HomeMy WebLinkAbout04 - Harbor Pointe Senior Living Project Located at 101 Bayview Place (PA2015-210)TO:
FROM:
CITY OF
NEWPORT BEACH
City Council Staff Report
PREPARED BY:
PHONE:
February 26, 2019
Agenda Item No. 4
HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
Seimone Jurjis, Community Development Director - 949-644-3232,
sjurjis@newportbeachca.gov
Benjamin M. Zdeba, AICP, Associate Planner
949-644-3253, bzdeba@newportbeachca.gov
TITLE: Second Reading and Adoption of Ordinances Nos. 2019-3 and 2019-
4 Related to the Harbor Pointe Senior Living Project Located at
101 Bayview Place (PA2015-210)
ABSTRACT:
The attached two ordinances are considered for second reading and adoption to amend
the Bayview Planned Community Development Plan and approve a development
agreement between the City of Newport Beach and Harbor Pointe Senior Living, LLC for
the Harbor Pointe Senior Living Project located at 101 Bayview Place.
RECOMMENDATION:
a) Find that the Harbor Pointe Senior Living Project Environmental Impact Report (EIR)
No. ER2018-001 (SCH No. 2016071062) certified by the City Council on February 12,
2019, by Resolution No. 2019-13 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 a second reading and adopt Ordinance No. 2019-3, An Ordinance of the City
Council of the City of Newport Beach, California, Adopting Planned Community
Development Plan Amendment No. PD2015-005 Amending Area 5 of the Bayview
Planned Community (PC -32) for the Harbor Pointe Senior Living Project — A Senior
Convalescent and Congregate Care Facility Located at 101 Bayview Place (PA2015-
210); and
c) Conduct a second reading and adopt Ordinance No. 2019-4, An Ordinance of the City
Council of the City of Newport Beach, California, Approving Development Agreement
No. DA2018-006 for the Harbor Pointe Senior Living Project — A Senior Convalescent
and Congregate Care Facility Located at 101 Bayview Place (PA2015-210).
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Second Reading and Adoption of Ordinance Nos. 2019-3 and No. 2019-4 Related to the
Harbor Pointe Senior Living Project Located at 101 Bayview Place (PA2015-210)
February 26, 2019
Page 2
DISCUSSION:
On February 12, 2019, the City Council introduced and passed to a second reading
Ordinance No. 2019-3, which changes Area 5 of the Bayview Planned Community (PC)
land use designation from Restaurant/Administrative and Professional Office to
Residential Care Facility for the Elderly (RCFE) for 101 Bayview Place and includes new
development standards. The City Council also introduced and passed to second reading
Ordinance No. 2019-4, which approves a development agreement (Agreement) between
the City and Harbor Pointe Senior Living, LLC.
ENVIRONMENTAL REVIEW:
EIR No. ER2018-001 (SCH No. 2016071062) 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 February 12, 2019, by Resolution No. 2019-13.
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. 2019-3 (PD2015-005)
Attachment B — Ordinance No. 2019-4 (DA2018-006)
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Attachment A
Ordinance No. 2019-3 (PD2015-005)
M
ORDINANCE NO. 2019- 3
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
NEWPORT BEACH, CALIFORNIA, ADOPTING PLANNED
COMMUNITY DEVELOPMENT PLAN AMENDMENT NO.
PD2015-005 AMENDING AREA 5 OF THE BAYVIEW
PLANNED COMMUNITY (PC -32) FOR THE HARBOR
POINTE SENIOR LIVING PROJECT — A SENIOR
CONVALESCENT AND CONGREGATE CARE FACILITY
LOCATED AT 101 BAYVIEW PLACE (PA2015-210)
WHEREAS, an application was filed by Harbor Pointe Senior Living LLC of
California ("Applicant"), with respect to property located at 101 Bayview Place, and legally
described as Lot 1 of Tract No. 12528 in the City of Newport Beach, County of Orange,
State of California, as per Map recorded in Book 551 Pages 38 through 41 inclusive of
Miscellaneous Maps, in the Office of the County Recorder of said County, Assessor's
Parcel No. 442-283-05 ("Property");
WHEREAS, the Applicant proposes the demolition of an existing approximately
8,800 square -foot restaurant ("Kitayama") to accommodate the development of an
approximately 85,000 square -foot, three-story senior convalescent and congregate care
facility (i.e., memory care and assisted living) as a State -licensed Residential Care Facility
for the Elderly ("RCFE") with 120 beds ("Project");
WHEREAS, in order to implement the Project, the Applicant requests or requires
the following approvals from the City of Newport Beach ("City"):
• General Plan Amendment ("GPA") — The current land use designation is
General Commercial Office ("CO -G") which allows 8,000 square feet for
restaurant use or 70,000 square feet for office use. The general plan amendment
would change the CO -G land use designation to Private Institutions ("PI") and
amend Anomaly No. 22 to allow the 85,000 square foot RCFE (Table LU2 and
associated figures);
• Planned Community Development Plan Amendment (Zoning) — To change
the allowed land uses and amend development standards in Area 5 of the
Bayview Planned Community ("PC -32") Zoning District;
• Major Site Development Review — To ensure the Project is developed 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);
E
Ordinance No. 2019 -
Page 2 of 5
Conditional Use Permit — To allow the use of the Property as a 120 bed RCFE
(memory care and assisted living facility) with conditions of approval that protect
the health, safety and general welfare of the surrounding community;
Development Agreement — The applicant has requested a development
agreement, which will provide for public benefits as the project is implemented;
and
Environmental Impact Report ("EIR") — To address reasonably foreseeable
environmental impacts of the Project with corresponding mitigation measures that
reduce those environmental impacts in accordance with the California
Environmental Quality Act ("CEQA") in 14 California Code of Regulations Section
15000 et seq. and the California Public Resources Code Section 21000 et. seq.
WHEREAS, the Property is located within Area 5 of the PC -32 Zoning District and
the General Plan Land Use Element category is designated as CO -G;
WHEREAS, the Property is not located within the coastal zone; therefore, a coastal
development permit is not required;
WHEREAS, on February 23, 2017, the Planning Commission held a study session
in the Council Chambers located at 100 Civic Center Drive, Newport Beach, California,
to provide initial direction on the Project. No action was taken at the study session.
Although not required, the City mailed a courtesy public notice of this study session to
property owners within a 300' radius of the Property;
WHEREAS, on September 13, 2018, the Planning Commission held a study
session in the Council Chambers located at 100 Civic Center Drive, Newport Beach,
California, to receive a project update and review the draft EIR. No action was taken at
the study session. Although not required, the City mailed a courtesy public notice of this
study session to property owners within a 300' radius of the Property;
WHEREAS, on December 6, 2018, the Planning Commission held a public hearing
in the Council Chambers located at 100 Civic Center Drive, Newport Beach, California. A
notice of time, place and purpose of the public hearing was given in accordance with
California Government Code Section 54950 et. seq. ("Ralph M. Brown Act") and Chapter
20.62 of the Newport Beach Municipal Code ("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. PC2018-033 by a
unanimous vote of 6-0 recommending approval of the Project, and the land use entitlements
referenced above, to the City Council;
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Ordinance No. 2019 -
Page 3 of 5
WHEREAS, on January 17, 2019, the Airport Land Use Commission ("ALUC")
reviewed the proposed project and found it consistent with the AELUP. However, the ALUC
did include two conditions on the consistency determination: (1) to modify noise mitigation
measure NOI-4; and (2) to include an additional condition of approval on the project requiring
outdoor signage informing the public of the presence of operating aircraft;
WHEREAS, on February 12, 2019, the City Council held a public hearing in the
City 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 Ralph M.
Brown Act and 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 -32 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 northern portion
of Santa Ana Heights, which includes a mixture of commercial support uses, professional
offices, a hotel, and residential developments. The amended PC -32 Development Plan is
complimentary to the surrounding development, including the standards and allowed uses
of the other planning areas of the PC -32 Zoning District and the adjoining Santa Ana
Heights Specific Plan Area;
WHEREAS, the proposed amendment to the PC -32 Development Plan would
apply appropriate site and Project -specific setbacks, intensity, and height limits to the
project site given the site's urban location and all required parking is provided onsite. The
site is currently fully developed and does not support any natural resources. 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 -32 (Bayview Planned Community) amendment and
zoning designation are consistent with the proposed General Plan Amendment (GP2015-
004) that changes the land use category from CO -G to PI, and amends Anomaly No. 22
to replace the existing allowed development limits of 8,000 square feet for restaurant or
seventy thousand (70,000) square feet for office with 85,000 square feet for a RCFE; and
Ordinance No. 2019 -
Page 4 of 5
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 PC -
32 Zoning District of the NBMC.
NOW, THEREFORE, the City Council of the City of Newport Beach ordains as
follows.-
Section
ollows:
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. PD2015-005 as depicted in
Exhibit A, attached hereto and incorporated herein by reference, changing the land use
designation for Area 5 of the Bayview Planned Community (PC -32) Zoning District from
Restaurant Site/Administrative Office to RCFE with a maximum allowed gross floor area
of 85,000 square feet and amend other land use and development standards.
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 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 Harbor Pointe Senior Living Project Final Environmental Impact
Report (SCH No. 2016071062) was prepared for the project in compliance with CEQA,
the State CEQA Guidelines, and City Council Policy K-3. By Resolution No. 2019-_, the
City Council, having final approval authority over the project, adopted and certified as
complete and adequate the Harbor Pointe Senior Living Project Final Environmental
Impact Report (SCH No. 2016071062) and adopted "Mitigation Monitoring and Reporting
Program." Resolution No. 2019-_ is hereby incorporated by reference.
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Ordinance No. 2019 -
Page 5 of 5
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 12«' day of February 2019, and adopted on the 26th day of
February, 2019, by the following vote, to -wit:
AYES:
NAYS:
ABSENT:
DIANE B. DIXON, MAYOR
ATTEST:
LEILANI 1. BROWN, CITY CLERK
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
_11 f /�_, V0jai.5k,
qC AA �? N . HARP, CITY ATTORNEY
Exhibit A: PC -32 (Bayview Planned Community Development Plan and Development
Standards)
4-8
Exhibit A
BAYVIEW
PLANNED COMMUNITY DEVELOPMENT PLAN
AND DEVELOPMENT STANDARDS
CITY OF NEWPORT BEACH
August 15, 1985
Amendment No. 644
Resolution No. 87-24
Adopted February 9, 1987
Amendment No. 825
Resolution No. 95-115
Adopted October 9, 1995
Planned Community Amendment No. PD2010-004(PA2010-062)
Ordinance No. 2010-12
Adopted July 6, 2010
Planned Community Amendment No. PD2015-005 (PA2015-210)
Ordinance No. 2019 -
Adopted February 26, 2019
TABLE OF CONTENTS
Page No.
INTRODUCTION 1
GENERAL NOTES 2
DEFINITIONS 3
SITE STATISTICS 5
AREA 1, MULTIFAMILY RESIDENTIAL 6
AREAS 1 AND 2, SINGLE-FAMILY RESIDENTIAL 9
AREA 3, PROFESSIONAL AND ADMINISTRATIVE OFFICE 12
AREA 4, HOTEL SITE
15
AREA 5, RESIDENTIAL CARE FACILITY FOR THE ELDERLY (RCFE) 18
AREA 6, BUFFER
23
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INTRODUCTION
Location
The Bayview project site is located on the southwest corner of the intersections of Bristol
Street South and Jamboree Road in the Santa Ana Heights area of unincorporated Orange
County. To the north is Bristol Street South and the extension of the Corona del Mar
Freeway. West of the site is a residential area of single-family homes. To the south is
Upper Newport Bay.
Existing Zoning
• PA/95 PD: Professional Administrative
• CC/90: Community Commercial
• CC/35: Community Commercial
• R1-2975 PD (2975): Single family, 2,975 square feet minimum lot size.
• R2-2, 400: Multi -family, 2,400 square feet minimum area per unit.
B 1: Buffer.
The development standards set forth herein will provide for the development of the
subject property, in accordance with these standards and those of the City of Newport
Beach.
Land Uses
The Bayview development is designated for residential, recreational, commercial,
professional, institutional, hotel, and office uses as shown on Exhibit 1.
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GENERAL NOTES
1. Water service to the Planned Community District will be provided by the Irvine
Ranch Water District or the City of Newport Beach.
2. Sewage Disposal service facilities to the Planned Community will be provided by the
Irvine Ranch Water District.
3. Except as otherwise stated in this Planned Community text, the requirement of the
Newport Beach Zoning Ordinance shall apply. Where a conflict exists, the Planned
Community text shall supersede.
4. The contents of this text notwithstanding, all construction within the Planned
Community boundaries shall comply with all provisions of the Uniform Building
Code and the various mechanical codes related thereto except as noted in the
Preannexation Agreement.
5. A pedestrian and bicycle trail system shall be provided as shown on the approved
Tentative Map of Tract No. 12212. The system shall be reviewed and approved by
the City of Newport Beach Public Works Department.
6. Affordable housing shall be provided as per the Bayview Preannexation Agreement.
7. Park dedication shall be provided as per the Bayview Preannexation Agreement.
2
4-12
Definitions
The following definitions shall apply to the development of Bayview Planned
Community.
1. Gross Acreage shall mean the entire site area within the project boundary as shown on
the approved Tentative Map of Tract 12212.
2. Parcel Map Net Area shall mean the entire area within the project boundary line
excluding previously dedicated perimeter streets.
3. Building Acreage shall mean the entire site area within the project boundary
excluding streets, park dedication, areas with existing natural slopes greater than 2:1,
and natural floodplains.
4. Cluster Unit Development shall mean a combination or arrangement of attached or
detached dwellings and their accessory structures on contiguous or related building
sites where the yards and open spaces are combined into more desirable arrangements
or open spaces and where the individual sites may have less than the required average
of the district but the density of the overall development meets the required standard.
5. Conventional Subdivision on a Planned Community Concept shall mean a
conventional subdivision of detached dwellings and their accessory structures on
individual lots where the lot size may be less than the required average for the district
but where open space areas are provided for the enhancement and utilization of the
overall development.
K
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PAGE INTENTIONALLY BLANK
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Facility for the Elderly
6 Buffer 16
Total Gross Area 64.2
BAYVIEW SITE STATISTICS
Maximum
Gross
Area
Acreage
1 Multi -family
6.1
Residential
- -
2 Single family
17.4
Residential
- 27,500
3 Professional
16.8
Administrative Office
- 85,000
• Office
-
• Retail
-
4 Hotel Site
6.3
5 Residential Care
1.6
Facility for the Elderly
6 Buffer 16
Total Gross Area 64.2
BAYVIEW SITE STATISTICS
Maximum
Maximum Maximum
D.U.
Hotel Rooms Gross Sq.Ft.
88
- -
145
- -
-
- 660,000
-
- 27,500
-
300 -
-
- 85,000
E
4-15
AREA 1, MULTIFAMILY RESIDENTIAL
Intent
The inclusion of multi -family residential units in the Bayview Planned Community
District provides quality housing opportunities to the general public.
Permitted Uses
1. Single-family dwellings/attached or detached.
2. Noncommercial recreation facilities.
3. Duplexes.
4. Dwelling groups and multiple -family dwellings.
5. Residential condominium projects and community apartment projects.
6. Sewage lift stations.
7. Community care facilities service six or fewer persons.
8. Any other uses that in the opinion of the City of Newport Beach Planning
Commission are of a similar nature.
9. Gated community with vehicular access control facilities.
Temporary Uses Permitted
1. Model homes, temporary real estate offices, and signs.
2. Temporary use of a mobile home residence during construction.
3. Real estate signs.
6
4-16
Accessory Uses Permitted
The following accessory uses and structures are permitted when customarily associated
with and subordinate to a permitted principal use on the same building site.
1. Garages and carports.
2. Swimming pools and spas.
3. Fences and walls.
4. Signs,
5. Any other accessory use or structure which the Planning Commission finds to be of a
similar nature.
Development Standards/Attached Residential
1. Maximum Height Limits
All buildings shall not exceed an average of 35 feet.
2. Setbacks
A minimum setback of fifteen feet shall apply to all structures other than garages
adjacent to public streets; except that balconies and patios may encroach six feet
into the required setback.
Architectural features such as but not limited to cornices, eaves, and wingwalls
may extend two and one-half (2-1/2) feet into the required setback from a public
street.
Setbacks shall be measured from the ultimate right-of-way line.
3. Setbacks from Other Property Lines and Structures
a. A minimum of first -story front yard setback of five feet shall be required.
This setback shall be measured from the back of curb or in the event that
sidewalks are constructed, from back of sidewalk. The second story front
may be constructed adjacent to the back of curb or in the event that
sidewalks are constructed, adjacent to back of sidewalk.
b. All main residential structures shall be a minimum of eight feet apart.
This shall be measured from face of finished wall to face of finished wall.
4-17
C. Detached garages shall be separated from main residential structures a
minimum of eight feet. This also shall be measured from face of finished
wall to face of finished wall.
d. Garages with direct access from private streets shall be set back a
minimum of five feet form back of curb, or in the event that sidewalks are
constructed, form back of sidewalk.
e. A minimum five-foot setback shall occur from the most northerly property
line of lots 5, 6, and 7 on the Tentative Map of Tract 1236.
4. Fences, Hedges and Walls
Fences shall be limited to a maximum height of eight feet.
5. Architectural Features
Architectural features, such as but not limited to cornices, eaves, and wing walls,
may extend two and one-half (2-1/2) feet into any front, side or rear yard setback.
6. Parking
Two covered spaces per unit plus .36 guest parking spaces per unit will be
required. 25% of all guest parking may be compact spaces. Guest parking shall
be clustered with a minimum of tow spaces per cluster.
8
AREAS 1 AND 2, SINGLE FAMILY RESIDENTIAL
Intent
The R1 designation is established to provide for the development of a medium density
single family residential neighborhood. The area provides a method whereby land may be
developed to utilize design features which take advantage of modern site planning
techniques. The intent is to produce an integrated development project providing an
environment of stable, desirable character which will be in harmony with existing and
potential development of the surrounding neighborhood.
Permitted Uses
1. Single-family dwellings.
2. Noncommercial recreation facilities.
3. Sewage lift stations.
4. Any other uses that in the opinion of the City of Newport Beach Planning
Commission are of a similar nature.
5. Gated community with vehicular access control facilities.
Temporary Uses Permitted
1. Model homes, temporary real estate offices, and signs.
2. Temporary use of a construction trailer.
3. Real estate signs.
Accessory Uses Permitted
The following accessory uses and structures are permitted when customarily associated
with and subordinate to a permitted principal use on the same building site.
1. Garages and carports.
2. Swimming pools and spas.
3. Fences and walls.
9
HMO
4. Patio covers.
5. Any other accessory use or structure which the Planning Commission finds to be of a
similar nature.
Development Standards
1. Maximum Height Limits
All buildings shall not exceed an average of 35 feet.
2. Building Site Area
The minimum building site area shall be 2,975 square feet.
3. Setbacks
a. Front Yard
(1) Where garages face the street, the front yard setback shall be a
minimum of five feet from back of curb or in the event sidewalks
are constructed, minimum of five feet from back of sidewalk.
(2) Where garages face the alley the front setback shall be a minimum
of eight feet from back of curb or in the event sidewalks are
constructed, minimum of eight from back of sidewalk.
b. Side Yard
(1) Minimum setback of four feet from property line with a ten foot
minimum setback between buildings.
C. Rear Yard
(1) Where garages face the street, the rear yard setback shall be a
minimum of eight feet.
(2) Where garages face the alley rear setback shall be a minimum of
fifteen feet from centerline of alley.
4. Fences, Hedges, and Walls
Fences shall be limited to a minimum height of eight feet except within the front
yard setback where fences, hedges and walls shall be limited to three feet.
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5. Trellis
Open trellis and beam construction, and patio covers where reciprocal side yard
easements exist, shall be permitted within six feet of a residential structure on
adjacent property. Trellis and beam construction and patio covers shall be
permitted to extend to within three feet of the residential dwelling on the adjacent
property if the structure is open on three sides and the total area is 400 square feet
or less. Where a corner dwelling exists adjacent to a private street or drive, open
trellis and beam construction and patio covers shall be permitted to extend within
three feet of a property line except in such cases where an intervening wall exists,
such structure may not extend beyond said wall. Limited to 9' 0" in height
6. Parking
Parking for residential uses shall be in the form of not less than two (2) covered
parking spaces on-site per dwelling unit.
7. Architectural Features
Architectural features, such as but not limited to cornices, eaves, fireplaces, bay
windows and wingwalls, may extend two and one-half (2-1/2) feet into any front,
side or rear yard setback.
8. Pools, Spas, Air Conditioning and Related Equipment
Where reciprocal easements exist, pools and spas may be located in the reciprocal
easement; however, no pool, spa or air conditioning equipment shall be permitted
in the reciprocal easement. All pool, spa and air conditioning equipment shall be
sound attenuated in such a manner as to achieve a maximum sound level of
55dBA at the property line.
1. Equipment may not cross property line.
2. Pools or spas may cross property line up to easement line.
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AREA 3, PROFESSIONAL AND ADMINISTRATIVE OFFICE
Intent
The intent is to provide areas for the development of professional and administrative
offices and related uses in locations of close proximity to residential areas. These uses
can conveniently serve the public and create a suitable environment for professional and
administrative office buildings especially designed for this purpose. Uses in the area have
been located on sites large enough to provide for landscaped open spaces and offstreet
parking facilities.
The area is intended to be located on heavily traveled streets or adjacent to commercial or
industrial districts. The land may be developed to utilize design features which take
advantage of modern site planning techniques.
Permitted Uses
1. Professional offices.
2. Administrative offices.
3. Restaurants, bars, theater/nightclubs and delicatessens.
4. Accessory structures and uses necessary and customarily incidental to permitted uses
including dry cleaners, barber shops, copy centers, shoe repairs, photo finishing,
stationers, convenience markets and onsite liquor sales.
5. Business and real estate signs.
6. Gas stations, auto services, and detailing in parking structures.
7. Health Club.
8. Offstreet parking structures.
9. Landscaped areas, parks, and open space areas when integrated into the development
project.
10. Any other uses that in the opinion of the City of Newport Beach Planning
Commission are of similar nature.
11. Medical Offices
12. Outpatient surgery facility
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Permitted Uses Subject to Use Permit
1. Helistop.
Development Standards
1. Maximum Height Limits
All buildings shall not exceed 95 feet in height. This height shall be measured
from first floor elevation (excluding subterranean levels) to ceiling elevation of
uppermost floor. An additional fifteen (15') feet height extension is permitted
only to accommodate and screen mechanical equipment.
2. Building Site Area
The minimum building site area shall be 10,000 square feet.
Minimum Building Site Width: There is no restriction on building site width.
Minimum Building Site Depth: There is no restriction on building site depth.
Maximum Gross Floor Area: The total gross floor area of the combined two
commercial office building structures shall not exceed 660,000 gross square feet.
There is no gross floor area or building coverage restrictions on individual
buildings in cluster developments provided that the provisions stated above are
met, adequate offstreet parking is provided, and provisions are made for the
maintenance of common areas and access to individual building sites. This is
subject to the review of the Director of Planning and the Director of Public
Works.
3. Setbacks
Front, side, and rear yard setbacks shall each be ten feet from the property line.
Distances between buildings shall be in compliance with the Uniform Building
Code.
4. Streets and Driveways
Streets and driveways shall provide adequate vehicular circulation for service and
emergency vehicles for the project and the area within which it is located.
Required widths and improvements shall be established by the recorded Tract
Map.
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5. Offstreet Parking
Offstreet parking shall be provided in accordance with the approved parking plan
and Preannexation Agreement.
6. Trash and Storage Area
All storage of cartons, containers, and trash shall be shielded from view within a
building or within an area enclosed by a wall not less than six feet in height.
7. Landscaping
Detailed landscaping and irrigation plans shall be prepared by a licensed
landscape architect, licensed landscaping contractor, or architect, and shall be
reviewed by the Department of Parks, Beaches, and Recreation and approved by
the Director of Planning and Director of Public Works.
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AREA 4 HOTEL SITE
Intent
The Community Commercial designation provides areas for commercial uses which offer
a wide range of goods and services including those facilities for overnight
accommodations, shopping goods, convenience goods and services, and food services.
Permitted Uses
1. Hotels and motels
2. Ancillary structures and uses necessary and customarily incidental to hotels and
motels including but not limited to:
• Retail businesses.
• Restaurants, bars and theater/nightclubs.
• Service businesses.
0 Automobile parking lots and structures.
• Recreation facilities.
• Day nurseries.
• Public and private parks and playgrounds.
0 Financial institutions.
• Public/private utility buildings and structures.
• Self-service laundry and dry cleaning facilities.
Any other uses that in the opinion of the City of Newport Beach Planning
Commission are of a similar nature.
Temporary Uses Permitted
1. Commercial coaches.
Permitted Uses Subject to Use Permit
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1. Automobile washing.
2. Health Clubs.
3. Helistops.
4. Mini -storage facilities.
5. Public utility exchanges and substations.
6. Any other use which the Planning Commission finds consistent with the purpose and
intent of this area.
Permitted Accessory Uses
The following accessory uses and structures are permitted when customarily associated
with and subordinate to a permitted principal use on the same building site.
buildings.
1. Detached buildings.
2. Fences and walls.
3. Signs.
4. Accessory uses and structures which the Planning Commission finds to be of a similar
nature.
5. Onsite liquor sales.
Prohibited Uses
1. Automobile repair garages, fender and body repair, and paint shops.
2. Automobile service stations.
3. Automobile wrecking, junk, and salvage yards.
4. Beverage bottling plants.
5. Cleaning, dyeing, and laundry plants.
6. Ice Production.
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7. Rental and sales agencies for agricultural, industrial, and construction equipment.
8. Rental and sales agencies for trailers, boats, trucks, automobiles, and recreational
vehicles.
9. Tire retreading.
10. Warehouses, contractor's storage yards, and work and fabricating areas.
11. Welding shops.
12. Wholesale bakeries.
Development Standards
1. Maximum Height Limits
Buildings shall not exceed 90 feet. This height shall be measured from first floor
elevation (excluding subterranean levels) to ceiling elevation of uppermost floor.
An additional fifteen (15') feet height extension is permitted only to accommodate
and screen rooftop mechanical equipment.
2. Building Site Area
There are no specifications for minimum building site area.
3. Offstreet Parking
Offstreet Parking shall be provided in accordance with the and Preannexation
Agreement. Any changes to said plan shall be approved by the City of Newport
Beach Planning Director.
4. Structural Setbacks
Community Commercial uses which abut:
Use Front Yard Side and Rear Yards
Commercial 5 feet 0 feet
Residential 5 feet 20 feet
Professional Administrative 5 feet 0 feet
Street setbacks: Front, side and rear yard setbacks shall each be ten feet from the
property line. Distances between buildings shall be in compliance with the
Uniform Building Code.
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5. Loading
All loading and unloading operations shall be performed on the site and loading
platforms and areas shall be screened by a landscape or architectural feature.
6. Trash and Storage Area
All storage of cartons, containers and trash shall be shielded from view within a
building or within an area enclosed by a wall not less than 6 feet in height.
7. Landscaping
Detailed landscaping and irrigation plans shall be prepared by a licensed
landscape architect, licensed landscaping contractor, or architect, and shall be
reviewed by the Department of Parks, Beaches, and Recreation and approved by
the Director of Planning and Director of Public Works.
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AREA 5 RESIDENTIAL CARE FACILITY FOR THE ELDERLY (RCFE)
Intent
The Residential Care Facility for the Elderly (RCFE) designation provides areas for
facilities which serve seniors in need of assisted living, memory care and similar uses.
The purpose of this designation is to support an "aging in place" development that
offers a range of living arrangements for senior citizens that includes physical and
programmed social connectivity, and supportive services.
Permitted Uses Subject to Use Permit
1. RCFE as defined by the State of California including assisted living facilities and
memory care services serving the elderly.
2. Any other uses that in the opinion of the City of Newport Beach Planning
Commission are of a similar nature.
Temporary Uses Permitted
1. Temporary uses are subject to the provisions of NBMC Section 20.52.040 (Limited
Term Permits) or its successor section.
Permitted Accessory Uses
The following accessory uses are permitted when customarily associated with and
subordinate to a permitted principal use on the same building site.
1. Retail businesses as an accessory use to the RCFE.
2. Service businesses as an accessory use to the RCFE.
Prohibited Uses
1. Any use specifically not listed as permitted or conditionally permitted.
Development Standards
1. Maximum Height Limits
Buildings shall not exceed 35 feet. This height shall be measured from first floor
elevation (excluding subterranean levels) to ceiling elevation of uppermost floor.
An additional ten (10') feet height extension is permitted only to accommodate
and screen mechanical equipment.
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2. Maximum Square Feet
Floor area limit is 85,000 sq. ft.
3. Building Site Area
Minimum building site area is 1.5 acres
4. Off -Street Parking
Off-street parking shall be provided at a ratio of not less than one space per three beds.
5. Setbacks
Front (Bayview Place): 10 feet
Right Side (Bristol Street): 15 feet
Left Side: 40 feet
Rear: 40 feet
6. Other Development Standards
Unless otherwise approved by the review authority, all other development standards
including those related to signs, fences, walls, lighting, noise, solid waste and recycling,
and landscaping shall comply with the NBMC Title 20 (Planning and Zoning) and any
other applicable titles of the NBMC.
7. Loading
All loading and unloading operations shall be performed on the site and loading
platforms and areas shall be screened by a landscape or architectural feature.
8. Trash and Storage Area
All storage of cartons, containers and trash shall be shielded from view within a
building or within an area enclosed by a wall not less than 6 feet in height.
9. Landscaping
Detailed landscaping and irrigation plans shall be prepared by a licensed
landscape architect, licensed contractor, or architect, and shall be reviewed and
approved by the Community Development Director.
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AREA 6, BUFFER
Intent
The Buffer designation is established to provide open space forth purpose of buffering
two areas of use that are incompatible, preserving an area with unique or sensitive
environmental features, linking other open space areas, or shaping urban form, and for
reservation of potential road right-of-way.
Permitted Uses
1. Back Bay access.
2. Marine preserves.
3. Passive parks and greenbelts.
4. Riding and hiking trails.
5. Fences.
6. Viewpoints.
7. Wildlife corridors.
8. Any other use that in the opinion of the City of Newport Beach Planning Director is
consistent with the above stated uses, purposes, and intent of the area.
9. Roadways.
10. Desilting basins and drainage facilities.
11. Active parks and playgrounds.
12. Overhead or underground utility facilities.
13. Walls or opaque fences over 3-1/2 feet in height.
14. Any other use which the Planning Commission finds consistent with the purpose and
intent of this area.
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Permitted Accessory Uses
Accessory uses and structures which are customarily associated with and subordinate to a
permitted principal use on the same building site and which are consistent with the
purpose and intent of this district are permitted.
Site Development Standards
Building Site Area
There is no minimum building site area.
2. Building Height
The maximum building height shall be 18 feet.
3. Building Setbacks
Building Setbacks shall be 20 feet from all property lines.
4. Signage
No signs shall exceed six square feet in area.
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Attachment B
Ordinance No. 2019-4 (DA2018-006)
4-33
ORDINANCE NO. 2019- 4
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
NEWPORT BEACH, CALIFORNIA, APPROVING
DEVELOPMENT AGREEMENT NO. DA2018-006 FOR THE
HARBOR POINTE SENIOR LIVING PROJECT — A
SENIOR CONVALESCENT AND CONGREGATE CARE
FACILITY LOCATED AT 101 BAYVIEW PLACE (PA2015-
210)
WHEREAS, an application was filed by Harbor Pointe Senior Living LLC of
California ("Applicant"), with respect to property located at 101 Bayview Place, and legally
described as Lot 1 of Tract No. 12528 in the City of Newport Beach, County of Orange,
State of California, as per Map recorded in Book 551 Pages 38 through 41 inclusive of
Miscellaneous Maps, in the Office of the County Recorder of said County, Assessor's
Parcel No. 442-283-05 ("Property");
WHEREAS, the Applicant proposes the demolition of an existing approximately
8,800 square -foot restaurant ("Kitayama") to accommodate the development of an
approximately 85,000 square -foot, three-story senior convalescent and congregate care
facility (i.e., memory care and assisted living) as a State -licensed Residential Care Facility
for the Elderly ("RCFE") with 120 beds ("Project");
WHEREAS, in order to implement the Project, the Applicant requests or requires
the following approvals from the City of Newport Beach ("City"):
• General Plan Amendment ("GPA") — The current land use designation is
General Commercial Office ("CO -G") which allows 8,000 square feet for
restaurant use or 70,000 square feet for office use. The general plan amendment
would change the CO -G land use designation to Private Institutions ("PI") and
amend Anomaly No. 22 to allow the 85,000 square foot RCFE (Table LU2 and
associated figures);
• Planned Community Development Plan Amendment (Zoning) — To change
the allowed land uses and amend development standards in Area 5 of the
Bayview Planned Community ("PC -32") Zoning District;
• Major Site Development Review — To ensure the Project is developed 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);
4-34
Ordinance No. 2019 -
Page 2 of 5
Conditional Use Permit — To allow the use of the Property as a 120 bed RCFE
(memory care and assisted living facility) with conditions of approval that protect
the health, safety and general welfare of the surrounding community;
Development Agreement — The applicant has requested a development
agreement, which will provide for public benefits as the project is implemented;
and
Environmental Impact Report ("EIR") — To address reasonably foreseeable
environmental impacts of the Project with corresponding mitigation measures that
reduce those environmental impacts in accordance with the California
Environmental Quality Act ("CEQA") in 14 California Code of Regulations Section
15000 et seq. and the California Public Resources Code Section 21000 et. seq.
WHEREAS, the Property is located within the PC -32 Zoning District and the
General Plan Land Use Element category is designated as CO -G;
WHEREAS, the Property is not located within the coastal zone; therefore, a coastal
development permit is not required;
WHEREAS, on February 23, 2017, the Planning Commission held a study session
in the Council Chambers located at 100 Civic Center Drive, Newport Beach, California,
to provide initial direction on the Project. No action was taken at the study session.
Although not required, the City mailed a courtesy public notice of this study session to
property owners within a 300' radius of the Property;
WHEREAS, on September 13, 2018, the Planning Commission held a study
session in the Council Chambers located at 100 Civic Center Drive, Newport Beach,
California, to receive a project update and review the draft EIR. No action was taken at
the study session. Although not required, the City mailed a courtesy public notice of this
study session to property owners within a 300' radius of the Property;
WHEREAS, on December 6, 2018, the Planning Commission held a public hearing
in the Council Chambers located at 100 Civic Center Drive, Newport Beach, California. A
notice of time, place and purpose of the public hearing was given in accordance with
California Government Code Section 54950 et. seq. ("Ralph M. Brown Act") and Chapter
20.62 of the Newport Beach Municipal Code ("NBMC"). Evidence, both written and oral, was
presented to, and considered by, the Planning Commission at this public hearing;
4-35
Ordinance No. 2019 -
Page 3 of 5
WHEREAS, the Planning Commission adopted Resolution No. PC2018-033 by a
unanimous vote of 6-0 recommending approval of the Project, and the land use entitlements
referenced above, to the City Council;
WHEREAS, on February 12, 2019, the City Council held a public hearing 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 Ralph M. Brown
Act and NBMC. 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. 2019 -
approving General Plan Amendment No. GP2015-004 to change the land use designation
for the Property from CO -G to PI, and amend Anomaly No. 22 to replace the existing allowed
development limits of eight thousand (8,000) square feet for restaurant or 70,000 square
feet for office with 85,000 square feet for a RCFE;
WHEREAS, the City Council adopted Ordinance No. 2019-_ to change the land
use designation for Area 5 of the Bayview Planned Community (PC -32) Zoning District
from Restaurant Site/Administrative Office to RCFE with a maximum allowed gross floor
area of 85,000 square feet and amend other land use and development standards.
WHEREAS, a development agreement is requested by the applicant as part of the
requested approvals for the proposed project;
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
Harbor Pointe Senior Living Project Final EIR (SCH No. 2016071062); 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:
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Ordinance No. 2019 -
Page 4 of 5
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. DA2018-006, 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.
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 Harbor Pointe Senior Living Final EIR (SCH No. 2016071062)
was prepared for the project in compliance with CEQA, the State CEQA Guidelines, and
City Council Policy K-3. By Resolution No. 2019-_, the City Council, having final
approval authority over the project, adopted and certified as complete and adequate the
Harbor Pointe Senior Living Project Final Environmental Impact Report (SCH No.
2016071062) and adopted "Mitigation Monitoring and Reporting Program." Resolution
No. 2019-_ is hereby incorporated by reference.
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Ordinance No. 2019 -
Page 5 of 5
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 12th day of February 2019, and adopted on the 26th day of
February, 2019, by the following vote, to -wit -
AYES:
NAYS:
ABSENT:
DIANE B. DIXON, MAYOR
ATTEST:
LEILANI I. BROWN, CITY CLERK
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
��AA N C. HARP, CITY ATTORNEY
Attachment: Exhibit A - Development Agreement No. DA2018-006
4-38
Exhibit "A"
Development Agreement No. DA2018-006
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.
DEVELOPMENT AGREEMENT
between
CITY OF NEWPORT BEACH
and
HARBOR POINTE SENIOR LIVING, LLC
concerning
101 BAYVIEW PLACE
.o
DEVELOPMENT AGREEMENT
(Pursuant to Newport Beach Municipal Code Chapter 15.45 and California Government
Code Sections 65864-65869.5)
This DEVELOPMENT AGREEMENT ("Agreement" or "Development Agreement") is
dated for reference purposes as of the _ day of _, 2019 ("Agreement Date"), and is being
entered into by and between the CITY OF NEWPORT BEACH ("City") a California municipal
corporation and charter city, organized and existing under and by virtue of its Charter and the
Constitution, and the laws of the State of California, and HARBOR POINTE SENIOR LIVING,
LLC, a California limited liability company ("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 1.50
acre Kitayama Restaurant project site, located at 101 Bayview Place (APN # 442-283-05), and
generally bounded by Bristol Street on the north and Bayview Place on the east ("Property"). As
of the Agreement Date, the Property is owned by Kodaka Inc., a California Corporation
("Kodaka"), 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. 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.
C. On March 13, 2007, the City Council adopted Ordinance No. 2007-6, entitled
"Ordinance Amending Chapter 15.45 of City of Newport Beach Municipal Code Regarding
Development Agreements" ("Development Agreement Ordinance"). This Agreement is
consistent with the Development Agreement Ordinance.
D. 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 total Public Benefit Fee and Mitigation Impact Fee (as defined herein) in the
sum of one million dollars ($1,000,000). The allocation of the amount of the Public Benefit Fee
and Mitigation Impact Fee shall be within sole discretion of the City; however, payment of the
Public Benefit Fee and Mitigation Impact Fee is intended to fully satisfy Developer's obligation
under MM FIRE -1 from the Harbor Pointe Senior Living Project Draft Environmental Impact
4-41
Report (SCH No. 2016071062). Developer shall pay the Public Benefit Fee and Mitigation
Impact Fee to the City within sixty (60) calendar days of the City's issuance of the first building
permit for the Project (as defined herein).
E. Although not a part of this Agreement, and pending future negotiation with the
recipient parties, Developer shall make up to one hundred and fifty thousand dollars ($150,000)
available to any or all of the following: Newport Bay Conservancy, Bayview Court Homeowners
Association and the Bayview Terrace Homeowners Association to support unspecified future
programs, activities and/or improvements. The City has no control and is not involved in any
way whatsoever with the agreement between the Developer and the aforementioned parties
regarding the funding of the unspecified future projects, activities, and/or improvements. Any
mention of the proposed agreement between the Developer and the Newport Bay Conservancy,
Bayview Court Homeowners Association and/or the Bayview Terrace Homeowners Association
in this Development Agreement is merely a recital and is in no way connected to or required
under this Agreement.
F. This Agreement is consistent with the City of Newport Beach General Plan,
including, without limitation, the Property's proposed "Private Institutions" General Plan
designation that is being adopted and approved by the City Council concurrently with the
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# 2016071062)
("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 December 6, 2018, 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.
1. On February 12, 2019, 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 . 2019,
consistent with applicable provisions of the Development Agreement Statute and Development
Agreement Ordinance, the City Council adopted its Ordinance No. ("Adopting
Ordinance"), finding this Agreement consistent with the City of Newport Beach General Plan
and approving this Agreement.
AGREEMENT
MA
NOW, THEREFORE, City and Developer agree as follows:
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:
"Action" shall have the meaning ascribed in Section 8.10 of this Agreement.
"Adopting Ordinance" shall mean City Council Ordinance No. 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.
"CEQA" 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 el seq.), as the same may be amended from time to time.
"City" 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
4-43
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.
"Developer" shall mean Harbor Pointe Senior Living, LLC, a California limited liability
company, 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. GP2015-004 to amend
Anomaly No. 22 to eliminate the existing allowed development limits of 8,000 square feet of
restaurant or 70,000 square feet of office and allow only an 85,000 square feet for a residential
care facility for the elderly ("RCFE") and to change the land use designation for the property
from General Commercial Office ("CO -G") to Private Institutions ("PI"); (3) Planned
Community Development Plan Amendment No. PD2015-005 to change the land use allowances,
restrict the permitted use to only an RCFE, and change some development standards in the
Bayview Planned Community ("PC -32") Development Plan; (4) Major Site Development
Review to ensure site development is in accordance with the applicable planned community and
zoning code development standards pursuant to Newport Beach Municipal Code ("NBMC")
Section 20.52.080 (Site Development Reviews); (5) Conditional Use Permit No. UP2015-047 to
allow the operation of a 120 -bed RCFE; (6) the EIR (State Clearinghouse No. 2016071062); and
(7) 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
4
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
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
ninety (90) 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 seq., as amended ("CERCLA"); the Solid Waste Disposal Act, as amended by the Resource
Conservation and Recovery Act of 1976, 42 U.S.C. Sections 6901, et 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 SeMc ., 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 M., 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 seg., as amended; the Federal Safe
Drinking Water Act, 42 U.S.C. Sections 300f et seq., as amended; the Federal Radon and Indoor
E
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Air Quality Research Act, 42 U.S.C. Sections 7401 et se ., as amended; the Occupational Safety
and Health Act, 29 U.S.C. Sections 651 et sea., 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
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.
"Mitigation Impact Fee" means the funds meant to satisfy the requirements of MM FIRE-
"Mortgap,e" 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, the demolition of an existing
approximately 8,800 -square -foot restaurant building ("Kitayama") to accommodate the
development of an approximately 85,000 -square -foot, three-story senior convalescent and
congregate care facility (i.e., memory care and assisted living as a State -licensed RCFE) with
120 beds, consistent with the Development Plan and 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 101 Bayview Place in the City, as described in Exhibit A and
depicted on Exhibit B.
"Public Benefit Fee" shall mean any amount of the $1,000,000 fee paid by the Developer
which is in excess of the Mitigation Impact Fee.
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"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.
This Agreement is consistent with the General Plan and Bayview Planned Community
("PC -32") 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 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."
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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
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; (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 and Mitigation Impact Fee.
As consideration for City's approval and performance of its obligations set forth in this
Agreement, Developer shall pay to City a fee in the amount of one million dollars ($1,000,0000),
which shall be in addition to any other fee or charge to which the Property and the Project would
otherwise be subject. The allocation of said amount between the Public Benefit Fee and
Mitigation Impact Fee shall be within sole discretion of the City. Payment of the Public Benefit
Fee and Mitigation Impact Fee shall fully satisfy the Developer's obligation under MM FIRE -1
from the Harbor Pointe Senior Living Project Draft Environmental Impact Report (SCH No.
2016071062).
The Developer shall pay the Public Benefit Fee and Mitigation Impact Fee to the City
within sixty (60) days of the City's issuance of the Project's first building permit. Should the
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Developer fail to pay the Public Benefit Fee and Mitigation Impact Fee within sixty (60) days of
the City's issuance of the Project's first building permit, the Developer shall be in default of the
Agreement, as further described in Section 8 of this Agreement.
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.
The City shall use the Mitigation Impact Fee, in part, to fulfill Developer's obligation
under MM FIRE -1 from the Harbor Pointe Senior Living Project Draft Environmental Impact
Report (SCH No. 2016071062). To satisfy MM FIRE -1, Developer is responsible for a
proportional share of the cost for purchasing and equipping a new rescue ambulance with patient
transport and advanced life support (ALS) capabilities to be located at Santa Ana Heights Fire
Station No. 7 ("Ambulance"), estimated to cost four hundred and fifty -thousand dollars
($450,000.00). The funds necessary for the Ambulance are to be apportioned amongst various
new developments in the area through various means, such as development agreements. The
City will determine the proportional share of the cost of the Ambulance at a future date;
however, given that the Public Benefit Fee and Mitigation Impact Fee is one million dollars
($1,000,000), the fees set forth herein are sufficient to ensure MM FIRE -1 is satisfied and that
there is consideration for this Agreement. Any portion of the one million dollars ($1,000,000) in
excess of what is necessary for the Mitigation Impact Fee, shall be deemed to be the Public
Benefit Fee.
Developer acknowledges by its approval and execution of this Agreement that it is
voluntarily agreeing to pay the Mitigation Impact Fee, that its obligation to pay the Mitigation
Impact 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 Mitigation Impact 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 Mitigation Impact 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.l .1 Public Benefit Fee and Mitigation Impact Fee Allocation
M
The City Council retains sole and absolute discretion to determine how the Public
Benefit Fee and Mitigation Impact Fee shall be allocated and no final decisions have been made
as of the Agreement Date.
3.2 Reserved
3.3 Reserved
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, if any. or associated conditions of approval, consistent with City
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of Newport Beach Municipal Code Section 19.12.090. This Agreement does not constitute a
promise or commitment by City to approve any such permit or approval, or to approve the same
with or without any particular requirements or conditions, and City's discretion with respect to
such matters shall be the same as it would be in the absence of this Agreement.
4.2 No Conflicting 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 Authori
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
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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.
4.3.2.1 Vested Development Impact Fees. All City development impact
fees shall be fixed at the rates in place on the Agreement Date as shown on attached Exhibit C.
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
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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
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).
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5. Amendment or Cancellation of Avareement
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.
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)
calendar days prior to each anniversary of the Effective Date during the Term.
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) calendar days to cure any noncompliance that relates to
the payment of money and thirty (30) calendar days to cure any other type of noncompliance. If
a cure not relating to the payment of money cannot be completed within thirty (30) calendar days
for reasons which are beyond the control of Developer, Developer must commence the cure
within such thirty (30) calendar days and diligently pursue such cure to completion. If
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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.
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) calendar days if the
Default relates to the failure to timely make a monetary payment due hereunder and not less than
thirty (30) calendar 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) calendar 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)
calendar days of receiving the Notice of Default, and a public hearing shall be scheduled at the
next available City 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) calendar 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) calendar 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.
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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)
calendar 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
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.
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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 and Mitigation Impact Fee 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 No 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 not recover any of its 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, but
are not limited to, court costs, expert witness fees, attorneys' fees, City staff costs (including
overhead), and costs of investigation and preparation before initiation of the Action.
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
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a monetary obligation, including without limitation Developer's obligation to pay Public Benefit
Fee and Mitigation Impact Fee, 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 (1) 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
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.
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10.3 Environmentallndemnity.
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 seg.) 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
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.
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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, as determined in the City's
sole discretion, 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. Any determination by the City in regards to the second
paragraph of Section 11, subpart (iv) (A), (B), shall be documented in writing.
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
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
Q
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 Morwagee 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) calendar days after receiving a Notice of Default with respect to a monetary
Default and within sixty (60) calendar 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) calendar 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) calendar day period. In the case of a non -monetary
Default that cannot with diligence be remedied or cured within sixty (60) calendar 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)
calendar 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 Reserved
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
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With a copy to: City Attorney
City of Newport Beach
100 Civic Center Drive
Newport Beach, California 92660
TO DEVELOPER: Mr. Paul Habeeb
Harbor Pointe Senior Living, LLC
3333 West Coast Highway, Suite 200
Newport Beach, CA 92663
With a copy to: Sean Matsler, Esq.
Cox Castle & Nicholson LLP
3121 Michelson Drive, Suite 200
Irvine, California 92612
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.
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
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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) calendar 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 (2) or more counterparts, each of which shall be
identical and may be introduced in evidence or used for any other purpose without any other
counterpart, but all of which shall together constitute one (1) and the same agreement.
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
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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
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
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EM
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.
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[
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SIGNATURE PAGE TO
DEVELOPMENT AGREEMENT
ATTEST:
Leilani I. Brown, City Clerk
APPROVED AS TO FORM:
Aaron C. Harp, City Attorney
Sean Matsler, Attorney for Developer
"DEVELOPER"
HARBOR POINTE SENIOR LIVING, LLC
Paul Habeeb, Managing Member
"CITY"
26
CITY OF NEWPORT BEACH
Diane B. Dixon, Mayor
DRAFT
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 buffifulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF
On I , 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
personally appeared
, before me,
(here insert name and title of the officer)
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)
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EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
Lot l of Tract No. 12528, in the City of Newport Beach, County of Orange, State of California,
as per Map recorded in Book 551, Pages 38 through 41, inclusive of Miscellaneous Maps, in the
Office of the County Recorder of said County.
-.:
EXHIBIT B
SITE MAP
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EXHIBIT C
VESTED DEVELOPMENT IMPACT FEES
FAIR SHARE FEE
Fair Share Fee of $586 per "patient" and/or bed
120 beds * $586 per bed = $70,320
Less the Fair Share Fee of $14,511 per thousand square feet of restaurant use
8.8 thousand square feet of restaurant use * $14,511 = $127,696.80
*There is no Fair Share Fee required, as the credit exceeds the current fee.
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