation of this Agreement in the Office of the County Recorder of the County of Orange
within the period required by California Government Code section 65868.5 and City of Newport
Beach Municipal Code section 15.45.090. The date of recordation of this Agreement shall not
modify or amend the Effective Date or the Termination Date.
[SIGNATURE PAGE FOLLOWS]
27
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SIGNATURE PAGE TO
DEVELOPMENT AGREEMENT
"DEVELOPER"
OCMA Urban Housing, LLC a California
limited liability corporation
M.
Name:
Title:
"CITY"
CITY OF NEWPORT BEACH
Diane B. Dixon, Mayor
ATTEST:
Leilani I. Brown, City Clerk
APPROVED AS TO FORM:
Aaron C. Harp, City Attorney
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DRAFT
ACKNOWLEDGEMENT AND CONSENT
OF OWNER
The undersigned duly -authorized officer of OCMA is executing this Agreement on behalf
of OCMA for the limited purposes set forth in Section 14.1 above.
"OCMA"
L'In
Name:
Title:
-29-
5-73
ACKNOWLEDGEMENTS
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
COUNTY OF
On , before me,
(here insert name and title of the officer)
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.
Signature (Seal)
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
COUNTY OF
On 9 , before me,
(here insert name and title of the officer)
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.
112/066751-0090
2347819.1 a12/01/16 -30-
SD\611846.4
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112/066751-0090
2347819.1 a12/01/16
Signature (Seal)
-31-
SD\611846.4
5-75
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE COUNTY OF ORANGE, STATE OF
CALIFORNIA. AND IS DESCRIBED AS FOLLOWS:
PARCEL 2 OF THE PARCEL MAP, IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE. STATE OF
CALIFORNIA. AS SHOWN ON A MAP RECORDED IN BOOK 81. PAGES v, AND 11. OF PARCEL. MAPS. IN THE
OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPT THEREFROM ALL OIL. OIL RIGHTS, MINERALS, MINERAL RIGHTS, NATURAL GAS RIGHTS, AND
OTHER HYDROCARBONS BY WHATSOEVER NAME KNOWN, GEOTHERMAL STEAM AND ALL PRODUCTS
DERIVED FROM ANY OF THE FOREGOING. THAT MAY BE WITHIN OR UNDER SAID LAND, TOGETHER
WITH THE PERPETUAL RIGHT OF DRILLING, MINING, EXPLORING AND OPERATING THEREFORE. AND
STORING IN AND REMOVING THE SAME FROM SAID LAND OR ANY OTHER LANDS, INCLUDING THE RIGHT
TO WHIPSTOCK OR DIRECTIONALLY DRILL AND MINE FROM LANDS OTHER THAN THE SAID LAND, OIL
OR GAS WELLS, TUNNELS AND SHAFTS INTO, THROUGH OR ACROSS THE SUBSURFACE OF THE SAID
LAND AND TO BOTTOM SUCH WHIPSTOCKED OR DIRECTIONALLY DRILLED WELLS, TUNNELS AND
SHAFTS UNDER AND BENEATH OR BEYOND THE EXTERIOR LIMITS THEREOF, AND TO REDRILL,
RETUNNEL, EQUIP, MAINTAIN. REPAIR, DEEPEN AND OPERATE ANY SUCH WELLS OR NINES, WITHOUT,
HOWEVER. THE RIGHT TO DRILL, MINE, STORE, EXPLORE AND OPERATE THROUGH THE SURFACE OR THE
UPPER 500 FEET OF THE SUBSURFACE OF SAID LAND, AS RESERVED BY THE IRVINE COMPANY IN THE
DEED RECORDED FEBRUARY 28, 1077, IN BOOK 12085. PAGE 1501, OF OFFICIAL RECORDS,
APN: 442-261-05
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EXHIBIT B
DEPICTION OF PROPERTY AND 0.9 ACRE PARCEL
L
This Map is being fumished as a ccnMentance to locate the
f herein described land in relation to adjoining suets and other
lands. The Company does not guarantee dlmansions, 442_ j 4
distances, bearings,or acreage staled theraon. nvr is i< L
-
Q A
.I]r' •' .f v�
Intended to Illustrate legal twllding sites or supersede City or
GRunly Rralnances, i.e. zoning and buil3ing code&, eto.�
d09olal Information concom tg the use or arty parcel shRWid
i` fi' eq
be obtained from t9Cal government 5jyencleS.
Tr7v�N�
c9rE' 1
a
aRrv� ':
WAC CL7FB,QR4 aRp1E
psi p -
;� e f v PARCEL AVOCRS - ' -
1908f SUB 7l.,il. 1-68 SHaePv :N ::R!" i$ r aP .r: ixot
TRACT NO. 4015 �s-=rr•s. U. M. Z34-78 ro 4t 1N:.
.err rr
Mao 1976 NE>rsraPrs W� TRACT AD. 1517d N. 737-45.46.47
rovt,ik}P� AI. ,g\ PARCEL NAR P. Al. 81-8: 73G?2. 175-22 3aw`Y 442 ?A:'= 26 `- I
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TRACT NO. 4015 �s-=rr•s. U. M. Z34-78 ro 4t 1N:.
.err rr
Mao 1976 NE>rsraPrs W� TRACT AD. 1517d N. 737-45.46.47
rovt,ik}P� AI. ,g\ PARCEL NAR P. Al. 81-8: 73G?2. 175-22 3aw`Y 442 ?A:'= 26 `- I
1
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EXHIBIT C
LEGAL DESCRIPTION OF 0.9 ACRE PARCEL
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE COUNTY OF ORANGE, STATE OF
CALIFORNIA, AND 1S DESCRIBED AS FOLLOWS'.
PARCEL A_
PARCEL 2, AS SHOWN ON EXHIBIT "B" OF CITY OF NEWPORT BEACH LOT LINE ADJUSTMENT, N.B.L.L.A.
95-3, CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, RECORDED OCTOBER 31.
1995, AS INSTRUMENT" NO. 19950483821 OF OFFICIAL RECORDS. IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY -
EXCEPT FHEREFROM ALL OIL, OIL RIGHTS. MINERALS, MINERAL RIGHTS, NATURAL GAS RIGHTS. AND
OTHER HYDROCARBONS BY WHATSOEVER NAME KNOWN, GEOTHERMAL STEAM AND ALL PRODUCTS
DERIVED FROM ANY OF THE FOREGOING, THAT MAY BE WITHIN OR UNDER SAID LAND, TOGETHER
WITH THE PERPETUAL RIGHT OF DRILLING, MINING, EXPLORING AND OPERATING THEREFORE, AND
STORING IN AND REMOVING THE SAME FROM SAID LAND OR ANY OTHER LANDS, INCLUDING THE RIGHT
TO WHIPSTOCK OR DIRECTIONALLY DRILL AND MINE FROM LANDS OTHER THAN THE SAID LAND, OIL
OR GAS WELLS, TUNNELS AND SHAFTS INTO, THROUGH OR ACROSS THE SUBSURFACE OF THE SAID
LAND AND TO BOTTOM SUCH WHIPSTOCKED OR DIRECTIONALLY DRILLED WELLS, TUNNELS AND
SHAFTS UNDER AND BENEATH OR BEYOND THE EXTERIOR LIMITS THEREOF, AND TO REDRILL,
RETUNNEL, EQUIP, MAINTAIN, REPAIR, DEEPEN AND OPERATE ANY SUCH WELLS OR MINES, WITHOUT,
HOWEVER, THE RIGHT TO DRILL, MINE, STORE, EXPLORE AND OPERATE THROUGH THE SURFACE OR THE
UPPER 500 FEET OF THE SUBSURFACE OF SAID LAND AS RESERVED BY THE IRVINE COMPANY IN THE
DEED RECORDED NOVEMBER 22, 1995, AS INSTRUMENT NO. 19950519960. OF OFFICIAL RECORDS,
EXCEPT ANY AND ALL WATER RIGHTS OR INTERESTS THEREIN APPURTENANT OR RELATING TO THE
LAND OR WITH RESPECT TO THE LAND, WHETHER SUCH WATER RIGHTS SHALL BE RIPARIAN_
OVERLYING, APPROPRIATIVE, LITTORAL, PERCOLATING, PRESCRIPTIVE, ADJUDICATED, STATUTORY OR
CONTRACTUAL, TOGETHER WITH THE RIGHT AND POWER TO DRILL, REDRILL, STORE IN AND REMOVE
THE SAME FROM THE LAND OR TO DIVERT OR OTHERWISE UTILIZE SUCH WATER, RIGHTS OR INTEREST
ON ANY OTHER PROPERTY OWNED OR LEASED BY GRANTOR, BUT WITHOUT, HOWEVER ANY RIGHT TO
ENTER UPON THE SURFACE OF THE LAND IN THE EXERCISE OF SUCH RIGHTS, AS RESERVED BY THE
IRVINE COMPANY IN THE DEED RECORDED NOVEMBER 22, 1995, AS INSTRUMENT NO. 199.50519960. OF
OFFICIAL RECORDS.
AN APPURTENANT NON-EXCLUSIVE JOINT ACCESS EASEMENT FOR ACCESS, INGRESS AND EGRESS OVER
THAT PORTION OF PARCEL 1 AS SHOWN ON EXHIBIT "B" OF CITY OF NEWPORT BEACH LOT LINE
ADJUSTMENT N.B.L_L.A_ 95-3, RECORDED OCTOBER 31, 1995, AS INSTRUMENT NO. 19950483821. OF
OFFICIAL RECORDS, DESCRIBED AS FOLLOWS:
BEGINNING AT THE MOST SOUTHERLY SOUTHEASTERLY CORNER OF SAID PARCEL L THENCE,
NORT14ERLY ALONG THE EASTERLY PARCEL LINE OF SAID PARCEL I NORTH 070 03'01" WEST 55.00 FEET;
THENCE, SOUTH 820 56' 59" WEST 65.00 FEET: THENCE, SOUTH 07° 03'01" EAST 55.00 FEET TOA POINT ON
THE MOST SOUTHERLY LINE OF SAID PARCEL 1, SAID POINT BEING ALSO ON THE MOST NORTHERLY
RIGHT OF WAY LINE OF SAN CLEMENTE DRIVE; THENCE, EASTERLY ALONG SAID SOUTHERLY LINE AND
SAID RIGHT OF WAY LIME NORTH 820 56'59" EAST 65.00 FEET TO THE POINT OF BEGINNING.
APN: 412-261-1.7
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EXHIBIT D
0.9 ACRE PARCEL DONATION AGREEMENT
5-79
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 Agreement 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.
DONATION AGREEMENT
by and between
The City of Newport Beach and the Orange County Museum of Art
Regarding
0.9 Acre Parcel (APN # 442-261-17)
This Donation Agreement ("Agreement") is made by and between the City of Newport Beach
("City"), a California municipal corporation, and the Orange County Museum of Art (successor -
in -interest by merger to Newport Harbor Art Museum) ("OCMA"), a California nonprofit public
benefit corporation, as of , 2016 ("Effective Date"). City and OCMA are referred to
in this Agreement individually as a "Party" and collectively as the "Parties."
RFCTTAT.S
A. OCMA is the owner of fee title to that certain approximately 0.9 acre real property parcel
located in the City located at 856 San Clemente Drive (APN # 442-261-17), as more
particularly described in Exhibit A and depicted on Exhibit B, attached hereto, including
all fixtures and improvements thereon (collectively, the "0.9 Acre Parcel").
B. OCMA is also the owner of fee title to a 1.99 -acre parcel located at 850 San Clemente
Drive (APN # 442-261-05) (the "Museum Parcel"). OCMA has entered into a contract
with OCMA Urban Housing, LLC ("Developer") for the purchase of the Museum Parcel
(the "Museum Parcel Purchase Agreement").
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C. The Museum Parcel is subject to the provisions of that certain Development Agreement
by and between the City and Developer (Ordinance No. , the "Development
Agreement") regarding the entitlement and development of the Museum Parcel for the
"Museum House" project comprised of one -hundred (100) residential dwelling units
("Project"). The Development Agreement was introduced on , 2016 and adopted by
the Newport Beach City Council on , 2016. As a condition to the Development
Agreement, Section 3.2 thereof requires Developer to cause OCMA to donate the 0.9
Acre Parcel to the City. OCMA has agreed to such donation of the 0.9 Acre Parcel on the
terms set forth herein.
D. Consistent with the Development Agreement, the Parties desire that fee ownership of the
0.9 Acre Parcel be transferred via quitclaim deed to, and vested in, the City, subject to a
limited -term Leaseback (defined below) to OCMA on the terms set forth herein, and that
the 0.9 Acre Parcel be thereafter held and operated in accordance with the terms of this
Agreement.
NOW, THEREFORE, in consideration of the above, OCMA offers to donate the 0.9 Acre Parcel
to the City in fee, and the City accepts said offer, upon the following terms and conditions:
1. Timing. Unless another transfer method and transfer timeline is agreed upon by City in
writing, OCMA agrees to convey, assign, and transfer all of its interest in the 0.9 Acre
Parcel to the City pursuant to a quitclaim deed, duly executed and acknowledged by
OCMA, within thirty (30) calendar days of the last of the following events to occur
("Transfer Date"):
a. Thirty (30) calendar days after the date that the City Council adopts the
Development Agreement via ordinance ("Adopting Ordinance");
b. If a referendum concerning: (i) the Adopting Ordinance: (ii) any of the land use
entitlements, approvals and/or permits approved by the City for the Project, or any
of the land use and subdivision regulations governing the Project (collectively,
"Project Approvals") is timely qualified for the ballot and a referendum election is
held concerning same, the date on which the referendum is certified resulting in
upholding and approving same and allowing for the development of the Project;
c. If a lawsuit is timely filed challenging the Project Approvals, the date on which
said challenge is finally resolved in favor of same whether such finality is
achieved by a final non -appealable judgment, voluntary or involuntary dismissal
(and the passage of any time required to appeal an involuntary dismissal), or
binding written settlement agreement; or
d. The date on which title to_850 San Clemente Drive (APN # 442-261-05) has been
transferred to, and vested in, OCMA Urban Housing, LLC as evidenced by an
instrument duly recorded with the Office of the County Recorder of the County of
Orange.
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2. Leaseback. Beginning on the Transfer Date provided in Subsections 1(a) -(d) above, City
shall lease the 0.9 Acre Parcel back to the OCMA for a term of five (5) years
("Leaseback"), pursuant to the following terms and conditions:
a. Leaseback Financial Obligations. OCMA's annual rent obligation shall be fixed
at one dollar ($1.00). During the Leaseback, OCMA shall be solely responsible
for any maintenance expenses, building insurance, and property taxes (i.e., triple
net lease).
b. City's Leaseback Rights. The City shall retain limited access rights to the 0.9
Acre Parcel throughout the Leaseback to inspect, survey and/or analyze the 0.9
Acre Parcel. The City's access during the Leaseback shall occur, if at all: (i)
during normal business hours; (ii) subject to three (3) calendar days' prior written
notice to OCMA; and (iii) in strict compliance with OCMA's reasonable security
procedures. The City's access shall not materially interfere with OCMA's use of
the 0.9 Acre Parcel. The City has no right to make any physical improvements or
modifications to the 0.9 Acre Parcel during the Leaseback.
c. Leaseback Indemnification. City shall indemnify, defend, save, and hold
harmless OCMA, its elected officers, employees, and agents, from and against
any and all liability, expense (including defense costs and legal fees), and claims
for damages of any nature whatsoever arising out of the City's use of the 0.9 Acre
Parcel during the Leaseback.
The foregoing terms shall be set forth in a lease agreement to be executed by OCMA, as
tenant, and the City, as landlord, on or before the Transfer Date, in such form as may be
reasonably acceptable to the Parties.
3. Physical Condition. OCMA offers the 0.9 Acre Parcel to the City in "as is" condition,
without any representations or warranties regarding physical condition of the 0.9 Acre
Parcel or its improvements. OCMA shall have no obligation to the City to perform any
repairs, alterations or improvements to the 0.9 Acre Parcel (other than normal
maintenance during the Leaseback).
4. Declaration of Special Land Use Restrictions. As a condition precedent to OCMA's
donation of the 0.9 Acre Parcel to City while the Special Land Use Restrictions are in
effect, the City shall deliver to OCMA written consent to said transfer from The Irvine
Company, as well as The Irvine Company's waiver of its future rights and OCMA's
future obligations under the Declaration of Special Land Use Restrictions, Right of First
Refusal, Mortgage Lien and Other Remedies recorded in the County of Orange,
California (Instrument No. 19950519961) and attached hereto.
5. City Use of 0.9 Acre Parcel. The 0.9 Acre Parcel shall be used in a manner that is
consistent with the City's General Plan and corresponding zoning. No physical
redevelopment of the 0.9 Acre Parcel is contemplated as of the Effective Date, and the
City intends to continue to operate the 0.9 Acre Parcel in a manner consistent with its
operations on the Effective Date for the foreseeable future. To the extent that the City
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may wish to change the use or development of the 0.9 Acre Parcel at a currently -
unforeseen point in the future, such a change would be required to adhere to all
applicable development controls, including but not limited to Title 20 of the Municipal
Code (planning, zoning and density bonus), Title 5 of the Municipal Code (business
licenses and regulations), the Subdivision Map Act (Government Code Section 66410 et
seq.), the California Environmental Quality Act (California Public Resources Code
Sections 21000-21177) and CEQA's implementing regulations as promulgated
thereunder by the Secretary for Resources (California Code of Regulations, Title 14,
Section 15000 et seq.).
6. Condition of 0.9 Acre Parcel. City acknowledges that neither OCMA, its agents,
employees nor its other representatives have made any representations or warranties
regarding any matter relating to the 0.9 Acre Parcel, including but not limited to the 0.9
Acre Parcel's physical condition, title, environmental conditions, adequacy of design,
suitability for a particular purpose, effect of zoning and/or other applicable laws,
regulations and/or governmental rulings, or the accuracy, completeness or relevance of
any materials or information regarding the 0.9 Acre Parcel. City agrees that it is relying
exclusively on its own independent judgment of all such matters and the 0.9 Acre Parcel
is being accepted in an "as -is, where -is, with -all -faults" condition with all physical or title
defects.
7. Indemnification. Developer and/or OCMA shall indemnify, defend, save, and hold
harmless City , its elected officers, employees, and agents, from and against any and all
liability, expense (including defense costs and legal fees), and claims for damages of any
nature whatsoever arising out of OCMA's donation of the 0.9 Acre Parcel to the City
excluding only claims arising during the term of the Leaseback which are proximately
caused by the acts or omissions of City or its employees, agents or permittees on the 0.9
Acre Parcel.
7.1 Developer is executing this Agreement for the sole and limited purposes
of providing the indemnity in Section 7.
8. Taxes and Assessments. OCMA shall pay all general and special real property taxes and
supplemental assessments, as well as any assessments, special taxes or other payments
arising from bonds, contracts, or liens created by, through or as a result of the efforts or
activities of OCMA (collectively, "Obligations") that have accrued prior to the Transfer
Date. Except as set forth in Section 2 of this Agreement, City shall pay for all
Obligations accruing from the Transfer Date.
9. Transactional Fees. All recording, escrow, title, insurance and other fees necessary to
effect the donation of the 0.9 Acre Parcel to the City shall be paid by the City.
10. Amendment. This Agreement may be amended only by the written mutual consent of
OCMA and the City.
11. Required Actions of City and OCMA. City and OCMA agree to execute all such
instruments and documents and to take all actions pursuant to the provisions of this
5-83
Agreement to consummate donation of the 0.9 Acre Parcel. City shall record this
Agreement upon the Effective Date of the Development Agreement (as that term is
defined in Section 1 of the Development Agreement).
12. Entire Agreement. This Agreement contains the entire agreement between the Parties
regarding the 0.9 Acre Parcel and supersedes all prior oral and written communications
regarding same.
13. Counterparts. This Agreement may be executed in counterparts, each of which shall be
deemed an original, but all of which, together, shall constitute one and the same
Agreement.
14. California Law. This Agreement shall be construed in accordance with the laws of the
State of California, with venue in Orange County.
15. Waivers. No waiver by either Party of any provision of this Agreement shall be deemed
a waiver of any other provision hereof or of any subsequent breach by either party of the
same or any other provision.
16. Headings. The headings appearing in this Agreement are inserted only as a matter of
convenience and in no way define, limit, construe, or describe the scope or intent of such
sections of this Agreement.
17. Severability. In the event any portion of this Agreement shall be declared by any court of
competent jurisdiction to be invalid, illegal, or unenforceable, such portion shall be
severed from this Agreement and the remaining parts shall remain in full force and effect
as fully as though such invalid, illegal, or unenforceable portion had never been part of
this Agreement, provided that the remaining provisions of the Agreement can be
reasonably and equitably enforced.
18. Binding Effect. ffect. The provisions of this Agreement shall be binding upon the Parties and
their respective successors -in -interest.
19. Individual Authority. The individuals executing this Agreement on behalf of both Parties
affirm that they have the legal power, right, and authority to bind the Parties to the terms
and conditions of this Agreement.
20. Assistance of Counsel. Each Party either had the assistance of counsel or had counsel
available to it, in the negotiation for, and the execution of, this Agreement, and all related
documents.
21. Notices. All notices or other communications required or permitted hereunder shall be in
writing, and shall be personally delivered or sent by registered or certified mail, postage
prepaid, return receipt requested or by Express Mail or Federal Express to the following
address:
To City: City of Newport Beach
5-84
100 Civic Center Drive
Newport Beach, CA 92660
Attn: City Attorney
To OCMA: Orange County Museum of Art
850 San Clemente Drive
Newport Beach, CA 92660
Attn: Director and CEO
Notice shall be deemed given two (2) business days after deposit with a carrier as
specified above. Notice of a change of address shall be given by written notice in the
manner detailed herein.
***********************SIGNATURE PAGE FOLLOWS**********************
5-85
IN WITNESS WHEREOF, the Parties have executed this Agreement or caused it to be executed
on their behalf, on the day, month, and year first written above.
"OCMA"
By:
Name:
Title:
"DEVELOPER"
OCMA Urban Housing, LLC a California
limited liability corporation
By:
Name:
Title:
"CITY"
CITY OF NEWPORT BEACH
Diane B. Dixon, Mayor
ATTEST:
Leilani I. Brown, City Clerk
:r
APPROVED AS TO FORM:
Aaron C. Harp, City Attorney
5-87
EXHIBIT A
LEGAL DESCRIPTION OF 0.9 ACRE PARCEL
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE COUNTY OF ORANGE, STATE OF
CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
PARCEL A_
PARCEL 2, AS SHOWN ON EXHIBIT "B" OF CITY OF NEWPORT BEACH LOT LINE ADJUSTMENT, N.B.L.L.A.
95-3, CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, RECORDED OCTOBER 31.
1995. AS INSTRUMENT NO. 10950483821 OF OFFICIAL RECORDS. IN TI4E OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY.
EXCEPT THEREFROM ALL OIL, OIL RIGHTS, MINERALS, MINERAL RIGHTS, NATURAL GAS RIGHTS, AND
OTHER HYDROCARBONS BY WHATSOEVER NAME KNOWN. GEOTHERMAL STEAM AND ALL PRODUCTS
DERIVED FROM ANY OF THE FOREGOING, THAT MAY BE WITHIN OR UNDER SAID LAND, TOGETHER
WITH THE PERPETUAL RIGHT OF DRILLING. MINING, EXPLORING AND OPERATING THEREFORE, AND
STORING IN AND REMOVING THE SAME FROM SAID LAND OR ANY O'T'HER LANDS, INCLUDING THE RIGHT
TO WHIPSTOCK OR DIRECTIONALLY DRILL AND MINE FROM LANDS OTHER THAN THE SAID LAND, OIL
OR GAS WELLS. TUNNELS AND SHAFTS INTO, THROUGH OR ACROSS THE SUBSURFACE OF THE SAID
LAND AND TO BOTTOM SUCH WHIPSTOCKED OR DIRECTIONALLY DRILLED WELLS. TUNNELS AND
SHAFTS UNDER AND BENEATH OR BEYOND THE EXTERIOR LIMITS THEREOF, AND TO REDRILL.
RETUNNEL. EQUIP, MAINTAIN, REPAIR, DEEPEN AND OPERATE ANY SUCH WELLS OR MINES, WITHOUT,
HOWEVER, THE RIGHT TO DRILL. MINE, STORE.. EXPLORE AND OPERATE THROUGH THE SURFACE OR THE
UPPER 540 FEET OF THE SUBSURFACE OF SAID LAND AS RESERVED BY THE IRVINE COMPANY IN THE
DEED RECORDED NOVEMBER 22. 1095, AS INSTRUMENT NO. 19950519960. OF OFFICIAL RECORDS,
EXCEPT ANY AND ALL WATER RIGHTS OR INTERESTS THEREIN APPURTENANT OR RELATING TO THE
LAND OR WITH RESPECT TO THE LAND, WHETHER SUCH WATER RIGHTS SHALL BE RIPARIAN.
OVERLYING, APPROPRIATIVE, LITTORAL, PERCOLATING, PRESCRIPTIVE, ADJUDICATED, STATUTORY OR
CONTRACTUAL, TOGETHER WITH THE RIGHT AND POWER TO DRILL, REDRILL, STORE IN AND REMOVE
THE SAME FROM THE LAND OR TO DIVERT OR OTHERWISE UTILIZE SUCH WATER, RIGHTS OR INTEREST
ON ANY OTHER PROPERTY OWNED OR LEASED BY GRANTOR, BUT WITHOUT. HOWEVER ANY RIGHT TO
ENTER UPON THE SURFACE OF THE LAND IN THE EXERCISE OF SUCH RIGHTS, AS RESERVED BY THE
IRVINE COMPANY IN THE DEED RECORDED NOVEMBER 22, 1995, AS INSTRUMENT NO. 19950i]9960OF
OFFICIAL RECORDS.
1."1Zo401.3
AN APPURTENANT NON-EXCLUSIVE JOINT ACCESS EASEMENT FOR ACCESS, INGRESS AND EGRESS OVER
THAT PORTION OF PARCEL 1 AS SHOWN ON EXHIBIT "B" OF CITY OF NEWPORT 'BEACH LOT LINE
ADJUSTMENT N.B.L_L.A_ 95-3, RECORDED OCTOBER 31, 1995, AS INSTRUMENT NO. 19950483821.. OF
OFFICIAL RECORDS, DESCRIBED AS FOLLOWS:
BEGINNING AT THE MOST SOUTHERLY SOUTHEASTERLY CORNER OF SAID PARCEL 1; THENCE.
NORTHERLY ALONG THE EASTERLY PARCEL LINE OF SAID PARCEL I NORTH 076 03'01" WEST 55.00 FEET;
THENCE, SOUTH 82' 56' 59" WEST 65.00 FEET; THENCE, SOUTH 07' 03' 01" EAST 55.00 FEET TO A POINT ON
THE MOST SOUTHERLY LINE OF SAID PARCEL 1, SAID POINT BEING ALSO ON THE MOST NORTHERLY
RIGHT OF WAY LINE OF SAN CLEMENTE DRIVE; THENCE, EASTERLY ALONG SAID SOUTHERLY LINE AND
SAID RIGHT OF WAY LINE NORTH 820 56'59" 'EAST 65.00 FEET TO THE POINT OF BEGINNING.
APN: 442-261-17
5-88
EXHIBIT B
DEPICTION OF 0.9 ACRE PARCEL
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This Map Is being furnished as a convenience to locate the
iidpttibed lend In (elwon to adjoining sU.vm and oterryTne Company does not. guarantee dim—tons' 442-Z1
ers, braiings,uf Sewage hatedllrereon.not Is Ied
to Illuarraie legal bullding sites or supersede Cary or
y ardlnance a. k e zoning and building codes, etc.
l Irdormation concerning the use of"parcel shouldained
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horn local govemment agencies.
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5-89
Attachment
Declaration of Special Land Use Restrictions, Right of First Refusal, Mortgage Lien and
Other Remedies
5-90
RECORDING REQUESTED BY:
RECGF70100 RFu'=?TF0 V
WHEN RECORDED MAIL Ta:
THE IRVINE COMPANY
c/o Irvine Conunercial Land Sales Company
550 Newport Center Drive, 6th Noor
Newport Beach, CA 92660 t -
Attention: Jeffrey], Wallace, Fsq,
necoroeo in cne county or orange, calarornia
Gar L, Granville, Clerk/ftecorc
I�ill�llll�ll�lllilllll'IIIIIIIIIIIIIIIIIIII1111il11 150.00 1�
19950519961 4.:30P 11/22/95
007 058507 0 21 IB�1
001 005 l72044
44 21.00 0 : 128.00 0.00 0.00 0.00
0.09 0.00
SPACE ABOYE TM LUM FOR RECORDFR S USE '—
,s DECLARATION OF SPECIAL LAPID USE RESTRICTIONS, RIGHT
1( OF FIRST REFUSAL, MORTGAGE LIEN AND OTHER REMEDIES
t
F
i
Article 2,
2.1
2.2
2.3
2.4
2,5
2.6
2.7
2.8
2.9
Article 3.
IA
3.2
3.3
3.4
3.5
3.6
3.7
3-8
3.9
3.10
3.11
3-12
Article 4.
Article 5.
5.1
5.2
5.3
5.4
5,5
5.6
5.7
5.8
Anicie 6,
Article 7
TABLE OF CONTENTS
Page No:
GENERA LPOVISIONS . , ''" ' ' I ' I
Grantee's Rejresertadons and � .. . . .
1
Statement of Dectarant's General Purposes ...................... 2
Definition .... : ................................... 2
SPECIFIC RESTRICTIONS ..............
4
&%gific Fac-glifig : .................... ............ ...... 4
Declarant's Approvals ................................... ! 4 5
Grantees Cos .................................. I . I .. I . • . 6
Fulfillment of Requirements ..... 4 ..................... , . , 6
Compliance with Law ................................... 6
[Intentionally Omitted ................. . . . ................ 7
Bond.......... ...... ...... I ........... 7
Transfers ...... 7
7 ---------- ........ ......
Subordination ------------- I ........ 7
GENERAL RESTRICTIONS ................................. 9
Unapproved Development Or Use .............................. 9
Floor Area Limitation .................. ............ ..... 9
General Maintegance ---- ................................. 9
Restoration - , , - - : * .......... * .................... 9
Drainage ..................................... 9
[Intentionally Omitted.] .................. ...... ...... 9
Signs ...... — 10
mu'n . . . . .. . .. . . .. . . . . * . . . . . . .. .. . . . . . .
Prohibited Operations 10
No Subdivision --. ----------------------- ........... 11
Zonin . ....... ........................ 11
Assessment Districts and Associations ...... - . , - — .............. I I
Indemnity................... I .......................... 12
DECLARANT'S ]PLIGHT OF FIRST REFUSAL ..................... 13
REMEDIES_14
DeFault and Ge!Ler�li 14
Inspection..... ...................................... 16
Optio........ ........... ..................... 16
................ ................ 18
Waiver...... .................................. 18
Costs of Enforcement .... . . . . . . . . . . . . . . 18
Rights of Lenders .� .............................. I I ......... 18
Advances .......... I ..... — — ........................ !. 19
Intentionglly Omitted ................
....... ........ .. 19
Intentionally Omitted ................ ........... ........ 19
Kmpm Flarbur An Nl-
10
5-92
i
Article S. GENERALPRP—V-ISIONS ........................ ......... 19
8.1 Unavoidable DelaX . 4: ..................................... 19
8.2 Continuous Operations' ..................... ........... 20
8.3 Covenants to Run wlib the ProY., Tern20
8.4 Assignment by Decla.-ant ..... ............. ............... 120
8.5 Amendments ....... ............................ 21
8.6 Rlease........
21
.......... .......... .....
8.7 N
8.8 Governing Law ............ 122
..........
.............. 22
........................
8.9 Severability
8.10 Captions ...... 22
8,11 En -fire Agreement ... .......... ....... 4 22
8.12 Gender and Number ., ............................... . 22
8.13 Time of Essence .................. ............ . 22
8.15 Interest .......... ............... ................ .... 22
5-93
EXHIBIT C Fee Property
EXHIBIT D Subordination Agreement
EXHIBIT E IAC Benefitted Property
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5-94
5-94
DrCLARATION OF SPECIAL LAPID USE RESTRICTIONS,
RIGHT OF FIRST REFUSAL, MORTGAGE LIEN AND OTHER REMEDIES
- -.'77 P �
THIS DECLARATION OF SPECIAL LAND USE RESTRICTIONS, RIGHT OF FIRST
EFUSAL, MORTGAGELIEf� AND OTHER REMEDIES (this "Declaration") is made as �of
_, 199 by arO between THE IRVINE COMPANY*a Michigan corporation
("Declarant"), and NGW ORT IIAR60R ART MUSEUM, a California nonprofit public benefit
corporation ("Grant �" -jib reference to the following facts:
A. Grantee and Debarfint entered into a Donation Agreement and Escrow Instructions (the
"Donation Agreement") pursuant to which Grantee is acquiring from Declarant the following described
real property (the "Properly") situalt.A in the City of Newport Beach, County of Orange, State of
California:
Parcel A: All of that certai.It real property more fully described on EXHIBIT C-1
attached hereto ;tnd by this reference incorporated herein (the "Fee
Properly")
Parcel B; A permanent nonexclusive easement appurtenant to the Fee Property for access,
ingress and egress by vehicles and pedestrians to and from the Fee Property and
the adjoining public street over certain real property, all as more fully described
in the Declarldop of Easements (as hereinafter defined).
Parcel C: A permanent m-nexclusive easement appurtenant to the Fee Property fir surface
drainage from :Ile Fee Property over certain real property, all as more fully
described in the Declaration of Easements (as hereinafter defined),
B_ In connection with such acquisition, Grantee has represented to Declarant that it is
acquiring the Property to use the same n accordance with the covenants, conditions, rights, restrictions
and limitations as particularly set fordh herein (collectively referred to as the "Restrictions"), and
Declarant is donating the Property to Grantee on the basis of Grantee's continuing compliance with such
Restrictions.
NOW, THEREFORE, in consideration orthe foregoing (including the conveyance oftlie Property
by Declarant to Grantee), and other goad and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the parties hereto agree as Billows:
Article L GENERAL PRQVJSI
I.1 Grantee's Repres IR alio'IS aad Warranties, GRANTEE REPRESENTS AND
WARRANTS TO DECLARANT THAT GRANTEE HAS ACQUIRED THE PROPERTY TO USE THE
SAME IN COMPLIANCE WITH THE RESTRICTIONS SET r-ORTH HEREIN AND FOR THE
PARTICULAR USES AND PURPOSES AUTHORIZED HEREBY, GRANTEE ACKNOWLEDGES,
AMONG OTHER THINGS, THAT: (2) GRANTEE IS EXPERIENCED AND KNOWLEDGEABLE
IN THE OPERATION OF ART MUSEUMS AND DECLARANT AND GRANTEE DESIRE To
PROVIDE A QUALITY MUSEUM FOR LOCAL. CULTURAL ENRICHMENT; (b) DECLARANT
HAS DONATED AND GRANTEE HA$ ACCEPTED TITLE TO THE PROPERTY FOR USE BY
GRANTEE IN ACCORDANCE WITH THE PARTICULAR tJSF.S PROVIDED FOR IN THIS
DECLARATION; (c) DECLARANT AND C7RANTEB DO NOT EXPECT OR INTEND THE
ssnP"tsrW.MsrN.—I,., lo, 1495 DW—w6
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5-95
E
PROPERTY TO BE USED AT ANY TIME FOR ANY PURPOSE NOT OTHERWISE PE. t,MITTED
HEREIN; (d) THE LIKELIHOOD THAT ANY BREACH WILL OCCUR AND THAT DE(rLARANT
WILL EXERCISE ANY OF ITS RIGHTS AVAILABLE TO REMEDY ANY BREACH OR
NONCONFORMITY WITH THE RESTRICTIONS CONTAINED HEREIN IS EXTREMELY
REMOTE; (e) WITHOUT THE RESTRICTIONS CONTAINED HEREIN, THE PURPOINES AND
EXPECTATIONS OF DECLARANT AND GRANTEE TO PROVIDE A LOCAL CULTURAL
BENEFIT TO THE COMMUNITY SURROUNDING THE LAND COULD BE DEFEATED; AND
(f) BUT FOR DONATION OF THE PROPERTY, GRANTEE MIGHT BE REQUIRED TO PAY
SUBSTANTIAL SUMS TO ?URCHASE PROPERTY FOR ITS USES IN COMPETIT16N WITH
DEVELOPERS OF COMMERCIAL OFFICE AND/OR RETAIL PROPERTIES.
BUT FOR SUCH REPRESENTATIONS BY GRANTEE, AND GRANTEE'S UNIQUE
SKILLS, EXPERTISE AND SUITABILITY IN OPERATION OF ART MUSEUM FACILITIES,
DECLARANT WOULD NOT HAVE DONATED THE PROPERTY TO GRANTEE, BUT WOULD
HAVE RETAINED THE BENEFITS OF OWNERSHIP, INCLUDING FUTURE APPRECIATION OF
THE PROPERTY. ON THE BASIS OF SUCH REPRESENTATIONS AND WARRANTIES,
DECLARANT HAS DONATED THE PROPERTY TO GRANTEE,
1.2 State=ht of Declarant's_General Purposes. Declarant is the owner ofalargeand
unique landholding, part of which has been developed as a master planned business, recreational,
institutional and retail center, described below, in the City of Newport Beach (the "City")_ Amcng the
distinguishing characteristics Df this master planned center are the clear delineation of use areas
throughout the Center, define below, together with the strict exercise of architectural and occupancy
controls over individual construction projects, so as to ensure the harmonious growt) and develcpment
of the Center and the maximization of the value of Declarant's developed and undeveloped landholdings
as well as the Property itself_
In addition to those general concerns, it is vitally important to Declarant that the in-cnsity
of development shall be limited on those parcels of property (including the Property) that Declarant from
rme to time elects to convey to third parties. Should the development limitations imposed by Declarant
he exceeded, the roadways and the infrastructure improvements servicing the Center and its errvirons
could be overutilized, resultng in undesirable traffic congestion and housing andlor commercial
imbalances within the Center. Such conditions could in turn adversely affect the ability of Declarant to
develop, own, operate, lease or sell its landownings, including without limitation the "Benefitted
Property" as defined below.
It is to promote these purposes that this Declaration is made, and itis the intention -of the
parties that it will be in furtheriatce of said purposes that the Restrictions, and all other declarations
supplemental hereto, will be ur-derstood and construed_
I.3 Definir-ons. As used herein, the following terms shall have the meanings given
to them below:
(a) "Benefitted Property" shall wean all real property in Orange County,
California which Declarant cur-dntly owns, including, without limitation the real property descrited on
EXHIBLT A attached hereto and which Declarant continues to own at the time of enforcement Df the
applicable Restrictions. Declarant shall have the right by a duly recorded amendment 'hereto to
unilaterally substitute for or add:to the Benefitted Property described on EX1BIT A any real property
in Orange County, California which Declarant owns as of the date of this Declaration and cohtinies to
I1 2574"SPtN3,MMS. mbff 10.1M Dn1+ro,p„
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5-96
own through and after the date of such substitution or addition. The Benefitted Property shall be the
dominant tenement and the Property shall be the servient tenement for purposes of this ,pec aration.
(b) "Center" shall mean the office, hotel, retail, recreationalr apartment and
institutional area commonly known as Newport Center (including the shopping center knowr. as Fashion
Island) and generally lyirg within the area enclosed by Pacific Coast Highway, MacAr4hur Boulevard,
San Joaquin Hills Road and Jamboree .Road.
(z) "Declarant" shall mean The Irvine Company as identified above and its
successors, assigns or designees who shall assume the obligation and to whom The Irvine Company shall
specifically assign in writing the right to enforce these Restrictions, subject to the provisions of the
Section entitled "Assignment by Declarant."
(d) "Declaration of Easements" shall mean that certain Declaration of
Easements recorded October 31, 1995, as Instrument No. 19950484848 in the Official Record; of Orange
County and incorporated herein by this reference.
(e) "Drainage Easement" shall mean that certain permanent nonexclusive
easement for surface drainage from the Fee Property over certain adjacent real property more fully
described in the Declaration of Easements,
(t} "Effective Date" of this Declaration shall be the date this Declaration is
recorded in the official records of Orange County, California_
(g) "Fee Property" shall mean that portion of the Property conveyed in fee
by Declarant to Grantee more fully described on EXHIBIT C attached hereto.
(hi "Grantee" shall mean the Grantee identified above and each and every
successor, assignee, owner, lessee, licensee or other occupant of the Property, or any portion thereof or
interest therein, and each of them, during their ownership or occupancy thereof. However, such term
shall not include any person having an interest in all or any portion of the Property merely as security
for the performance of an Dbligation. Without Ginifing the generality of the foregoing, if Grantee leases
all or any of its interest in the Property, both the lessor and lessee under such lease shall be responsible
as principals (and not sureties) for compliance with all the terms and provisions of this Declaration.
(ii) "Gross Floor Arra" shall mean the aggregate number of sgt.are feet of
floor space on all Floor levels of any building, including mezzanines, measured from the interior face of
all exterior walls. No deductions or exclusions shall be made by reason of columns, stairs, elevators,
escalators, or other interior construction or equipment.
(j) !
11AC" shall mean Irvine Apartment Communities, L.P., a Delaware
limited partnership, or its successors or assigns_
(k) "IAC Benefitted Property" shall mean all real property in Orange
County, California, which IAC.currently owns, including without limitation the real property described
on EXHIBIT E attached hereto and by this reference made a part hereof, and which IAC Continues to
own at the time of enforcement of the restriction contained in Section 2.10) (No Apartment Use) below.
IAC shall have the right hyla duly recorded document to unilaterally substitute for or add to the IAC
13enefirted Property described on EXHIBIT E any real property in Orange County, California, which IAC
II I.MP"ASPLN5.MtSCJ —b" 10, I:X, bccl.niwn
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5-97
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owns as of the date bi this Development Declaration and continues to own through and after such
substitution or addition.
(1) "Joint Access Easements' shall mean that certain permanent nonexclusive
easement for access, ingress and egress by vehicles and pedestrians to and from the Fee Property and the o
adjoining public street over the Joint Access Easement Area more fully described in the Declaration of
Easements.
rpt
(m) 'Joint Access Easement Area" shall mean that certain real property r
Subject to the Joint Access Easement more fully described and depicted in the Declaration of Easements.
i
v
(n) "Rt friction" shall mean each and every covenant, condition, restriction, r
reservation, limitation or other provision of this Declaration.
Article 2. SPECIFIC RESTRICTIONS_ r1
i
2.1 Specific Facilities.
(a) Development and Continued Use. Grantee represents and agrees than
Grantee shall cause the Fee Property to be developed only with the specific facilities described on
EXHIBIT B attached hereto (the "Specific Facilities") and in full accordance with all of the terms of
this Declaration, and that Grantee shall cause the Fee Property and the Specific Facilities to be used solely
for the use described in EXHIBIT B (and no other use notwithstanding that other uses may be permitted
under applicable zoning ordinances), and in full accordance with all of the terms of this Declaration. W
portion of the Fee Property, or any :mprOvements thereon, or any portion thereof, shall ba developed.
used, operated or maintained with any facilities or for any purpose whatsoever except as set forth above
and in EXHIBIT B unless expressly Epproved by Declarant, which approval may be granted or withhelc
by Declarant in its sole discretion.
(b) Rectuired Improvements. In addition to any such facilities constituting
a pan of the Specific Facilities, Grartt;e shall construct and install all driveways, curb cuts, entryways,
sidewalks and the like, perimeter walls and fences, irrigation and drainage systems, landscaping,
monument, directional or other signs and all like improvements on the Fee Property or between the Fee
Property and adjoining sidewalks or t -ie curbs of adjoining streets, as necessary to the use of the Specific
Facilities or as required by any governmental authority with jurisdiction, To the extent that such
improvements are required to be installed (A) on a portion of the Fee Property adjoining any public street
or Sidewalk oI (B) between the Fee Property and adjoining sidewalks or the curbs of adjoining streets,
and if the governmental authorities da�not install the same, Grantee shall,'at its sole cost and expense,
also construct and install and thereafter repair and maintain the same; provided, however, that in the
alternative, Declarant may, at Deciaraw's sole option at any time and from time to time upon thirty (30)
days' prior written notice to Grantee,tonsti�i CM, install, maintain, repair, service, reconstruct, relocate
andfor replace any or all such improernents and Grantee shall promptly, reimburse Declarant for the
reasonable cost and expenses of such work within thirty (30) days of receipt of Declaram's invoice
therefor.
(c) Tram nation Corridor Fees. The Major Thoroughfare And Bridge
Program For The San Joaquin Transportation Corridor (the "Fee Program") has been adopted by' the
County of Orange and the City and the Property is subject to the provisions of such Fee Program. .The
Fee Program will result in additional Fees to be paid by Grantee as a condition to obtaining necessary
I n.1MPFT75Pta75 MMNa*.n+lrr LO, 1995 B 1brak,
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5-98
permits to construct Granfee's improv ehtents on the Fee Property. Grantee shall pay to Declarant l ny
San Joaquin Transportation Corridor Fees at least ton (10) days prior to the date such Corridor Fees re
due. Declarant shall make payment or such Corridor Fees or cause credits to be applied so as to sari fy
such Corridor Fees not later than the last to occur of (i) ten (10) business days after receipt of notice t at
such Corridor Fees are due or (ii) ten (10) business days after receipt of such Corridor Fees ft m
Grantee. Declarant shall indemnity and hold Grantee harmless, against any charges imposed or
Declarant's failure to satisfy such Corridor Fees if and to the extent that such Corridor Fees have been
timely paid by Grantee to Declarant in accordance herewith.
(d) No Aoartment Use. As set forth in the subsection above entitled
"Development and Continued Use," the Property, the Specific Facilities, and any other improvements
located thereon are to be used solely for the use described in EXHIBIT B and therefore, by way of
example only, no portion of the Property or any improvements thereon may be held, developed,
constructed, maintained, operated, used, leased or sold for rental apartment purposes at any time.
Furthermore, no portion of the Proper} or any improvements thereon may be so developed or used for
rental apartment purposes at any time prior to January 1, 2009 notwithstanding any amendment to this
Declaration or any other agreement tc that effect between Declarant and Grantee, without the express
written consent in each case of IAC, which consent may be granted or withheld by IAC in its sole
discretion. Declarant and Grantee hereby acknowledge that EAC is a third party beneficiary of the
foregoing special covenant, with full rights to enforce the same as if IAC were a third party to this
Declaration, and that such covenant slall run and pass with each and every portion of the Property for
the benefit of IAC, its successors and assigns, and the JAC Benefitted Property described on EXHIBIT E
attached hereto, it being intended for purposes of rhis paragraph that the dominant tenement shalt be the
IAC Benefitted Property and the servient tenement shall be the Property.
2.2 Declarant's AFpiovals_
(a) Approvals Required. Neither the Specific Facilities, nor any other
landscaping, grading or other improvements that have not first received the written approval of Declarant
or which do not comply with the plans and specifications approved by Declarant shall be made or
constructed in, ahout or on the Property_ Declarant shall not unreasonably withhold its approval of any
such site plan or plans and specifications so long as the site plan, plans aitd specifications and ileitis
described therein (i) are in harmony and conformity with other existing or proposed improvements on
or in the vicinity of the Property and with Declarant's master utility, circulation and general aesthetic,
and architectural plans and criteria for the Property and the general area in which the Property is located,
and (ii) comply with the other requirements of this Declaration.
(b) Time f]r Annrovals. Declarant shall approve or disapprove any plans
and specifications delivered to Declarani pursuant to this Article within thirty (30) days after receipt of
three copies thereof. If approved by Declarant, such approval shall be endorsed on such plan and
specifications and one set of such documents bearing Declarant's approval shall be returned to Grantee
within such thirty (30) day period. IFDecland"Ices not approve such plans and specifications, Declarant
shall within said thirty (30) day perioc notify Grantee of its reasons for not approving such plans and
specifications and Grantee shall, within thirty (30) days after receiving notice'of Declarant's disapproval,
submit new plans and specifications fof Declarant's approval. Failure of Declarant to approve or
disapprove any plans and specifications within said thirty (30) day period and Declarant's continued
failure to approve or disapprove for ten (10) days after Grantee's written notice to Declarant that
Declarant has failed to approve or disafprove as required herein (which notice shall also state that Failure
to respond within ten (10) days of this notice shall be deetned approval of the items submitted) shall be
deemed approval thereof_ The approval by Declarant of any plans and specifications pursuant to this
��� III.+,yT�PPAfy7�WS.i.ISRNpv,-,lyK, 10, 1947 �. ts,.l,�i'u,
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Section shall tie approval only as to their conformity with the master plan and general
architectural plan for the area. Such approval shall not be deenned approval for an
engineering design nor a representation or warranty by Declarant as to the adequacy or
such plaits and specifications or the grading, landscaping, improvements or construction
thereby for any use or purpose. By approving such plans and specifications, Declarar
liability or responsibility therefor or for any defect in any grading, landscaping, imp
construction made pursuant thereto.
and
or
V of
assumes no
vements or
I
(c) As Built Plans. Upon completion of the grading, landscaping and
construction of improvements, Grantee shall submit to Declarant two "as built" sepias and a. Certificate
of Compliance executed by Grantee's state -licensed consultant (engineer, architect and/or landscape
architect). The Certificate of Compliance shall warrant that the completed grading, landscaFing and
construction conforms to the pians and specifications therefor approved by Declarant.
2.3 Grantee's Cost_ The Specific Facilities, and all other landscaping, grading and
other improvements made or constructed in, about or on the Fee property as contemplated ,herein shall
be constructed, installed and completed at the sole cost and expense of Grantee and without any cost,
liability or expense to Declarant_
2.4 Fulfillment of Requirements_ Grantee shall be solely responsible, at its sole cost
and expense, to satisfy all requirements (both on-site and off-site requirements) which are attribttable to
Grantee's development of the Fee Property or use of the Property, including but not limited to (i) the
costs incurred in satisfying conditions or requirements applicable to the Property imposed by applicable
governmental agencies, (ii) requirements or conditions relating to traffic or roadway fees or
improvements, (iii) affordable housing requirements, (iv) school fees, (v) San Joaquin Transportation
Corridor Fees, (vi) public park dedications or fees, (vii) library fees, (viii) capital improvement fees, and
(ix) all other fees and charges associated with or attributable to Grantee's development of the Fee
Property or use of the Property, Except as provided in this Declaration, Declarant shall not be required
to make any improvements, pay any fees or otherwise satisfy any requirements or conditions pertaining
to the Property, including without limitation Declarant shall not be obligated to make any improvements
to the Joint Access Easement P.rea. Furthermore, Grantee shall have no right to make any improvements
to the Joint Access Easement Area.
2.5 Compliance with Law.
(a) Grantee to Comply. The Specific Facilities and all other landscaping,
grading and other improvements made or constructed in, about or. on the Fee Property, and the use
thereof, shall comply at all tries with all public laws, ordinances and regulations applicable thereto.
Without limiting the generality of the foregoing, Grantee shall obtain, at its sole expense, all
governmental approvals and permits which may from time to time be required with respect to the
performance contemplated under this Declaration, including, as applicable and without limitation,
appropriate zoning, building permits, permits from the California Coastal Commission, operating and
business licenses and permits and the like. In obtaining such approvals and permits, Grantee shall
prepare as necessary and without lin ilation, all environmental impact reports, engineering studies and
the like as necessary.
(b) Approvals of Applications. All requests or applications, togethe- with
all supporting documentation, for governmental approvals or permits which require discretionary action
on the part of a governmental agency, shall be submitted to and coordinated and approved by Declarant
prior to filing with the governiiental agency. Declarant shall have a period of thirty (30) days after
_
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receipt to disapprove any i-equests or applications so subinilled by Cranlee, and in f lc event of
disapproval shall specify the reasons therefor. Failure to disapprove within such thirty (30; day period
and Declarant's continued fai' ure to approve or disapprove for ten (10) days after Grantee`s w! itten notice
that Declarant has failed to approve or disapprove as required hereunder (which notice Ah 11 a'so state
that failure to respond within ten (10) days of this notice shall be deemed approval of the iteni suhmitted)
shall be deemed approval thereof. Declarant shall receive copies oral] written communicathtYes between
Grantee and the governmental agencies processing such requests or applications.
2.6 rInfer.tionallVOmitted_i
2.7 Bonds.' Before the commencement of any of the work required under this Article
2, Grantee shall furnish to Ecciarant true copies of any and all labor and material bonds and faithful
performance bonds, if any, required of Grantee by any governmental agency concerning such work.
2.8 Tram4ers.
(a) 'Transfers Prohibited. For a period or not less than sixty (60) years after
the Effective Date, Grantee shall not sell, lease, convey, exchange, encumber or otherwise transfer the
Property or any portion thereof or interest therein or facilities thereon, whether by agreement for sale or
in arty other manner (herein collectively referred to as a "transfer") without first giving Declarant at least
sixty (60) days' prior written notice of all terms and conditions of such proposed transfer and the right
to (i) approve or disapprove such transfer, (ii) exercise its option to repurchase set forth in Section 5.3
below, or (iii) exercise its right of first refusal set forth in Article 4 below. Declarant in its sole
discretion may within such sb4 (60) day period exercise any such right_ If Declarant approves of a
transfer, then Declarant shall not exercise its right of first refusal or its option to repuichase. Dec:arant's
failure to so act within such sixty (60) day period shall be deemed to constitute approval of the transfer
on the terms and conditions proposed by Grantee. The transfer, assignment or hypothecation, directly
or indirectly, whether in onte transaction or a series of transactions, of more than twenty -Five percent
(25%) of any equity membership. stock, partnership interest or other interest in Grantee shall be deemed
a "transfer" within the meaning and provisions of this Section. Any time after the sixtieth (60th)
anniversary of the Effective Date, Grantee may transfer dee Property without Declarant's approval under
this Section and without regard to Declarant's option to repurchase set forth in Section 5.3 below or
DeclaranPs right of first refusal set forth in Article 4 below_ Grantee hereby acknowledges that it would
be reasonable and appropriate for Declarant to disapprove a transfer and exercise its option to repurchase
and/or right of first refusal if the proposed transferee is not adequately experienced, knowledgeable and
financially capable to own and operate an an museum which provides for local cultural enrichment.
i.
(b) Permitted Transfers. Notwithstanding the foregoing, Grantee may
consummate (i) encumbrances on the Property as security for an interim or permanent loan or loans made
in good faith and for value by an institutional lender, the proceeds of which are used only --or the
construction of the Specific Fa'i.lities C refinancing of such a construction loan or for any other museum
purposes of Grantee, and (ii) mergers of Grantee with another entity or entities which havea museum
operation substantially similar no the museum operation ofGrantee (collectively, "Permitted Transfers").
Prior to entering into a binding agreement to effect any merger permitted pursuant to subsection (ii)
hereof, Grantee must notify Declarant of its intent to effect such a merger and to solicit the input of
Declarant with respect to such proposed merger; provided, however, (A) Declarant shall keep such
information confidential, and (B) Declarant's right to provide input does not include any right to
disapprove or prohibit such meri ger.
2.9 Subw6nation. Subject to the following provisions and the provisions of Section
halarnim
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5.7 hereof, De,larant will subordinate Veclarant's right of first refusal contained in J'rtic'e 4, the
mortgage lien contained in Section 5.1(d), and the option to repurchase contained inn Section 5.3
(collectively, the "Enforcement Rights") to any encumbrance referred to in Section 2.8(b)I imr_tediately
above (which Section 2.8(b) shall continue in effect even after Section 2.8 no longer has aft applicatintl
to this Declaration, for purposes only of describing the encumbrances to which Declarant ill continue
to subordinate certain of its rights as set forth in this Section) provided that the principal aritoum of any
such loan secured by an encumbrance upon the Property and/or the improvements construlctec thereon
does not, in combination with other encumbrances then placed on the Property and/or the improvements
constructed thereon, exceed at any time seventy-five percent (75%) of the fair market ;value of the
Property and any improvements thereon, valued taking into acrouht the restrictions cont4ined in this
Declaration, and such loan 'is at commercially reasonable interest rates and otherwise contains
commercially reasonable ten-rs and conditions. Grantee will provide Declarant with appraisal, information
from a reputable IVi_A.1_ appraiser or from an institutional tender reasonably satisfactory to Declarant
to verify that the total loan -w -value rate does not exceed seventy-five percent (75%). No foreclosure,
trustee's sale or deed in lieu of foreclosure with respect to any such permitted encumbrance shall be
deemed an "assignment" for purposes of this Section. Within ten (10) working days after receipt of the
following items, provided the foregoing requirements have been satisfied and provided there is no default
under any provision of this Deelaration or under any other obligation between Declarant and Grantee
relating to the Property, Declarant shall execute, acknowledge and deliver to Grantee an instrument in
substantially the form attached, hereto as EXHIBIT D effecting such subordination
(i) A true and complete copy of Grantee's executed mortgage or deed
of trust and note secured thereby, and all other instruments evidencing or securing the indebtedness
evidenced by said note. The mortgage or deed of trust encumbering the Property must not secure any
obligation or indebtedness nDt related to development of the Property, and neither the note nor the
mortgage nor deed of trust shall contain any provision making it a default thereunder if the obligor or
any other parry defaults in ary obligation not related to the development or use of the Property.
(ii) A preliminary tide report dated not earlier than fifteen (15) days
prior to submittal showing ao title exceptions other than those in existence at the time Declarant
transferred the Property to G-arttee, other utility easements reasonably necessary to serve the Property,
and other matters approved by Declarant;
(iii) A copy of the executed loan agreement or other agreement
pertaining to the disbursemem of funds, which must provide in a rnanner satisfactory to Declarant that
the funds disbursed thereunderwill be used only to improve and benefit the Property, or to. refinance a
loan made for such purpose (n: an amount not to exceed the amount outstanding under the cons -ruction
loan refinanced); and
(iv) n copy of a Request for Notice of Default pursuant to Section
2924b of the California Civil Lode prepared for execution and acknowledgment by Declarant which,
when recorded at the expense of Crani -e, will entitle Declarant to the notices prescribed by said Section
2924b_ V.
The first such recordable instrument requested by Grantee shall be executed by
Declarant Free of charge upon the satisfaction of the above conditions. Thereafter Declarant may at its
option require a payment by Grantee of One Thousand Dollars (S1,0i10.00) as a condition to the execution
of each subsequent recordable instrument.
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Article 3, GENERAL RESTRICTIONS.
3,1 Unarmroyed Develonnient or Use, Unless expressly approved by Decgrant,
which approval may be withheld by Declarant in its sole discretion, Grantee shall not peril it the
construction, maintenance, operation or use of any structure or improvements on the Fee Proper(y, nor
the use of the Jomt Access Easement, not in Rill compliance with all requirements of the lav(, this
Declaration and any other covenant;, conditions and restrictions from time to time covering the Property.
3.2 Floor Area Limitation. As described in Section 1.2 above, Buyer understands
that the development potential of the Benefirted Property and of other lands ovvned by Declarant will
depend in part on the intensity of cevelopment and use of the Property. Accordingly, Buyer covenants
that without the prior written consent of Declarant, which consent may be withheld by Declarant in As
sole discretion, in no event shall the collective Gross Floor Area of the Specific Facilities excekd fie
permitted maximum Gross Floor Area specified in EXHIBIT B.
3.3 General Maintgnance. Grantee shall maintain the Fee Property in a clean,
sanitary, orderly and attractive condition, free of weeds, debris and pests_ Grantee shall at all timos
maintain the Specific Facilities, ari all other improvements from time to time located on the F.e
Property, including without limitation the landscaped areas, in first class condition, order and repair.
Grantee shall not construct any new improvements on the Fee Property or make any additions, alterations
or other modifications ("alteration") of or to the exterior of the Specific Facilities or the visible portions
of any other improvements from tame to time located on the Fee Property, without the prior wrinen
consent of Declarant. All new construction and all such alterations shall be subject to the provisions :)fArticle 2 hereof. As used in this Section the "exterior" of the Specific Facilities shall mean all roofs,
outside walls and facades, strucmra' foundation, entrance doors, windows, outside walkways, ramps and
other accessways, and parking facil"ties, and "alterations" to "other improvements" shall include without
limitation all additions, removals and replacements of large plantings,
3-4 Restoration. If any building or improvement on the Fee Property, or any part
thereof, or any landscaping installed upon the Fee Property, shall be damaged or destroyed by fire or
other casualty, Grantee shall at its cost and expense either (i) repair or restore the same according to the
original plans thereof or to such modified plans as shall be previously approved in writing by Declarant
as provided above, or (ii) demolish such damaged or destroyed improvements and leave the Fee Proper_y
(or applicable portion thereof) in a clean and safe condition_ Such repair,restoration or demolition shall
be commenced within one hundred twenty (120) days after the damage or loss occurs and shall be
completed with due diligence but not longer than one (1) year after such work is commenced, The time
periods specified in this subparagraph entitled "Restoration" shall be extended as provided in the Sectioo
of this Declaration entitled "Unavoidable Delay."
3.5 Drainage. Grantee shall not drain or discharge water from the Fee Propery
(including but not limited to rain water and: water from landscape sprinkler systems located on the Fee
Property) on to adjacent land except as follows: Grantee shall at all time§ cause tine Fee Property to be
graded and drained so as to cause (Le discharge of all water from the Fee Property onto the public stre`t
adjoining the Fee Property, or into an established drainage facility approved by the City, if any, on or
adjacent to the Fee Property, or in a_eordance with the Drainage Easement. Declarant acknowledges that
the current drainage from the Fee Property and the existing improvements thereon is acceptable 'o
Declarant.
3.6 [lntentionaEy Omitted.]
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3.7 SigM. Grantee shall not place or use any signs, banners, balloons, displays syr
other advertising media in, on, about cr above the Property or on or in any improvements constructed
or placed thereon unless it has first obm ned the prior written consent of Declarant as to the number,
location, height, illumination, color and design of such signs or other media. Declarant shall ttit
as
unreasonably withhold such approval so long such signs or other I
r media (a) comply with (i) Declarans
sign program for the Property, the property surrounding the Property and the Benefitted Property, if an+ .
and (ii) the statutes, ordinances or regulations of any governmental entity or agency having jurisdicti(in
thereover and (b) are in harmony and conformity with the existing or proposed improvements on or in
the vicinity of the Property and with De'aarant's general aesthetic and architectural pians and criteria for
the Property and the general area in wt ich the Property is located. Except as provided in this Section,
no sign, banner, balloon, display or otter advertising media which is visible from adjacent land or any
public or private street shall be maintained in, on, about or above the Property or on or in any
improvements constructed or placed thereon_
3.8 Prohibited Operations and Uses. No use or operation shall be made, conducted
or permitted on or with respect to all of any pan of the Property or improvements thereon which is
obnoxious to or out of harmony with the residential and/or commercial neighborhood in the vicinity of
the Property. Included among the uses or operations which are prohibited and are deemed to conflict
with the reasonable standards of appearance and maintenance required hereby, are uses or operations
which produce or are accompanied by the following characteristics, which list is not intended to be all
inclusive,
(a) Any public or private nuisance;
(b) Any vibration, noise, sound or disturbance that is objectionable due to
intermittence, heat, frequency, shrillness or loudness;
(c) Any direct lighting which is not shielded and confined within site
boundaries-,
(d) Any emission of odors, noxious, caustic or corrosive matter, whether
toxic or nontoxic;
(e) Any litter; dust, din or ash in excessive quantities;
(f) Any use of a structure of a temporary character, trailer, tent, shack,
garage, barn or other outbuilding. Ne trailer, camper, bus, automobile, motorcycle, boat, or other
vehicle or equipment shalt be permittec to remain upon the Property except when parked on regular
paved parking area during normal busin_ss hours and incident to the uses of the Property contemplated
by this Declaration;
�y
(g) Any raising, breeding or keeping of animals, livestock or poultry of any
kind; provided, however, that live animals may be permitted within the interior of the Specific Facilities
screened from view from the outside if. (i) the presence of such live animals is not prohibited by
applicable governmental authorities; (ii) the presence of such live animals is in conjunction with an art
exhibition and (iii) no noxious or objectionable smells or sounds shall emamfe from the interior of the
Specific Facilities-,
(h) Any clotheslines, woodpiles or fuel storage of any type;
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(i) An} accumulation of rubbish, trash or garbage. All refuse containers,
air conditioning devices, utility areas, storage areas and machinery and equipment shall be prtrhibited
upon the Property unless screened from view from all adjoining lots and public and private streets;
0) Any exterior radio antenna, television antenna, "C.8_" antenna, "s,atel ite
dish," microwave transmitting or teeeiving antenna or other antenna, transmitting or receiving device of
any type unless it is (i) screened frnm view from all adjoining lots and public and private streets, and {ii)
approved in writing by Declarant, which approval may be withheld by Declarant in its sole discceticn;
(k) Any electro -mechanical or electro -magnetic disturbance or radiation; end
(1) Any business that is sexually oriented, such as businesses offering nLde
or semi-nude entertainment, massage parlors, Escott services, adult theaters andlor book stores, and
similar businesses.
Ary screen required under this Section shall consist of permanent
landscaping and/or improvements cgmplying in all respects with the provisions of Sections 2.1 and 2.2
above and be approved in writins by Declarant_ The provisions of this Section entitled "Prohibited
Operations and Uses" shall not in any way supersede the other Restrictions_
3.9 No Subdivision. Grantee shall not effect any change or amendment to any map
or lot line adjustment covering the Property or record any parcel or final map or lot line adjustment of
the Property or any portion thereof or facilities thereon pursuant to the California Subdivision Map Act
(California Government Code Section 66410 et seq.) or any similar or successor statute he�,:eafter enacted'
and/or any similar local ordinances,'or file any tentative maps or applications with respect thereto with
any governmental agency, nor shat: Grantee file or record a condominium plan covering the Property -0r
any portion thereof or any improvements thereon or any applications with respect thereto, or (b) take any
action to cause the Property or anyrtion thereof to be or become a "common interest development"
(as defined in California Civil Code Section 1351(c) or any similar or successor statute), unless expressly
approved by Declarant, which approval may be withheld by Declarant in its sole discretion.
3.10 ZoninE. Grantee shall not use or develop or attempt to use or develop the
Property or any portion thereof for any purpose other than those purposes, expressly allowed (without vie
benefit of a zoning variance, exception or other special administrative procedure) under the zoning
ordinance or ordinances of the governmental entity having zoning jurisdiction over the Property.
Additionally, Grantee shall not at any time change or attempt any change in zoning, or obtain or apply
for a conditional use permit, zomn,;'variance or exception, or other similar approval with respect to the
use or development of the Property or any portion thereof not expressly allowed under such existing
zoning ordinance, unless expressly approved by Declarant, which approval may be withheld in its scle
discretion, Notwithstanding the foregompL Declarant shall not unreasonably withhold its consent to
Grantee's application for such con3itional use permit as may be required for development of the Fae
Property with the Specific Facilities, Grantee shall obtain Declarant's consent prior to submitting asp
such application or related documents to any governmental agency and thereafter will submit copies of
all such documents to Declarant for Its review and in€ormation.
3.11 A§scssment Districts and Associations. The Property is within Newport Mesa
Unified School District Community Facilities District No_ 90-1 andutay be included within such
additional future assessment districts,'landseape maintenance districts andlor community facilities districts
as may be created from time to time to pay for the installation and maintenance of certain roads,
.._ ersections, overpasses, freeway interchanges, Flood control facilities, community or municipal facilitis
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(such as fire or police stadors, schools or public library facilities) and other offsite oil related
improvements. The Property may also be included within one or more membership association as may
be created from time to time for the purpose of providing for Elie installation and mainte anee of
landscape improvements, private 5[rects, monuments, signs and other improvements constructed or io be
constructed in connection with tte development of surrounding areas. Grantee shall be fully resi:potuible
for the payment of its pro rata s-iare of all assessments imposed with respect to the Property b' reason
of any such district(s) or associat on(s). Grantee will cooperate in good faith as the owner of the Property
with Declarant in the formation cFany such district(s) or association(s), and hereby covenants to sign and
deliver such further documents aab take such further action as may be reasonably required in connection
therewith. Grantee Further covenants as the owner of the Property not to oppose, protest or object to the
formation of any such district(s) or association(s), regardless of whether or not the same will directly
benefit Grantee or the Property- provided that nothing herein shall be construed as (a) a prohibition
against a protest by Grantee of the proportion of any assessment which may be allocable to or assessed
against the Property or any other property owned by Grantee by any such district(s) or associatibn(s), or
(b) a waiver of any rights of Grantee as the owner of any other property to oppose, protest or objet to
the formation of any such distric.(s) or association(s).
3.12 indemnity: Declarant and Declarant's divisions, subsidiaries, partners and
affiliated companies and its and their past, present and future employees, officers, directors, shareholcers,
agents, representatives and professional consultants and its and their respective successors and assigns
(collectively, the "Indemnitees") shall not be liable for any loss, damage, injury or claim of any 'kind
or character to any person or property arising from or caused by (a) the development, maintenance, use,
lease or other conveyance of the Fee Property or improvements thereon or any portion thereof or interest
therein, including, without limitation, any loss, damage, injury or claim arising from or caused by or
alleged to arise from or be caused by (i) any use of the Fee Property or any part thereof, (ii) any defect
in the design, construction of, or rnatertal in any structure or other improvement upon the Fee Property,
(iii) any defect in soils or in the preparation of soils or in the design and accomplishment of grai:fing,
(iv) the presence or existence of any contaminants or hazardous or toxic substances, materials Or waste
in or on the soil or ground water or the improvements on the Fee Property, whether known or unkn3wn
and whether resulting from occurrences prior to or after the Effective Date, such as but not limited to
asbestos in the building located on the Fee Property, including without limitation liability under the
Comprehensive Environmental Response, Compensation and Liability Act, the California Environmental
Quality Act or any other law, (hr) any act or omission of Grantee or any of its agents, employ. -es,
licensees, invitees or contractors, (vi) any accident or casualty on the Fee Property, (vii) any
representations by Grantee or any of its agents or employees, (viii) any violation or alleged violation by
Grantee, its employees or agents C -f any law now or hereafter enacted, (i[) any slope failure or subsur.'ace
geologic or groundwater Condition, (x) any work of design, construction, engineering or other work with
respect to the Fee Property provided or performed by or for Declarant either before or after the Effective
Date hereof, (xi) the act or omission of any membership association or conmtittee, officer, agent or
representative thereof relating to the Fee Property or the improvements' thereon or the occupancy or use
thereof, whether or not Declarant or any the other Indemnitees are on the board of directors of such
association or are on a committee - hereof or are an officer, agent or representative thereof, (xii) any other
cause whatsoever in connection with Grantee's use of the Fee Property, or Grantee's performance urder
this Declaration or any other agreement with Declarant relating to the Fee Property, (xiii) the application
of the principles of strict liability with respect to any act or omission of Grantee or its agents, employees,
licensees, invitees or contractors i -i connection with the ownership, use or occupancy of the Fee Property
after the date hereof, or (xiv) the application of the principles of strict liability with respect to Grantee
or Declarant or their respective agents, employees, licensees, invitees ar contractors in connection with
the grading of the Fee Property, and/or the existence of any contaminants or hazardous materials in or
on the soil, (b) the negligence or wilful misconduct of Grantee or its employees or agents; in the
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W
development, construction, grading is other work performed off the Fee Property by Graince puri;uaix
to this Declaration or any defect In any such work, (c) the breach by Grantee of any of its obliga�ioni
under this Declaration, (d) the use c f the Joint Access Easement by Grantee, its employees, licen; ees.
invltces, agents or other users of ti -c Joint Access Easement, including, without limitation, any oss,
m
daage, injury or claim alleged to anise from or be caused by any use of the Joint Access Easetite�i t or
any part thereof, or (e) except as otherwise provided in Section 3.5 hereof, the use of the Draihage
Easement by Grantee, including, without limitation, any loss, damage, injury or claim alleged to fi
; sc
from or be caused by any use of the Drainage Easement or any part thereof, Funllerniore, as a material
part of the consideration of this Deear4tion, Grantee hereby waives oil its behalf all claims and demands
against Declarant and the other Indemnitees for any such loss, damage, or injury of Grantee, and agrees
to indemnify, defend and hold harmless Declarant and its property, and the other indemnitees from all
loss, liability, damage, costs and expenses (including attorneys' fees) arising from or related to any such
lass; damage, injury or claim, whether incurred or made by Grantee, Declarant, the Indemnitees or any
other person(s). The foregoing waiver and indemnity shall apply to a claim or action brought by a
private party or by a governmental agency or entity under any statute or common law now or lie reina iter
in effect, and shall apply to losses, damages, injuries or claims incurred directly by Declarant or any
other Indemnitee_ With respect to design, construction methods, materials, locations and other matters
for which Declarant has given or will give its approval, recommendation or other direction, the foregoing
waiver, indernnity and agreement shz-l[ apply irrespective of Declarant's approval, reconiniendadon or
other direction. Notwithstanding anything to the contrary above, nothing contained in this Section shall
operate to (a) relieve any Indemnitee from any loss, damage, injury or claim ultimately established by
a court of competent jurisdiction to have been caused solely by the gross negligence or willful misconduct
of such Indemnitee, or (b) relieve any prior owner of the Property from any loss, damage, injury or claim
for any contaminants or hazardous or toxic substances, materials or waste in or on the soil or ground
water or the improvements on the Fee Property arising from the use of the Fee Property by such prior
owner. Grantee's covenants in this Section arising from or related to acts or occurrences during the time
of Grantee's ownership shall survive the lease or other conveyance of all or any part of the Property or
improvements thereon and shall be binding on Grantee (as well as its successors to the Property) until
the last to occur of such date as action against the Indemnitees is absolutely barred by an applicable
statute of limitations or such date as all claims and actions for which indemnification may be claimed are
fully and Finally resolved and, if applicable, all compromises thereof and judgments and awards thereon
are paid in full and the Indemnitees, and each of them, are reimbursed for all amounts paid by them in
the compromises thereof and upon the judgments and awards thereon and in defense of such actions and
claims, including actual attorneys' fee's. If any action or proceeding shall be brought against an
Indemnitee for which Grantee is to provide indemnification. Grantee, upon notice from the Indemnitee,
shall defend the same at its expense b} counsel approved in writing by such Indemnitee, Payment shall
not be a Condition precedent to recovery under any indemnification in this Declaration.
Article 4. DECLARANTS RIGHT OF FIRST REFUSAL
Except with regard we "Permitted Transfers" described in the Section above
entitled "Transfers," if at any time prior to the sixtieth (60th) anniversary of the Effective Date Grantee
shall determine to sell all or any part of the Propeny or the improvements thereon or any interest therein
("Interest"), Grantee shall notify Declarant of the price and the terms on which Grantee will be willing
to sell and all relevant information which would reasonably be relied upon in evaluating whether to
acquire the Property (including but not limited to a recent preliminary title report, a list of known
litigation, notices, citations and other material matters affecting the Property, and the most recent
Environmental Site Assessments obtair_ed by or in the possession of Grantee concerning the Property.)
If Declarant, within sixty (60) days afi;t receipt of Grantee's notice, indicates in writing its agreement
to purchase said Interest for rite price and on the terms stated in Grantee's notice, Grantee shall sell and
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convey the Interest to Declarant far the price and on the terms Stated in such notice. If Declara it does
not indicate its agreement within such sixty (60) day period, Grantee thereafter shall have the right to sell
and convey the Interest to a third party, but only for a price not less than the price offered to Declarant
and on terms not more favorable Clan those stated in the notice. If Grantee does not so sell andomey
the Interest within one hundred Eighty (180) days after Grantee's notice, any further trans coons
(including a transaction on the sarre' price and terms previously submitted to Declarant) shall be deemed
a new determination by Grantee to sell and convey said Interest, and the provisions of this Article shall
again be applicable. The obligatiDns of this Paragraph shall survive any sale of the Property 4nd be
binding upon Grantee and its 5u�c=ors and assigns,
Article 5. REMEDIES.
5.1 Default and Genefal Remedies. In the event of any breach, violation or failure
to perform or satisfy any of the Restrictions which has not been cured within the applicable cure peri7d
as set forth below, Declarant at Vs sole option and discretion may enforce any one or more of the
following remedies or any other riots or remedies to which Declarant may be entitled by law or equity,
whether or not set forth herein_ Unless a cure period is otherwise specifically designated, Such cure
period shall commence when written notice is given to Grantee of a violation hereunder and shall end ten
(10) days thereafter in the case of a monetary default and thirty (30) days thereafter in the case of a non -
monetary default; provided that if a non -monetary default is not reasonably susceptible of cure promptly
within the thirty (30) day period, 'hen Grantee shall have a reasonable time to cure same so long 3s
Grantee has commenced such cure promptly within the thirty (30) day period and thereafter diligently
prosecutes the cure to completion. To the maximum extent allowable by law, all remedies provided
herein or by law or equity shall be 'cumulative and not exclusive; provided, however, that except as
provided in the following sentence ai the event Declarant elects to exercise any remedy pWvided for n
Section 5.3 hereof based upon a panicular violation of the Restrictions, such remedy shall be Declarant's
sole and exclusive remedy for such violation of the Restrictions, although such remedy may be sought
in the alternative with other available remedies in any legal action. Notwithstanding the foregoing.
Declarant's remedies for a violation or breach of Section 3.12 (Indemnity) shall be cumulative with and
in addition to its remedies for other violations or breaches under this Declaration,
(a) Damages_ Declarant may bring a suit for damages for any compensable
breach of or noncompliance with any of the Restrictions, or declaratory relief to determine the
enforceability of any of the Remriciwns.
(b) Eauity, It is recognized that a particular or ongoing violation by Granter
of one or more of the foregoing Restrictions may cause Declarant to suffer, material injury or damage nct
compensable in money (including, but not limited to irreparable effects on the type and quality of
development on and use of the Benefitted Property or portions thereon), and that Declarant shall be
entitled to bring an action in equity ox ;otherwise for specific performance to enforce compliance with the
Restrictions or an injunction to en}oai the c6 inuance of any such breach or violation thereof, whether
or not Declarant exercises any other remedy set forth herein.
(c) Abatement. Any such breach or violation of these Restrictions of any
provision hereof is hereby declared to be a nuisance, and Declarant shall be entitled to enter the Property
and summarily abate and remove, wi:hout further legal process to the maximum extent permitted by law.
any structure, thing or condition that may exist in violation of any of these Restrictions, or to prosecute
any remedy allowed by law or equity for the abatement of such nuisance against any person or entity
acting or failing to act in violation ad these Restrictions, all at the sole cost and expense of Grantee or
any person having possession under Grantee. Any costs or eKpenses paid or incurred by Declarant it..
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abating such nuisance or prosecuting any such remedy (including all. reasonable ,atturneys' �ees and costs
of collection),-ogether with interest thereon at the maximum contract rate then permitted by aw, shall
be a charge against the Property, shall be a continuing lien thereon until paid, and shall also be the
personal obligation of Grantee or other person who was owner of the Property when such chrges became
due and who committed such breach or violation.
(d) Mortgage Lien. All costs, expenses, interest, fees ant ot:ier sums
required to be paid by Grantee to Declarant hereunder shall be secured by this Declaration and Grantee
hereby mortgages the Property and all improvements thereon to Declarant with power of safe in
accordance with Sections 2420 et seq, of the California Civil Code,and ail other applicable statutes, for
the purpose of securing all said sums. Foreclosure of such mortgage lien, by judicial foreclosure or
under power of sale, to recover any such amount owed shall not extinguish the lien or any prevision of
this Declaration, but shall only extinguish the mortgage lien created herein as it applies to or secures
amounts due hereunder as of the date of foreclosure and the mortgage lien created herein shall continue
to exist for the purpose of securing any further amounts required to be paid hereunder by Grantee's
successor (whether a successor by any such foreclosure sale or otherwise) to Declarant under this
Declaration_ Foreclosure of such mortgage lien shall not extinguish a lien which arises from a violation
of any provision of this Declaration after such foreclosure even if such violation is a continuing violation
which also existed prior to ue Foreclosure_
(i) Power of Sale. to the event Grantee fails to pay all or any portion
of the indebtedness secured hereby within the applicable cure period therefor, then Declarant may
immediately cause a written 'notice of default and election to sell the Property (herein, "Notice of
Default") to he prepared and filed for record in the Office of the Recorder of Orange County. After
three months or such shorter time as may be allowed by law shall have elapsed from the recordation of
such Notice of Default, and after a notice of sale has been given to the extent required by the then
applicable law, Declarant, Mthout further legal action or demand on Grantee, may cause the Property
to be sold at such time and plate as may be fixed in said notice of sale or at such time and place :o which
the sale may be postponed as hereinafter provided without additional notice, either as a whole or in
separate parcels, and in such order as Declarant alone may determine, at public auction to the highest
bidder for cash in lawful money of the United States at the time of sale, or upon such other terms as
Declarant may consider advisable. Grantee shall have no right to direct or determine whether the
Property shall be sold as a whole or in separate parcels, or the order of sale of separate parcels or the
portion of the Property to be sold if only a portion is sold. Declarant may postpone the sale of the
Properly by public announcement thereof at the time and place of sale and from time to time thereafter
by public announcement at the time and place of the preceding postponement. in conducting or
postponing any such sale, Declarant may act through its agents, officers or employees or any other person
designated by Declarant, wt -ether or not such party shall be a licensed auctioneer. At such sale,
Declarant shall cause to be delivered to the buyer or buyers one or more duly executed deeds conveying
the property so sold, subjeck to all the provisions of this Declaration, but without any covenant or
warranty, either express or implied. The recitals in such deed or deeds with regard to any matters of fact
shall be conclusive proof of the truthfulness thereof against the buyer at such sale, its successors and
assigns, and all other persons. Any Terson, including Declarant, may bid in or purchase at su;h sale.
Grantee hereby agrees to surrender, immediately and without demand, possession of said property to the
buyer at such sale. No such sale shall release or extinguish any rights, remedies or provisions contained
in this Declaration in the event of any further violation of any Restriction set forth herein -
(i i)
erein_
(ii) Application of Proceeds,
such sale in the following manner and order:
111 17TTFINSPLN5. At5(?SAnm I- IU, 045
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tit
Declarant shall apply the proc_eds of
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(A) Expenses of such sale and all costs, fees,
expenses Of Declarant, including costs of evidence of title and reasonable attorneys' fees,
(B) All sutras secured hereby; and
ane
(C) The remainder, if any, to the person or persons le ally
entitled thereto.
(iii) Foreclosure by Court Action. In addition to the foregoing,
Declarant may foreclose the lien erea:ed hereby by court action in the manner provided by the laws then
applicable to this indenture, in which case Grantee agrees to pay all costs and expenses thereof, including
reasonable attorneys' fees as the courtmay determine.
(iv) Waiver of Statute of Limitations. To the maximum extent
permitted by law, Grantee expressly waives the benefit of and the right to plead and in any way take
advantage of any and all statutes of I mitation, both as to the indebtedness secured hereby or any other
provision hereof, and Grantee will upon request of Declarant execute and acknowledge (if necessary)
further written extensions or waivers of the applicable statutes of limitations with respect to payment of
any indebtedness secured hereby and interest thereon.
(v) Notice of Sale_ Grantee hereby requests that copies of the Notice
of Default and any notice of sale here.tnder be mailed to it at the address set forth below in Section 8.7.
Grantee agrees that any such notice or demand shall be deemed fully given to Grantee if mailed to it by
registered mail at such address, or anymore recent address delivered to Declarant as provided below.
5.2 Inspection. E-eclarant or its authorized representatives may from time to. time,
at any reasonable hours, enter upon and inspect the Property, site or any portion thereof or improvements
thereon to ascertain compliance with the Restrictions, but without obligation to do so or liability therefor.
5.3 Oxon. Upon any proposed, attempted or actual "transfer" in violation of the
provisions of Section 2.8 above and upon any violation of the Restrictions itemized in Section 2.1(a)
above (Development and Continued Ise), Declarant, in its sole option and discretion, shall be entitled
to repurchase the Property as provided below_
(a) Grant ofQption. Grantee hereby grants to Declarant an exclusive option
to repurchase the Property subject only to:
(i) Current taxes not yet delinquent,
(ii) Matters affecting title existing at the Effective Date of this
Declaration, excluding any mortgage, deed of trust or similar instrument to which Declarant has
subordinated the Enforcement Rights Fulsuanita Section 2.9 above;
(iii) Matters affecting tide which are created, made, assumed,
consented to or requested by Declarant. Sts successors or assigns, excluding any mortgage, deed of trust
or similar instrument to which Declarant has subordinated the Enforcement Rights pursuant to Section
2.9 above;
(iv) Matters shown as printed exceptions in the standard form
California Land Tide Association owner's policy of title insurance; and
-
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(v; Noninterfering easements for utilities used in connection
improvements constructed on the Property,
nhe
(b) Exercise of Option. Declarant may exercise its option to repurch se the
Property by giving written notice to Grantee of Declarant's election to repurchase within (i) sixiy (60)
days after receipt of Grantee's notice ofproposed "transfer" as provided in Section 2.8 (Transfers) �bove,
(ii) within ninety (90) days after D'cbarartt receives actual notice of any transfer or attempted transfer in
violation of any provision in Section 2-8, or (iii) within ninety (90) days after Declarant receives',actual
notice of Grantee's violations of Section 2.l(a). For purposes of this Section 5,3, Declarant's actual
notice shall mean the actual noticr, to the corporate officer or project manager of Declarant having the
responsibility of administering sales! of properties adjacent to and including the Property or the person
to whom notice may be addressed under Section $-7 of this Declaration, and no other persons. No tails re
of Declarant to exercise its option Qi the event of any proposed, attempted or actual "transfer" (whether
approved by Declarant or not) in violation of Section 2.8 above shall constitute a waiver of Decigram's
rights to exercise the option upon any such transfer subject to Section 2.8 which might be proposed,
attempted or consummated at a lata time. No failure of Declarant to exercise its option in the event of
Grantee's violation of Section 2.1(a) shall constitute a waiver of its right to exercise the option upon a
subsequent or continuing violation of Section 2.1(a).
(c) Restoration; Grantee's Improvements_ Within ninety (90) days aft_r
notice by Declarant of exercise of its option, Grantee at its sole cost and expense (i) may remove from
the Fee Property all structures, buildings, pavings, landscaping and other improvements (collectively, the
"Grantee's Improvements") and all materials of whatever nature deposited by Grantee at any time
hereafter upon the Fee Property, ar.d (ii) shall restore the Fee Property to at least as good condition as
existed at the Effective Date hereof. All of such work shall be accomplished to the sale but reasonab e
satisfaction of Declarant_ If the Fee Property is not so restored, then Declarant may accomplish such
restoration and shall be entitled to a reimbursement in an amount equal to the cost of accomplishing such
restoration within ten (10) days of a demand therefor. Any Grantee's improvements not so removed by
Grantee within such ninety (90) day period shall automatically become the property of Declarant without
the payment of further consideratior. and without the necessity of any further conveyance or bill of sale.
(d) Exp:rationand Quitclaim. Unless exercised by Declarant, this optionsha't .
expire upon thl: Sixtieth (6t)th) anniversary of die Effective Date. Aitgt enpiration avid upon written
request therefor by Grantee, shall exccuce and dcliYer to Grantee a quitclaim deed satisfactory
to Declarant relinquishing all of B rights under the option to repurchase Portion of this Declaration,
(e) Price, The purchase price upon exercise of [lie option shall be--
(1)
e_
(i) All costs lncurred by Grantee pursuant to the Donation Agreement
which were paid through escrow in connection with the acquisition of the Property: ess
(ii) All costs, expenses, interest, fees, advances and other sums
a -
required to be paid by Grantee to Declarant ereunder, to the extent not reimbursed to Declarant by
Grantee, shall reduce the amount of the purchase price to be paid by Declarant under the terms of this
repurchase option.
(t) Repurchase Escrow Terms. Within rive (5) days after Declarant's
exercise of the option as provided above or as soon thereafter as possible, an escrow shall be created at
First American Title Insurance Company or another escrow company selected by Declarant tc
consummate the purchase as specified herein, which escrow shall have a time limit of thirty (30) days.
_ prior: r�"tsru+s nts�r+a,� ria, non nRi,,��n
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Said escrow shall be subject only to approval by Declarant of a then current preliminary title repo'��tt. Any
exceptions shown thereon created on or after the Effective Date hereof, and disapproved by tvrilte'h notice
to Grantee through escrow, shall be removed by Grantee at its sole expense at or prior to clq`sing of
escrow. In the event that the Prcperty or any portion thereof is encumbered by a mortgage or deed of
trust, Declarant may unilaterally instruct the escrow agent to satisfy the indebtedness secured thereby out
of the proceeds payable to Grantee, through the foregoing escrow, Any additional amount necessary to
satisfy such indebtedness and release such mortgage or deed of trust at the close of escrow shall be paid
by Grantee. Grantee and Declarant shall each pay one-half of the escrow fees. Declarant shall 'pay for
documentary tax stamps, for rec<rding the deed, acid for a California Land Tide Association standard
form owner's coverage policy of aide insurance in the amount of the purchase price showing title to the
Property vested in Declarant or its assigns free and clear of all liens, encumbrances or other title
exceptions other than those set forth in this Declaration. Any other costs or expenses shall be allocated
between the parties in the manner customary in Orange County, California.
(g) Irrevocability_ The option created hereby shall be irrevocable by Grantee,
and shall be binding upon the representatives, successors and assigns of Grantee.
(h) Warranties_ Plans and Specifications_ In the event Declarant reacquires
all or any portion of the Property of the Specific Facilities under this Section 5.3, Grantee shall assign
and transfer to Declarant for no acditional consideration all warranties, plans and specifications relating
to the Grantee's improvements not removed by Grantee and any other improvements transferred by
Grantee to Declarant hereunder_
5.4 [Intentionally Omitted]
Al
5.5 Waiver. Wo waiver by Declarant. of a breach of any of the Restrictions by
Grantee and no delay or failure to 'enforce any of the Restrictions shall be construed or held to be a
waiver of any succeeding or preceding breach of the same or any other of the Restrictions. No waiver
of any breach or defaulr of Grantee hereunder shall be implied from any omission by Declarant to take
any action on account of such breavh or default if such breach or default persists or is repeated, and no
express waiver shall affect a breach or default other than as specified in said waiver. The consent or
approval by Declarant to or of any act by Grantee requiring Declarant's consent or approval shall not be
deemed to waive or render unnecessary Declarant's consent or approval to or of any subsequent similar
acts by Grantee_
5.6 Costs of EnforcemetL. In the event any legal or. equitable action or proceeding
shall be instituted between Declarant and Grantee in connection with this Declaration or the Property to
enforce any provision of this Declaration, the party prevailing in such action shall be entitled to recover
from the losing party all of its cosli, including court costs and reasonable attorneys' fees.
5.7 Rights of Lenders., ,No breach or violation of the Restrictions shall defeat or
render invalid the lien of any mortgage, deed of trust or similar instrumetlt securing a loan made in good
faith and for value with respect to rte development or permanent financing of the Property or any portion
thereof; provided, however, that tLis Declaration and all provisions hereof shall be binding upon ar-d
effective against any subsequent owner or other occupant of the Property or portion thereof whose tide
is acquired by foreclosure, trustee'ssale, deed in lieu of foreclosure or otherwise, but (a) such subsequelt
owner shall have a reasonable time after acquiring title in which to cure any violations or correct and
change any facts giving rise to Declarant's rights under this Declaration occurring prior to such transfer
of title or occupancy and which are reasonably capable of being cured or changed provided that. such
subsequent owner diligently acts to effect such cure or change (and in the event of such diligegt and
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timely cure, such subsee; •.rnt owner shall have no further liability in connection with such prior violai ion
or the continued existence of such violation until such cure is completed), and (b) Sections 5.(a)
I (Damages), 5.1(c) (Abatement) and 5.3 (Option) shall not be applicable as to such subsequent owner r lth
regard to any noncurable default occurring prior to the time such subsequent owner acquired ttle.
Notwithstanding the foregoing, any Stich subsequent owner shall be required to use the Property in
accordance with the restrictions set forth in Section 2.1(a) and diligently complete construction of tiny
Specific Facilities which are incomplete on the date such subsequent owner acquires title, all subject to
the requirements contained in this Declaration. For purposes of this Section, the construction or
installation of any improvement in violation of the requirements of this Declaration shall be deemed
"curable" so long as reconstruction, repair or replacement in a manner consistent with the requirements
of this Declaration is physically and legally possible (without respect to cost).
5.8 Advances. Declarant shall be entitled to advance any sums Declarant in its sole
disci'etion deems necessary to protec_ and preserve the security for its rights and interest under this
Declaration (including but not limited to sums for completion of construction of the Specific Facilities
or any offsite improvements, any property taxes or assessments, insurance premiums, or amounts secured
or represented by encumbrances or lieris or other charges on any portion of the Property which appear
to be prior to Declarant's rights and it[erest under this Declaration), all of which advances together with
interest at the maximum contract rate then permitted by law shall be paid to Declarant upon demand and
shall be secured by the lien of this Declaration described in Section 5.1(d) above.
5.9 Waiver oflury Trial. Declarant and Grantee each acknowledges that it is aware
of and has had the advice of counsel of its choice with respect to its rights to trial by jury, and each party
does hereby expressly and knowingly waive and release all such rights to trial by jury in any action,
proceeding or counterclaim brought by either party hereto against the other (andlor against its officers,
directors, employees, agents, or subsidiary or affiliated entities) on or with regard to any natters
whatsoever arising out of or in any way connected with this Declaration, Grantee's use or occupancy of
the Property, and/or any claim of injury or damage.
Article 6. [Intentionally Omitted,]
Article 7. 1[_ntentionally Omitted.]
Article 8. GENERAL PROVISIONS.
8.1 Unavoidable Delay. Any prevention, delay or stoppage in the work of building
the Specific Facilities and any other related improvements or other work as provided for in this
Declaration caused by strikes, lockouts, actions or inaction of governmental bodies or public utility
companies, acts of God, war, riots, civil insurrection, court injunction, inclement weather or other force
of elements, inability to obtain labor or materials or reasonable substitutes therefor, or other similar
matters or causes (excluding financial inability) beyond the reasonable control of Grantee, shall extend
the time within which this Declaration required certain acts to be perforated for a period or periods equal
to any period of such prevention, delay or stoppage; provided, however, that nothing in this Section shall
excuse the prompt payment of any and all amounts due from Grantee to Declarant as required herein or
the performance of any act rendered difficult solely because of the financial condition of Grantee_
Without limiting the generality of the foregoing, in no event shall Grantee's inability to obtaiin
construction or permanent financing 1167 development of the Property, or a portion thereof, constitute an
unavoidable delay pursuant to this Section. Furthermore, in no event shall any extension of any period
of time be deemed to have occurred unless Grantee shall have given written notice to Declarant within
fifteen (15) days following any such delay, setting forth the facts giving rise to such extension-, and
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_.
provided further that the period of time. for exercise of Declarant's rights shall be
extended.
8.2 Continuous Operations. Grantee shall proceed continuously and diligently
accordance with the terns and conditioas of this Declaration. In the event Grantee does not proct
continuously and diligently, such failure to so proceed may, at the option of Declarant, be considered
event of default herein, except as such failure is excused by reason of any unavoidable delay as set fo
in the Section hereof entitled "UnavoidaAc Delay."
8.3 Covenants to Run with the Property: Term.
(a) Covenans to Run With the . Property. The Property shall be held,
developed, conveyed, hypothecated, encumbered, leased, rented, used and occupied subject to thL
Restrictions set forth in this Declaration. The Restrictions are for the benefit of the Benefitted Property
and are intended and shall be conslrue3 as covenants and conditions running with and binding the
Property and equitable servitudes upon the Property and every part thereof. Furthermore, all and each
of the Restrictions shall be binding upon and burden all persons having or acquiring any right, title or
interest in the Property, or any part thereof, and their successors and assigns, and shall inure to the
benefit of the Benefitted Property and the owners of the Benefitted Property, their successors and assigns,
and shall be enforceable by Declarant and its successors and assigns, all upon the terms, provisions and
conditions set forth herein. Every person or entity who now or hereafter owns or acquires any right, title
or interest in the Properly is and shall b_ conclusively deemed to have consented and agreed to every
Restriction contained herein, whether cr. not any reference to this Declaration is contained in the
instrument by which such person or entity acquired an interest in the Property.
a
(b) Term. All of the terms and provisions set forth in this Declaration shall
continue in full force and effect in perpetuity, except that Declarants "Enforcement Rights" (as described
in Section 2.9 above) shall terltinate sixth (60) years from the Effective Date hereof.
8.4 Assignment_by Declarant_ Declarant may assign any of its rights and powers
under this Declaration to any fee owner of any portion of the Benefitted Property, so long as such person
or entity in writing agrees to assume the dlties of Declarant pertaining to the particular rights and powers
assigned. Upon the recordation of such writing accepting such assignment and assuming such duties,
such person or entity shall, to the extent of such assignment, have the same rights and powers and be
subject to the same obligations and duties as are given to and assumed by Declarant herein_ Without
limiting the generality of the foregoing, Declarant may make such assignment as to the entire Property
or to any portion thereof. Unless specifically assigned in writing as stated in this paragraph, the
Restrictions shall cease to benefit that portion of the Benefitted Property conveyed by Declarant to a third
party and Declarant alone shall have the r ght to enforce the Restrictions and the' other provisions of this
Declaration or to recover damages or other amounts for violation of the Restrictions or breach of
m
Grantee's duties hereunder. For purposes of Eh%imediately preceding sentence, "Declarant" shall
include a party affiliated with or related io The Irvine Company which satisfies both of the following
requirements: (a) such party is (i) a person or entity which acquires twenty-five percent (25%) or more
of the assets of The Irvine Company, (q) a division or subsidiary, of The Irvine Company, (iii) or
partnership of which The Irvine Company has at least twenty-five percent (25`ic) interest in the profits'
and distributions of such partnership, (iv) a real estate investment or other entity formed by or through
the efforts of The Irvine Company and regarding which The Irvine Company owns not less than twenty-
five percent (25%) of the stock or other ownership interest, (v) an entity resulting from a merger With
or an acquisition by or of The Irvine Company, or (vi) a person or entity owning the majority of stock
I1t.7 PTNISPLNs-MMN—k, 19, t99S [laUiown
I. 20 N—Wn 11.h r An Mus -
5 -114
or other ownership inte-est in either The Irvine Company or any entity described in (i) through (v)
and (b) such party acquires all or sDme part of the Beneflued Property.
8.5 Amendmen,_s_ Except as provided in this Declaration concerning (a) substitution
of other real property as the Benefitted Property, (b) release of any portion or all of the Property from
this Declaration, (c) reacquisition cf the Property by Declarant and (d) assignment by Declarant 'of its
rights under this Declaration, this Dmlaration may be terminated, extended or amended only by al Iritirg
executed by Declarant and Grantee and recorded against the Property.
8.6 Release.
(a) Release by Declarant. Declarant may release any portion of the
Property from this Declaration at anv time and for any reason without the approval of Grantee. Decliararrt
shall also, upon written request from Grantee, release any portion of the Property dedicated or otherwise
conveyed to and accepted by a publicentity or public utility.
(b) Not Applicable to Declarant_ Notwithstanding anything herein contained
to the contrary, if Declarant reacquires title to the Property or any portion thereof at any time after the
date hereof and record(s) a notice of termination of these Restrictions in the Office of the County
Recorder of Orange County, California, these Restrictions shall cease and terminate and be of no. further
force or effect as to Declarant and such property, effective as of the date of such recordation.
8.7 Notices. Xl notices, consents, requests, demands and other communication
provided for herein shall be in writing and shall be deemed to have been duly given if and when
personally served or forty-eight (48) hours after being sent by United States certified or registered mail,
return receipt requested, postage prepaid, to the other party at the following respective ado.resses:
DECLARANT:
THE IRVIN- COMPANY
clo Irvine Commercial Land Sales Company
550 Newport Center Drive
P.O. Box I
Newport Beach, California 92658-8904
Attention: Vice President, Sales and Marketing
with a copy eo;
THE IRVINE COMPANY
c/o Irvine Ccntmercial Land Sales Company
550 Newport Center Drive
P.O. Box I r y
Newport Bea=h, California 92658-8904
Attention: General Counsel, Commercial Land Sales
Ic
d
5-115
�J
GRANTEE:
NEWPORT HARBOR ART MUSEUM
850 Szn Clemente Drive
Newport Beach, CA 92660
Attention: Director
or at such other address as Declarant or Grantee may designate to the other in writing in accordance with
the provisions of this Section.
8.8 Governing Uw. This Declaration shall be governed by and construed under the
laws of the State of California_' In the event of any dispute hereunder, it is agreed that the sole and
exclusive venue shall be in a court of competent jurisdiction in Orange County, California, and Grantee
and Declarant agree to submit to the jurisdiction of such court.
8.9 Severability. In the event that any portion of this Declaration shall b_come
illegal, null or void or against public policy, for any reason, or shall be held by any court of corrpetent
jurisdiction to be illegal, null or void or against public policy, the remaining portions of this Declaration
shall, not be affected thereby ar.d shall remain in force and effect to the full extent permitted by law,
8.10 Cantiots. The captions used herein are for convenience only and are not a part
of this Declaration and do not '.n any way limit or amplify the terms and provisions hereof.
8.11 Entire Agreement_ This Declaration, including Exhibits attached hereto which
are incorporated herein by this reference, constitutes the entire agreement between the parties aereto
pertaining to the subject matte[ hereof and all prior and contemporaneous agreemen45, representations,
negotiations and understanding, of the panics hereto, oral or written, are hereby superseded and merged
herein. The foregoing sentence shall in no way affect the validity of [he Donation Agreement pursuant
to which Grantee acquired the-roperty or any instruments executed in connection therewith.
8,12 Gender and Number_ In this Declaration (unless the context requires othervise),
the masculine, feminine and nester genders and the singular and the plural include one another.
8.13 Time o- Essence. Time is of the essence of each provision of this Declaration
in which time is an element.
8.14 No Waiver by Indemnitees_ No failure or delay on the part of any Indemnitee
to exercise any power, right or privilege under this Declaration shall impair any such power, right or
privilege, or be construed to be a waiver of any default or any acquiescence therein, nor shall any Single
or partial exercise of such power, right or privilege preclude other of funher exercise thereof or of any
other right, power or privilege. No provision of this Declaration may be changed, waived, discharged
or terminated except by an instrument i) writing signed by the pany against whom enforcement of the
change, waiver, discharge or territination is sought.
8.15 Interest Amounts due hereunder from Dectarant or Grantee to the other, if not
paid when due, shall bear interest at ten percent (10%) per annum from the date due until paid. 1merest
which is not paid shall amtually be added to the principal amount due and shall thereafter itself bear
interest as such rate.
._ ktl_+.sTP IS,geeS M1ISCIli�vnlsr 10. IT+3 13,61"
22 Nevtiyon naltul An Rl�
5-116
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IN WITNESS WHEREOF, the undersigned have executed this Declaration as of the date Ifirst
written above.
"DECLAI4ANT" "GRANTEE"
THE IRVINE COMPANY, NEWPORT HARBOR ART MUSEUM,
a Michig rporation a California nonproFt pubs is benefit corporat Ion
By: ' By:
Richard G. Sim dame /�iW iJ
Executive Vice President Title: II �_
�\' P 90
By: 'T';- 7 m By.
John C.Tsu Name:
Vice President-Finance Titte:
Investment Properties Group
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Itf.25TPFA[51'tS15.N5C1flwemher 10.1995 - Dedan4
_ _ ---- 23 NeWn nada An M�
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5-117
STATE OF CAI iFORNIA
COUNTY OF ORANGE
On November 22, 1995, before me, Cynthia M. Ptak, a Notary Public, personally appeared
Richard G. Sim, Executive Vice President and John C. Tsu, Vice President, personably Down
to me (or proved to me on the bases of satisfactory evidence) to be the persons whose names are
subscribed to the within instrument and acknowledged to me that they executed the sane in their
authorized capacity and that by their signature on the instrument the persons, or the entity upon
behalf of which the persons acted, executed the instrument.
WrIWESS my hand and official seal.
I CYAITHIA Jtit. PTAtC .
•�: _ � ����,C-.. � '� r+o�rwrPueuc1071180 �
GWFp�rF' C
O�'VJGE COE,INiy N
� .. — _ — Comrtissiorr Expires OeC. 9.1997 �
5-118
i
5-118
STATE OF CALIFORNIA, )
COUNTY OF `y e )
On lyotSGw�EIa(f S before me, _pD(4t��r2 e -.]�Q/ a notary public
in and For the said state, personally appearedSe { y�
[Insert name(s) and dtle(s)]
personally known to me (or 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 helshe/they ezecued 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 l:ehalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
j n _�-� OE90RA1+LORE C. SECARD
Signature: _ �I�' LQ✓�(' COt�uA.rl�al
*My
apPJAC - CgrrgntpMy Commission Expires: Ca n. E»m JUL Y, 1490
STATE OF CALIFORNIA, )
//jj
COUNTY OF [Ji�6t -tom }
On NUW^✓j7e/a14 0 before me,[ dx,,;.k rSre- e•S a notary public
in and for the said state, personally appeared 4-(A Ay -e-- _eA
[Insert name(s) and tide(s)]
personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose
name(s) islare 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.
WITNESS my hand and official seal. N
CESORM-LOPE C. SWAo
COMM. 4I05o30t
Signature: (Li/f � "v ''� Notary P4AC-ccofaNa
.Z A 4� nq qANGE catnv
My Commission Expires: tNy Comm.CEmtra JR 7, Iti9p
::LMPFMSPM-M5CVVo be 10, 1945
y 25
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5-119
0
LEGAL DESCRIPTION OF BENEFITTED PROPERTY
Parcel A (Harbor View 5hoVpinT g C. weF):
Parcels 2, 3 and 4, in the City of Newport Beach, County of Orange, State of California, as shown on
a map filed in Book 35 Page 1 of Parcel Maps, in the Office of the County Recorder of said County.
i
A non-exclusive easement for ingrc-;s and egress purposes over the northwesterly 10.00 feet of Parcel
No. 1, in the City of Newport Beach, County of Orange, State of California, as per map filed is
Book 35, Page 1 of Parcel Maps, rewords of said Orange County. (Harbor View Shopping Center)
Paitel B (Fashion Island)
Parcel B-1:
Parcels 1 through 9, inclusive, in the City of Newport Beach, County of Orange, State or
California, as shown on Parcel Map No. 86-399 as per Map filed in Book 221, pages 30 through
36, inclusive, of Parcel Maps, in the Office of the County Recorder of said County.
Parcel B-2:
Parcels 13 through 17, inclusive, and Lots Q, R, S, U, R-1, R-2 and R-3 of Tract No, 6015, in
the. City of Newport Beach, County of Orange, State of California, as per Map recorded in Boot-
239, pages 28 through 41, inclusive, of Miscellaneous Maps, in the Office of�,the County
Recorder of said County.
Parcel B -3 -
Parcel 1, in the City of Newport Beach, County of Orange, State of California, as shown on a
Parcel Map filed in Book 67, pages 2 and 3, of Parcel Maps, in the Office of the County
Recorder of said County_
Parcel Bim:
Parcel 1, in the City of NeW70rt Beach, County of Orange, State of California, as shown on a
Parcel Map filed in Book 75, page 48, of Parcel Maps, in the Office of the County Recorder of
said County.
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rr
EXHIBIT A
to ❑eclaration of Special Restrictions
Page I of 6
Nc%Tm Harbor An Nfi--ii
5-120
Parcel R-5;
Parcel 4 of Parcel Maps, as shcwn on a Map filed in Book 67, rages 2 and 3, of Parcel Map
and Lot W of Tract No- 6015, a-, per Map recorded in Book 239, pages 28 through 41, inclusive
of Miscellaneous Maps, all in the City of Newport Beach, County of Orange, State of California,
in the Office of the County Recorder of said County, lying within the land described as Parcels
I and 2 of that certain Lot Line Adjustment N_11 L.L.A. 87-3, recorded November t3, 1987, ais
Instrument No. 87-640346, in the Office of the County Recorder of said County.
Parcel C (Pelican Hill Golf Courses) `
Parcel C-1:
Parcel 1 of that certain Lot Line Adjustment No. LL -94-030, recorded April 28, 1995
as Instrument No, 95-0130640, Official Records of said County.
Parcel C-2;
Lots 2, 5, 6 and 7 of Tr -et No- 14131, in the County of Orange, State of California, as;
shown on a Map filed ir_ Book 662, Pages 42 to 46, inclusive of Miscellaneous Maps,
Records of Orange Coutry, California.
arcel C-3:
Parcel 4 of that certain Lot Line Adjustment No. 94-008 recorded April 28, 1995 as
Instrument No, 95-018OE4, Official Records of said Countv.
Parcel C-5:
Parcel 1 of that certain Lot Line Adjustment LL 92-017, recorded on May 22, 1992 as
Instrument No. 92-343565 of Official Records of said County.
i
Parcel Cfi;
Easements over those portions of Lot 59 and that portion of Lot A of Tract 14063, per
Map filed in Book 670, Pages 23 through 29 inclusive of Miscellaneous Maps, Records
of Orange County, California, as set forth in Article 11, Subparagraph 2.3(c) entitled
"Access Over Common Area for Golf Course" in that certain declaration entitled
Declaration of Special Covenants, Conditions, Restrictions and Establishment of
Easements for Golf Coune Property and Pelican Point, recorded May 23, 1991 as.
Instrument No. 91-254012, Official Records.
EXHIBIT A
to Declaration of Special Restrictions
Page 2 of 6
]11.7JRrt'MSPINS.MSt�Nmem6er l(1, 1995 - occi�-.ua,
N—p." n-bm Art M-1
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5-121
Parce F-.
A forty (40) foot wide easement for access tunnel purposes under and through a porion
of that parcel of land described within the "Irrevocable'Offer to Convey Easement Pelican
Hill Road Right -of -Way" (now known. as "Newport Coast Drive-) recorded Dece6lber
20, 1988 as InstrumertNo. 88-663375, Official Records in the Unincorporated Terriliory
of the County of Orange, State of California, and shown on the map of Tract No, 1413t,
Filed in Book 662, Pages 42 through 46, inclusive, of Miscellaneous Maps, in the Office
of the County Recorder of said County. said easement being more particularly described
as follows:
Commencing on the northwesterly terminus of that certain course describe] as
"North 55' 53' 00" west, 457,71'", to which a radial line bears north 34° 43'
O
41" west and being the intersection of the northeasterly line of Lot 4 of said tract
with the south3rly line of said irrevocable offer, said southerly line being a curve
concave southerly, having a radius of 1129,50 feet; thence, westerly, 97,70 feet
along said curye, through a central angle of 04' 57' 21" to the True Point of
Beginning, a radial line through said point bears north 39' 41' 02" west; thence
continuing along said curve 44,50 feet through a central angle of 02" 15' 26" to
which a radial line bears north 41° 56' 28" west, thence, crossing said
irrevocable offer, north 14' 56' 28" west; thence crossing said irrevocable offer,
north 14' 50' 09' west, 151.77 feet to the northerly line of said irrevocable offer
and a point in a Curve concave southerly having a radius of 1266.50 feet, a radial
line through said point bears north 38' 48' 40" west; thence, easterly, 43.45 feet,
along said curve, through a central angle of 01" 57' 57", to which a radial line
bears north 36',50' 43" west; thence, crossing said irrevocable offer; south 14'
50' 43" west; thence, crossing said irrevocable offer, south 14' 50' 00" east,
149.26 feet to the Point of Beginning_
r
The herein described easement is centered upon a cylinder twenty-five (25) feet in
diameter. The tinishei floor elevation at the northerly end is 129.50 feet M.S,L.; the
finished floor elevation at the southerly end is 120. I0 feet M.S.L.
Parcel C-7;
A fifty (50) foot wide ? ernent for access tunnel proposes tinder and through a portion
of that parcel of land being a 100 foot wide right of ways known as "Pacific Coast
Highway" in the unincorporated territory of Orange County, as shown on the Map of
Tract No. 14131, filed in Book 662, Pages 42 through 46, inclusive, of Miscellaneous
Maps, in the Office of the County Recorder of said County, said easement being more
particularly described Ls' follows;
EX iBl A
to Declaration of Special Restrictions
i Page 3 of 6
----.. -- 1 n.=MINFLNS MKANwankr 10, 1995
i` N -,T m naAwr An Murcwn
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5-122
Commencing on the northwesterly terminus of that certain course escribed as
"(nosh 49' 29' 55" west, 5241.12')' and being the most westerly c(I rne. of Lot
3 of said tract and being in the easterly line of said Pacific Coast H'.ghway;
thence,' along said easterly line of Pacific Coast Highway, south 49' 29' 55"
east, 205.69 feet to the True Point of Beginning; thence, continuitii,�S with said
easterly line, south 49' 29' 55" east, 50.00 feet; thence, crossing §aid Pacific
Coast Highway, south 40' 30' 05" west, 100.00 feet to a point in tie Westerly
line of said Pacific Coast Highway; thence, along said westerly line, north 49'
29' 55" west, 50.00 feet; thence, crossing said Pacific Coast Highway, north 40'
30' 03", east, 1.00.00 feet to the True Point of Beginning.
The herein described easement is centered upon a cylinder twenty-five (25) feet
in dia-deter_ The finished floor elevation at the northeasterly end is 113.I0 feet
M.S_L.'r the finished floor elevation at the southwesterly end is 112.60 feet
M.S.L.'
Parcel C-8:
Parcel 1 of that certain Lot Line Adjustment No. LL -94-031, recorded April 28, 1995
as Instrument No. 95.0180642, Official Records of said County.
Parcel C-9:
Those certain Easements Rights over Lots 40, 41 and 42 of Tract No. 13703, as set forth in
Article 2 of that certain Declaration of Reciprocal Easements by The Irvine Company recorded
March 4, 1994 as Instrument No. 94.0157793 of Official Records_
Parcel C-10:
Easements over Lots A, B and K of Tract I4063, as per Map filed in Book 670, Pages 23
through 29 inclusive of Miscellaneous Maps, Records of Orange County, California, for
pedestrian, golf can and other vehicular means for maintenance purposes, use and enjoyment of
the adjacent golf course, as contained in that certain Declaration of Reciprocal Easements :)y The
Irvine Company recorded March 4, 1994 as Instrument No, 94-0157793, Official Records.
Parcel C - tis
A non-exclusive easerient and right of vehicular and pedestrian ingress and egress over that
portion of Lot 1 of Tract No. 13859, in the unincorporated territory of the County of Grange,
State of California, as shown on the Map Filed in Book 671„ Pages 12 and 13 of Miscellaneous
Maps, in the Office of the County Recorder of said County, more particularly described as
follows:
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EXHIBIT A
to Declaration of Special Restrictions
Page 4 of 6
�SdnYm
N—P. 1hit., As Af"+ .
i
5-123
Beginning at the intersection of the northwesterly line of said Lot I wit� the
south�.5terly line -of Pelican Hill Road South as described in an Irrevocable Of er of
Dedication to the County of Orange, Recorded October 4, 1990 as Instrument Ml . 90-
530548 of Official 4ecords of said County; said intersection also being the beginning of
a curve ccncave northeasterly, having a radius of 5140.00 feet, a radial line through sa d
beginning bears south 33' 46' 57" west;
thence, traversing t16 interior of said Lot t, the following three (3) courses-.
(1) Southeasterly, 89.01 feet along said curve, through a central angle of 00' 59'
32" to a non -tangent line and to which a radial line bears south 32° 47' 25" west;
(2) South 27' 12' 19" west, 201.25 feet to the beginning of a curve concave
northwesterly, having a radius of 84.00 feet; and
(3) Southwesterly, 103.00 feet along said curve, through a central angle of 700 15'
21" to said -northwesterly line of Lot 1 and to which a radial line bears south 07, °
27' 40" west;
thence, along said northwesterly line of Lot 1, north 201 44' 00" east, 291.0
feet to the Point of Beginning.
Parcel D (500 and 550 Newport Canter Drive
Beginning at the easterly terminus of that certain course in the northerly right of way line o f San Nicolas
Drive shown as south 80 degrees, 14 minutes, 38 seconds east 91.45 feet on Map of Tract 6015 filed :n
Book 239, pages 28 through 41 of Miscellaneous Maps, in the Office of said County Recorder; thence
along the right of way lines of said San Nicolas Drive, Newport Center Drive East and Santa Rosa Drive
as shown on said Map. The following courses and distances, north 80 degrees, 14 minutes, 38 seconds
west 91.45 feet to the beginning of a curve concave northeasterly having a radius of 25.00 feet,
northwesterly 38.16 feet along said :urve through an angle of 87 degrees,, 26 minutes, 49 seconds to the
beginning of a reverse curve concav westerly having a 425 radius of 1670A0 feet; northerly 472.13 feet
along said curve through an angle of 16 degrees, I1 minutes, 54 seconds to the beginning of a reverse
curve concave southeasterly havin€ a radius of 25.00 feet; northeasterly 38,16 feet along said curve
through an angle of 87 degrees, 26 minutes, 49 seconds, north 78 degrees,. 27 minutes, 06 seconds 69.97
feet to the beginning of a curve concave northwesterly having a radius of 825.50 feet, northeasterly
195.27 feet along said curve through an angle of 13 degrees, 33 minutes, I 1 seconds to a point of a non -
tangent curve concave southwesterl_y having a radius of 25.00 feet, a radial to said point bears north 35
degrees, 38 minutes, 46 seconds east; thence easterly 4.81 feet along said curve through an angle of 11
degrees, 01 minutes, 42 seconds to t1e beginning of a reverse curve concave northeasterly having a radius
of 161.00 feet-, thence southeasterly 91.20 feet along said curve through an angle of 32 degrees, 27
minutes, 16 seconds to the beginning of a reverse curve concave southeasterly having a radius of 25.C-0
feet; thence southerly 32.67 feet along said urve through an angle of 74 degrees, 53 minutes, 01
seconds; thence south 0 degrees, 53 minutes, 46 seconds east 25.50 feet to the beginning of a reverse
EXHIBIT A
to Declaration of Special Restrictions
Page 5 of 6
111.25'V7115PL`75.M5tlNmwT1bcr 10. tm t7al�ra�yt
Ncuru 11.ft. An hlnxui,
i
1
5-124
curve concave nor'—westerly having a radius of 2.00 feel; thence southwesterly 3.14 feet along Laid r.urve
through an angle of 90 degrees, 00 minutes, 00 seconds to the beginning of a reverse curvi' concave
southeasterly having a radius of 2.00 feet; thence southwesterly 3.14 feet along said curve through an
angle of 90 degrees, 00 minutes, 00 seconds; thence south 0 degrees, 53 minutes, 46 seconds east 179.75
feet to the beginning of a curve concave northwesterly having a radius of 10.00 feet; thence southwesterly
6.59 feet along said curve thrcugh an angle of 37 degrees, 45 minutes, 40 seconds; thence south 36
degrees, 51 minutes, 54 seconds west 9.49 feet to the beginning of a curve concave southeasterly having
a radius of 10.00 feet; thence southerly 6.59 feet along said curve through an angle of 37 degrees, 45
minutes, 40 seconds; thence south 0 degrees, 53 minutes, 46 seconds east 31.50 feet to Point A"
hereinafter referred to; thence continuing south 0 degrees, 53 minutes, 46 seconds ease 31.50 to the
beginning of a curve concave northeasterly having a radius of 10.00 feet; thence southeasterly 6.53 feet
along said curve through an angle of 37 degrees, 45 minutes, 40 seconds; thence south 38 degrees, 39
minutes, 26 seconds east 9.49 feet to the beginning of a curve concave southwesterly having a'radius of
" 10.00 feet; thence southerly 6.59 feet along said curve through an angle of 37 degrees, 45 minutes, 40
seconds; thence south 0 degrees, 53 minutes, 46 seconds east 212.75 feet to the beginning of a :urve
concave northwesterly having a radius of 25.00 feet; thence southwesterly 24.40 feet along said curve
through an angle of 55 degrees, 55 minutes, 53 seconds to the beginning of a reverse concave
southeasterly having a radius of 147.00 feet; thence southwesterly 66.40 feet along said curve through
an angle of 25 degrees, 52 minuoei, 43 seconds to the beginning of a reverse curve concave northwesterly
having a radius of 25.00 feet; thence southwesterly 9.78 feet along said curve through an angle :)f 22
degrees, 24 minutes, 25 seconds to a point on a non -tangent curve concave southerly having a rad us of
950.50 feet and northerly right of way line of said San Nicolas (hive, a radial to said point bears nonh
22 degrees, 12 minutes, 47 secands east; thence westerly 206.65 feet along said curve through an angle
of 12 degrees, 27 minutes, 25 seconds to the point of beginning.
Parcel E (610 Newport Center Drive
That portion of hot 22 of Tract No. 6015, in the City of Newport Beach, County of Orange, State of
California, as shown on a Map recorded in Book 239, pages 28 through 41, inclusive, of Miscellameous
Maps, in the Office of the County Recorder ofsaid County; lying southeasterly of the boundary of a Map
filed in Book 25, page 14 of Parcel Maps, in the Office of the County Recorder of said County.
Parcel F (690 Newport Center Drive)
Parcels 2 and 3 of Parcel Map No. 83-715, in the City of Newport Reach, County of Orange, StEte of
California, as shown on a Map fled in Book 196, pages 13 through 16, inclusive, of Parcel Maps, in the
Office of the County Recorder cf said County.
Parcel G
All other property owned by Declarant in the County of orange, California, as of the date of recordation
of this instrument.
DCClarant snail have the fight froM litne to time and at any time, by duly recorded amendment tc this
instrument executed only by Decl�rant, to unilaterally provide further description of all or portions of
the Benefitted Properry described above.
EXHIBIT A
to Declaration of Special Restrictions
Page 6 of 6
--- —� -111.27RPk�A1SP11d5.I�iSQkmon6a IO.lvus
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5-125
5
ti
REQUIREMENTS FOUR SPECIFIC FACILITIES
Description of S ecific Facilities.
A first class art museum with related landscaping and hardscaping improvements.
Maximum -No. of Buildints: 1*
Maximum Gross Floor Area: 32,500 square feet**
Permitted Use
An art museum and ancillary facilites in support thereof which may include commercial and ietaa
activities that cater to and serve primarily museum visitors (such as an auditorium, gift shop and a
restaurant).
.l�
* Any connecting structure between the building located on the Fee Property and any improvements
on the adjacent properly currently awned by Grantee will not be deemed to be a separate building
for the purpose of determining the number of buildings on the Fee Property.
** By setting forth any required tttaxL-num gross floor area above, Declarant does not thereby
represent or warrant [hat Grantee shall be able to develop the Fee Property for such density.
r.. M
EXHIBFT B
to Beclaration of Special Restrictions
[11.2MPRISPLMASCN—bc, A 193 tkUantir
Newport Hub., A,(Ma
5-126
5-127
ps
5-127
THE IRVINE COMPANY
c/o Irvine Land Management
550 Newport Center Drive, 7th Flooc
Newport Beach, CA 92660
Attention: Lee Million
SPACE AHO VE THIS LL%K
SUBORDINATION AGREEMENT
NOTICE: THIS SUBORDINATION AGREEMENT RESULTS IN
YOUR RIGHTS AND INTERESTS AND YOUR SECURITY INTEREST
IN THE PROPERTY RECOM' IPTG SUBJECT TO AND OF LOWER PRIORITY THAN
THE LIEN OF SOME OTHER OR LATER SECURITY INSTRUMENT_
I. PARTIES AND DATE.
This Subordination Agreement ("Agreement") is made this day of
19—by NEWPORT HARBOR ART, MUSEUM, a California nonprofit public benefit corporation
("Owner"), owner of the "Property" (as defined below) and THE IRVINE COMPANY, a Michigan
corporation ("lrvinC"), declarant unde- the Declaration (defined below).
IL ACKNOWLEDGEMENTS,
Owner has executed a Declaration of Special Land Use Restrictions, Right of First Refusal,
Mortgage Lien and Other Remedies (tf_e "Declaration") dated , 19_, and recorded
on as Instrument No_ in the Official Records of Orange County,
California as an encumbrance on the title of the real property (the "Property") in the City of Newport
Beach, County of Orange, State of Cal--fornia described as follows:
Parcel A: All of that certain real property more fully described on EXHIBIT A
attached hereto hnd by this reference incorporated herein (the "Fee
Property").
Parcel B: A permanent neri.excldile easement appurtenant to the Fee Property for access,
ingress and egress by vehicles and pedestrians to and from the Fee Properly and
the adjoining public street over certain real property, all as more fully described
in that cenain Declaration of Easements recorded on October 31, 1995, as
I _
I
EXHIBIT D
to Declaration of Special Restrictions
_ _ 111-1lT5PF�ISPi NS.M,VLIIY'dcr '_7, 19�s nril�nivp
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Parcel C:
Instrument No. 19950484848 in the Official Records of Orange
"Declaration of Easements").
A pe. manent nonexclusive easement appurtenant to the Fee Proper
drainage from the Fce Property over certain real property, all z
described in the Declaration of Easements
(the
for surface
mcre fully
Owner has executed, or is about to execute, certain loan documents ("Loan Documt�rits') dated
With or in favor of
("Lowder") to obtain and evidence a loan (the "Loan") from Lend& in the amount of �
The Loan Documents have all been delivered to Irvine and include, without limitation, a Dived of Trust
(the "Deed of Trust") to be recorded concurrently with this Agreement as security for the. obligations
evidenced by the Loan Documents. Lender is incurring its obligations in connection with the 'Loan in
good faith and for value pursuant to an agreement with Owner, on which Irvine is relying and which is
memorialized in the Loan Documents, that the proceeds of the Loan will be expended solely for fttattcing
or refinancing of construction of certain improvements on the Property, the plans and specifications for
which have been, or will, prior to the commencement of construction, be approved by Irvine, all in
accordance with the provisior-s of rhe Loan Documents, and for no other purpose unless apprcved by
Irvine in writing in its sole disci retion.
A condition precedent to Lender's agreement to make the Loan is that the Deed of Trust shall
be and remain at all times a list or charge upon the Property prior and superior to certain enfor_ement
rights and remedies of Irvine under the Declaration.
Irvine and Owner agree that it is to their mutual benefit that Lender make the Loan to Owner.
This Agreement is made in co-isideration of the mutual benefits to Irvine and Owner resulting frim the
Loan and for other valuable consideration, the receipt and suffiiciency.of which is acknowledged b) Irvine
and Owner,
III, SUBORDINATION.
A_ Superioritv of Deed of Trust.
The Deed of Trust and any renewals or extensions thereof shall be and remain at al: times
a lien or charge on the Property prior and superior to Declarant's right of first refusal contained in Article
4 of the Declaration, the mortgage Gen contained in Section 5.1(d) of the Declaration, and the opt ion to
repurchase contained in SecdoA 5.3 of the Declaration (collectively, the "Enforcement Bights"),
provided, however, that (i) the Declaration (including the Enforcement Rights) shall be binding upon and
effective against any subsequent owner or other occupant of the Property or any portion thereof whose
title is acquired by foreclosure. trustee's sale, deed in lieu of foreclosure or otherwise, as provided in
Section 5.7 of the Declaration, and (2) any such subsequent owner shall have the cure rights as provided
in said Section 5-7. Notwithstanding anything to the contrary contained in this Agreement, Lender's
foreclosure or similar or related proceeding under the Deed of Trust shall not extinguish Irvine's
Enforcement Rights, all of which shall survive such proceeding and shall be binding upon any subsequent
owner acquiring tide from Lender as stated above_
,i. STYFMST[
NSMSC,Okmter 2s, 19"
EXHIBIT D
o Declaration of Special Restrictions
2
L
III
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5-129
B. Ownc.'s Consent
Owner agrees that Irvine shall be entitled to advance any sums Irvine in lis S7le
discretion deems necessary to protect and preserve the security for its rights and interest ul&r :he
Declaration (including but not limited to any property taxes or assessments, insurance premiums, ai4nounts
secured by Lender's Deed of Trust, or encumbrances or liens or other charges on any portion, of :he
Property which appear to be prio_ io Irvine's rights and interest under the Declaration), all of' which
advances (together with interest at the maximunt rate permitted by law) shall be secured by the mortgEge
lien contained in Section 5.1(d) of the Declaration, and shall be subject to the power of site provisions
in the Declaration if Owner fails to reimburse Irvine for such advances within ten (10) days after demand
from Irvine, and all such advances ;plus interest thereon at the maximum rate then permitted by law) shall
reduce the amount of any repurchase price to be paid by Irvine under the terrns of the option to
repurchase contained in the Declaration.
IV, MISCELLANEOUS.
A. Entire Agreement.
This Agreement shall be the whole and only agreement between Irvine and Owner with
regard to the subordination of Irvine's enforcement rights and remedies under the Declaration to the lien
or charge of the Deed of Trust.
B_ Attorneys' Fees_
The prevailing party in any litigation respecting this Agreement shall be entitled to
reimbursement of attorneys' fees and costs, whether or not taxable, incurred in the Iitiga:ion,
lIII1VIIYEIr "t�wi11�'Il" _
THE IRVINE COMPANY, NEWPORT HARBOR ART MUSEUM,
a Michigan corporation a California nonprofit public benefit corporation
By:
By
Richard G. Sim
Executive Vice President
John C. Tsu
Vice President -Finance F
Investment Propertlzs Group
lii.Z25APRISPVS MS00whL 75, 1947
By:
Name:
Title:
By: _
Name:
Title:
EXHIBIT D
to declaration of Special Restrictions
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t
STATE OF CALIFORNIA, )
) ss.
COUNTY OF f�:' )
On , before me, a nptary public
in and for the said state, perianally appeared
[Insert name(s) and tittle(s))
personally known to we {or"p rived to me on the basis of satisractory evidence) to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they execited the
Same in his/herltheir authorized capacity(ies), and that by his/her/their signature(s) on the itts[runent the
person(s), or the entity upon 3ehalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature:
My Commission Expires_
I
STATE OF CALIFORNIA, )
) ss.
COUNTY OF )
On ; before me, a notary public
in and for the said state, personally appeared
[Insert name(s) and title(s))
personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose
name(s) islare 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.
WITNESS my hand and official seal.
Signature;
My Cortunission Expires: (Seal)
EXHIBIT D
to Declaration of Special Restrictions
k1715TP7 +tls.T�snocmncr 25. 1777 Yc�m
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5-131
STATE OF CALIFORNIA,
COUNTY OF
ss.
On before me, a no�ary public
in and for the said state, personally appeared
[Inert name(s) and title(s)]
personally known to me (or proved to me on the basis of satisfactory evidence) to be the persons) whose
name(s) islare subscribed to th. within instrument and acknowledged to me that helshelthey executed the
same in his/her/their authorized capaciry(ies), and that by his/her/their signature(s) on the instillment the
�,a person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official. seal.
Signature:
My Commission Expires_
STATE OF CALIFORNIA, )
ss_ •
COUNTY OF " )
On before me, a notary public
in and for the said state, personally appeared
(Insert name(s) and title(s)]
personally known to me (or 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 helshelthey executed the
same in hisfherltheir authorized capacity(ies), and that by histherltheir signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature:
My Commission Expires: (Seal)
EXHIBIT D
io Declaration of Special Restrictions
In 257WMSPLDi5.MSCbo.6�r 3, 19" - D.T— n,
NHmTM 16,6W .5n ate,
5-132
LEGAL DESCRIPTION OF FEE PROPERTY
tiff ii
i
I
THAT CERTAIN REAL PROPERTY IN THE STATE OF CALIFORNIA, COUNT
OF ORANGE, CITY OF, NEWPORT BEACH, DESCRIBED AS FOLLOWS:
PARCEL 2 AS SHOWN ON EXHIBIT B OF LOT LINE ADJUSTMENT 95.3
RECORDED OCTOBER 31, 1995, AS INSTRUMENT NO. 19950483821 OF
OFFICIAL RECORDS OF SAID COUNTY.
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FXHIBIT A
to Subordination Agreement
L"T:FMSP[NS.MSC10,kA= 75. [995 1?slarsrrt
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5 -133
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b
LEGAL D
1. Bayport:
2
3
PARCEL A:
PARCEL I IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE
OF CALIFORNIA, AS SHOWN ON A MAP THEREOF RECORDED IN BOOK 35,
PAGE 1 CF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF
SAID ORANGE COUNTY_
PARCEL B.-
2
:
EASEMEMTS FOR PEDESTRIAN AND VEHICULAR ACCESS, INGRESS AND
EGRESS, AND FOR UTILITY FACILITIES, OVER, ACROSS AND T7.4ROUGH
THAT CERTAIN PROPERTY LOCATED IN THE CITY OF NEWPORT BEACH,
COUNTY OF ORANGE, STATE OF CALIFORNIA, DESCRIBED AS THE
SOUTHEASTERLY 10.00 FEET OF PARCEL 2, IN THE CITY OF NEWPORT
BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP FILED
1N BOOK 35, PAGE I OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY, AS SET FORTH IN THAT CERTAIN
DECLARATION OF ACCESS EASEMENTS DATED AS OF JUNE 15, 1993, AND
RECORDED JUNE 15, 1993, AS INSTRUMENT NO. 93-0401502 OFFICIAL
RECORDS
Bayview:
PARCEL 1 IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE
OF CALIFORNIA, AS SHOWN ON A PARCEL MAP FILED IN BOOK 35, PAGE
2 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY.
Baywood;
PARCEL$ i mD 2 iN THE CITY OF NEWPORT BEACH, COUNTY OF O -RANGE,
STATE OF CALIFORNIA, AS SHOWN ON PARCEL MAP NO. $4-705 FILED IN
BOOK 199, PAGES 6 THROUGH 16 INCLUSIVE, OF PARCEL MAPS, IN THE
OFFICE OF THE COUNTY RECORDRIZ OP SAID COUNTY.
.I It,73 mMsvLY3 MSCZQ%tdtr 27, 19%
EXHIBIT E
to Declaration of Special Restrictions
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EXHIBIT E
SCHEDULE OF DEVELOPMENT IMPACT FEES
1. Park Dedication Fee: $26,125 per new residential unit as established by City
Council Resolution No. 2007-30.
2. Fair Share Traffic Fee: $203.29/trip as specified in the June 21, 2016 Traffic
Engineer Memorandum to the Planning Department.
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'. IF( -) VA"
-
Memorandum
To: City Council
ATTACHMENT C
From: Gregg Ramirez, Senior Planner
Date: December 8, 2016
CITY OF NEWPORT BEACH
"OMMUNITY DEVELOPMENT DEPARTMENT
100 Civic Center Drive
Newport Beach, California 92660
949 644-3200
newportbeachca.gov/communitydevelopment
Re: Museum House Residential Project (PA2015-152) - Public
Comments
Following the November 29, 2016 City Council public hearing, staff received
additional public comments regarding the proposed Museum House Residential
Project:
1. Nine phone calls in opposition to the project.
2. Two written comments in opposition to the project, which are attached.
Attachments:
Two public comment letters in opposition
5-136
Ramirez, Gregg
Subject: FW: Feedback for Newport Beach, CA
From: NoReplyPnewportbeachca.gov
Sent: Tuesday, December 06, 2016 9:27 AM
To: City of NB Questions
Subject: Feedback for Newport Beach, CA
You have received this feedback from Diana Black < dianablack(a�roadrunner.com > for the following page:
http://www,newportbeachca. gov/government/departments/city-manager-s-office
Felt a need to put my "2 cents" in on the 25 -story Museum House Luxury condominium project. The Newport
Center has kept an organized plan of lower commercial buildings. Even though I didn't approve of all the high
density apartment buildings in the Center, they have kept with the overall plan. I don't understand why the City
or its residents would approve this monstrous condominium project? This will open the door for more & more
high rise buildings. The City was very careful when building our new civic center to be sensitive to the building
height and protecting the beautiful views of our coastline. I am a 30+years NB resident (Bluffs), and feel newer
people don't really care about our city, views, traffic, bulging high-rise buildings, etc. This project should not be
allowed.
5-137
Ramirez, Gregg
Subject: FW: Feedback for Newport Beach, CA
From: NoReply@newportbeachca.gov
Sent: Tuesday, December 06, 2016 11:00 AM
To: City of NB Questions
Subject: Feedback for Newport Beach, CA
You have received this feedback from Bob Montgomery < Kimmont og 1954(c�r�,earthlink,net > for the following
page:
http://www.ne)yportbeachca.gov/goven,in'lent/city-council
I am writing to express guy and my family's dismay at the sleazy "fake petition" tactics by the company doing
the Museum House project. I was a supporter of the project but will now happily sign the petition or petitions
that call for a referendum by the citizens.
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