HomeMy WebLinkAbout11 - San Diego Creek North, Fletcher Jones Motor Car Project, Declaration of Special land Use Restriction/Dedication AgreementBY TME NG CH
TY OF NEClr Council Meeting Date: Dec. 11, 1995
Agenda: # 11
CITY OF NEWPORT BEACH
OFFICE OF THE CITY ATTORNEY
December 6, 1995
TO: Mayor and Members of the City Council
FROM: Bob Burnham, City Attorney
RE: San Diego Creek North,
Fletcher Jones Motor Car Project,
Declaration of Special Land Use Restriction/
Dedication Agreement
The Irvine Company (TIC), Fletcher Jones Motor Cars, Inc.
(Fletcher Jones) and City staff have concluded negotiations
regarding the form and content of the Agreement pursuant to which
TIC will dedicate the San Diego Creek Parcel (Property) to the City
(Dedication Agreement) and the Declaration of Special Land Use
Restrictions pursuant to which TIC will maintain some control over
the use and improvements on the Property. The proposed Dedication
Agreement and Declaration are attached to this memo. The key
provisions of these two documents can be summarized as follows:
A. Dedication Agreement
1. TIC is obligated to dedicate the Property to the City for
use as an automobile dealership prior to the date on
which dedication is required by CIOSA;
2. As a condition to the Dedication, City is required to
form the CIOSA Financing District, approve amendments to
the Block 500 PC Text, rebate a portion of the Fair Share
Fees to be paid by Fletcher Jones, and commit to design
and construct certain improvements;
3. TIC's obligation to dedicate the Property is contingent
upon City providing assurance to TIC that it has
acquired, or will acquire, parcels contiguous to the
Property; and,
4. TIC commits to cooperate with City to obtain ownership or
constructive use of the contiguous parcels, as well as
provide a right of entry to the Property to allow soils
testings.
B. Declaration
1. Limits the improvements on the Property to "Specific
Facilities" identified in the Site Plan submitted by
Fletcher Jones;
2. Gives TIC right to approve the design of the Specific
Facilities;
3. Gives TIC the "right of first refusal" to purchase the
Property in the event of certain transfers of the
Property and franchise or conversion to a use other than
auto dealership;
4. Limits the use of the Property to an automobile
dealership unless certain criteria for conversion are
satisfied;
5. Requires the Owner to maintain the property and restore
improvements damaged by fire or other casualty;
6. Prohibits certain operations and uses on the Property;
7. Gives TIC the right to future. compensation under certain
circumstances if the Property converts to a use other
than automobile dealership.
The Dedication Agreement requires the City to determine that
TIC has satisfied all of its "CIOSA" obligations with respect to
the San Diego Creek North parcel. The City Council, should, in
addition to authorizing the Mayor and City Clerk to execute these
Agreements, find that TIC has fully complied with its obligations
upon execution of the Dedication Agreement by authorized
representatives of TIC.
RECOMMENDATION:
We recommend that the City Council authorize the Mayor and
City Clerk to execute the Dedication Agreement and the Declaration,
and find that TIC has, upon execution of the Dedication Agreement
and Declaration by authorized representatives, fully satisfied all
of its obligations pursuant to the Circulation Improvement and Open
Space Agreement with respect to the San Diego Creek North parcel.
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wb\ccfletch.mem
Agenda # 11
DEDICATION AGREEMENT
THIS AGREEMENT made and entered into on the day of
1995, by and between The Irvine Company, a Michigan
corporation, dba Irvine Land Management ("TIC") and the City of
Newport Beach, a charter City and municipal corporation ("City") is
made with reference to the following:
A. TIC is the owner of a large parcel of vacant land
commonly known as the San Diego Creek North ("the Property") which
is depicted on the map attached as Exhibit A and legally described
in Exhibit B. TIC has previously transferred portions of the
adjacent property to the Transportation Corridor Agency for street
and highway purposes.
B. TIC is required, pursuant to the provisions of the
Circulation Improvement and Open Space Agreement ("CIOSA") to
dedicate the Property to the City, for public facility and open
space purposes, upon completion of development on all vacant
parcels described in CIOSA.
C. City desires to expedite acquisition of the Property and
immediately convey the Property to Fletcher Jones Motor Cars, Inc.
("Developer") to facilitate the development and operation of an
automobile dealership as opposed to the uses currently permitted
pursuant to CIOSA. In the absence of this Agreement, City would
potentially lose significant sales tax revenue as a result of
developers relocation of its dealership to another jurisdiction.
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D. To assist the City in its efforts to preserve sales tax
revenues generated by Developer, TIC is willing to support
amendments to CIOSA which would expedite dedication of the Property
and authorize uses other than those permitted in CIOSA, provided
the Property is not used in a manner which will interfere with
TIC's existing contractual obligations or impede, or cause any
adverse physical or economic impact on, the development of TIC's
properties.
NOW THEREFORE the parties agree as follows:
1. Dedication.
Subject to the terms and conditions contained in this
Agreement, TIC agrees to convey the Property to City and City
agrees to accept the Property from TIC.
2. Closing.
2.1 Closing of Transfer. The completion of the
conveyance shall occur upon satisfaction of all the conditions to
closing by delivery of the documents and instruments by the parties
to each other as provided in Section 3. The closing shall occur if
at all, on or before the earlier of (i) ten (10) business days
after the conditions described in Section 3 have been satisfied or
(ii) December 31, 1995, (the Closing Date).
2.2 Time is of the Essence. Time is of the essence as
to every provision of this Agreement of which time is an element.
If this transaction is not in a condition to close by the Closing
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Date, then the parties shall continue to comply with this Agreement
until a written demand or cancellation has been made by a party
entitled to do so.
3. Conditions to Closing.
The respective obligations of TIC and City to complete
the transactions contemplated by this Agreement are subject to
satisfaction of the following conditions at or prior to closing.
3.1 Conditions to TIC's Obligation to Complete the
Conveyance. TIC's obligation to convey the Property to City is
subject to satisfaction of the following conditions:
a. Due Authorization. The execution and delivery
of this Agreement by City and the performance of City's obligations
under this Agreement has been duly authorized by the City Council
of the City of Newport Beach and no further act or authorization is
necessary on City's part for execution, delivery or performance of
this Agreement.
b. City's Non -default. City shall not be in
default of any of its material obligations pursuant to this
Agreement and no event has occurred which would constitute a
material breach of City's representations or warranties contained
in this Agreement.
C. CIOSA Financing District. City shall provide
TIC with a copy of a Resolution of the City Council of the City of
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Newport Beach establishing a CIOSA Financing District pursuant to
the provisions of Chapter 3.32 of the Newport Beach Municipal Code,
and an opinion by counsel for the City that the District was formed
in accordance with all relevant provisions of state and local law.
d. Fair Share Fees. City has eertf=-e d'n
wiciting, to shall pay TIC a sum equal to fifty percent (500) of
the fair share fees paid by Developer upon the issuance of the
first grading or building permit for the Property pursuant to the
reimbursement provisions of CIOSA.
e. Block 500. City has initia eel, and shall have
algigi-evedepr±ate, approved amendments to the Planned
Community Text for Block 500 in Newport Center for the purpose of
establishing that the current parking supply for all uses within
that Block satisfies the requirements of the Zoning Code of the
City of Newport Beach. City shall has delivered to TIC a copy of
the resolution of the City Council of the City of Newport Beach
confirming initi ti& approval of the1.amendments. y
shall, ; f the es
, �—a�T�e�—��e--a�p�e�o=e•��reze �}L�� c�e��g dates
deliver te-TIG a e^tifled eepy—ef the rese3idtren—eenziicfRing the
ffiedi€ieatiens te the PC TeHt fer Bleek -590—teget-her with the text-
ef t}e—affiendffi^tser de eisienwvied—een=irFas th the —exi s tinff
eche—Gity of Newport Beaeh..—
f. Cost Agreements. City and TIC hereby agree and
shall have entered into written agreements with TIC to accomplish
the following:
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(i) BnSldri t -That TIC ^owe shall receive
a Four Hundred Thousand Dollar $400,000 credit against the CIOSA
advance which represents the cost of constructing Bayview Way as
well as a commitment that the cost of Bayview Way extended will not
be funded out of the proceeds of bonds issued pursuant to the CIOSA
financing district;
(ii) Ensui-ing That the cost of designing and
constructing the E1 Paseo Drive storm drain systems shall be funded
solely through bonds issued pursuant to the CIOSA Financing
District. The El Paseo Drive Storm Drain begins at the northerly
side of Coast Highway in Newport Center, proceeds through Irvine
Terrace Park along El Paseo Drive and discharges into Newport Bay
adjacent to the Bahia Corinthian Yacht Club parking lot. T -h -e
written agr-eeftents shall l al s eemfflit tie City 4-=:e shall commence
construction of the El Paseo Drive storm drain within 180 days
after issuance of the first building permit for any TIC owned
parcel on which development could result in an incremental increase
in flows into the El Paseo Drive storm drain system. City eefftfflits
45�-e shall not deny building permits, grading permits, or other land
use approvals on any TIC property the development of which is
conditioned, or potentially impacted, in whole or in part, on or by
the construction, or failure to construct, some or all of the
improvements integral to the El Paseo Drive storm drain system.
(iii) ming t -That City and Developer
are solely responsible for satisfying all of the conditions to
entitlement to development of the Property including conditions
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imposed by the California Coastal Commission and other regulatory
agencies.
g. Use of Property. City shall have approved
amendments to any appropriate ordinance, resolution, plan, or
policy to accomplish the following:
(i) Modify the provisions of the Planned
Community Text for the Property to authorize the use of the
Property as an automobile dealership or as otherwise permitted by
this Agreement;
(ii) Ennui -inn that Tie's nbl i g t i nnsa pursuant
ite GIGGA inelevant te— he -ceperty —are filly satisfied die
iffiplementatien of this Agro ffien Acknowledging that TIC has fully
satisfied any and all of its obligations pursuant to CIOSA. or anv
other agreement with respect to the Property;
(iii) To exclude the Property from the CIOSA
Financing District or related agreements to the extent necessary to
implement this Agreement;
h. Directional Sign. TIC shall have been granted all
necessary rights to construct and maintain a directional sign as
provided in Section 8.6 below.
i. Restriction on Contiguous Parcels. City shall have
previously acquired the Contiguous Parcels or shall otherwise have
assured TIC that such Contiguous Parcels will be rester eted—b-y
acquired subject to the Special Restrictions. City also
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acknowledges that it shall take title to the Property subject to
the dee ^ at of -a "Special
-r-Restrictions," (as defined in Section 4.1(b) below).
j. Approval of Conditions. TIC shall have approved all
conditions of approval imposed on the Property by the California
Coastal Commission and other governmental authorities relating to
development or use of the property.
3.2 Conditions to City Obligations.
City's obligations to accept the conveyance of the
Property are subject to satisfaction of the following conditions:
a. Due Authorization. The execution and delivery
of this Agreement by TIC and the performance of TIC's obligations
under this Agreement have been approved by duly authorized
representatives of TIC and no further act or authorization is
necessary on TIC's part for the execution, delivery or performance
of this Agreement.
b. TIC's Non -default. TIC shall not be in default
of any of its material obligations pursuant to this Agreement and
no event has occurred which would constitute a material breach of
TIC's representations or warranties contained in this Agreement.
C. Delivery of Grant Deed. TIC shall have
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delivered to City, and executed, a recordable grant deed to the
Property in the form attached to this Agreement as Exhibit C (the
"Grant Deed").
d. Inspection and Soil Test. City shall approve
the physical condition of the Property as provided in this
paragraph. Provided the City is not in breach of this Agreement,
City shall be entitled to execute and deliver to TIC an entry
permit in the ferffi attaehed te—this hgreeffient as Bmhibit B (the
"Entry Permit") and thereafter, during the inspection period
described in this paragraph, so long as the requirements of such
Entry Permit are complied with, City or Developer, or their
respective agents or subcontractors, shall be permitted to enter
the Property at any reasonable time for the purpose of conducting
customary soils, engineering, or hazardous materials tests and to
inspect and survey the Property. City shall be deemed to have
approved all soil and all other physical conditions pertaining to
the Property unless it has delivered to TIC written notice of
disapproval within 90 days after the date of this Agreement or 30
days prior to the Closing Date. Timely delivery of such notice of
disapproval shall constitute failure of a condition to City's
obligations under this Agreement and City shall be entitled to
terminate this Agreement pursuant to paragraph 7.1 unless TIC and
City agree in writing to mitigate or cure the conditions upon which
the disapproval was based, provided, however, neither party shall
be under any obligation or duty to undertake any mitigation or cure
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unless it has agreed to do so in writing.
e. Title Approval. The City shall, as soon as
reasonably practical, order a preliminary title report for the
Property to be issued by First American Title Company or such other
title company as is acceptable to both parties (the title company) .
City shall promptly provide TIC with a copy of the preliminary
title report. City shall have inspected and approved the condition
of title to the new site. City shall be deemed to have approved
the condition of title to the new site unless it has delivered to
TIC written notice of disapproval within sixty (60) days after the
date of the preliminary title report. If City has timely notified
TIC of disapproval of any matter (other than liens for liquidated
monetary amounts) then TIC may notify City within fifteen (15) days
after delivery of City's notice of disapproval that TIC will cure
such matter in which event this condition shall be deemed satisfied
as to that matter. If TIC does not timely notify City that it will
cure all matters disapproved by City then this condition to City's
obligations shall fail and City shall be entitled to terminate this
Agreement pursuant to Paragraph 7.1. Title to the Property to be
conveyed to City upon closing shall be subject to the Special
Restrictions, all matters described in the Grant Deed and all
matters affecting title except (i) liens for liquidated monetary
amounts which TIC shall be obligated to cure at closing; and (ii)
those matters, if any, which TIC shall agree in writing to remove
in response to any notice of disapproval which City has timely
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delivered to TIC. If TIC agrees to remove any matters effecting
title to the Property it shall have until the Closing Date to do
SO.
f. Acquisition of Contiguous Land. City's intention to
acquire the Property for transfer to Developer, for construction an
automobile dealership, is contingent on the acquisition of
contiguous land. City shall use its best efforts to negotiate
acquisition of two (2) parcels adjacent to the Property (Contiguous
Parcels - described in Exhibit A). Acquisition of the Contiguous
Parcels shall be a condition to City's obligation to accept
conveyance of the Property and failure of City to acquire
Contiguous Parcels shall entitle City to terminate this Agreement
pursuant to paragraph 7.1 provided, however, City's right to
terminate is contingent upon written notification to TIC within
five (5) days prior to the Closing Date that City has not acquired
the Contiguous Parcels or the requisite interest therein.
4. Delivery.
4.1 Items to be Delivered by TIC.
TIC shall deliver on or before 4:00 p.m. on the
business day prior to the closing the following:
a. Grant Deed to the Property. An original
and fully executed and acknowledged Grant Deed conveying title to
the Property to City in the form attached to this Agreement as
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Exhibit C. City shall execute and acknowledge its acceptance of
the Grant Deed and return the Grant Deed to TIC within three (3)
business days after delivery of the executed copy to the City by
TIC.
b. Special Restrictions. A fully executed
and original and acknowledged original of the "Declaration of
Special Land Use Restrictions, Right ef=—riL-st Refids,"�and :�1-azea
deeumencs in the fer-i att-aehed to this Agreeffient asBiEhrrbit -F
(Special Restrictions). City shall execute and acknowledge the
Special Restrictions and return the original documents to TIC
within three (3) business days after delivery of the executed copy
by TIC.
C. Funds. Funds sufficient to pay any costs
or prorations borne by TIC, if any, as provided in paragraphs 5.1
and 5.2 of this Agreement and funds sufficient to reimburse the
costs paid by City, if any, required to be reimbursed pursuant to
this Agreement.
d. Other Documents. Such other documents or
items as TIC is required to deliver at closing or as City shall
reasonably request to carry out the agreement of the parties.
4.2 Items to be Delivered by City.
City shall prepare, approve, execute and
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deliver to TIC on or before 4:00 p.m. on the business day prior to
closing the following:
a. All documents described in subparagraphs
3 . 1 (c) (d) (e) (f) (g) and (h) to this Agreement.
b. Such other documents or items the City is
required to deliver at closing or as TIC may reasonably request to
carry out the agreement of the parties.
5. Costs and Prorations.
5.1 Costs, Closing and Title Fees. City shall pay
the documentary transfer taxes and the recording costs to record
the Grant Deed conveying the Property. TIC shall pay the cost of
recording the Special Restrictions. City shall pay all costs and
expenses of any title insurance policy covering the Property, any
endorsements to the policy of title insurance, and any surveys
required to obtain the requested title insurance. In no event
shall City's election to obtain title insurance coverage be a
condition to, or cause of delaying the closing. TIC and City shall
bear their own respective legal and accounting costs, if any.
5.2 Taxes and Assessments.
All current property taxes and general and special
bonds and assessments, if any, shall be prorated between TIC and
the City as of closing based upon the latest available tax
information attributable to the Property. TIC shall be entitled to
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the proceeds of any refund for taxes and assessments paid prior to
the closing.
4 6. Cancellation/ Termination.
-76.1 City's Right to Terminate.
In the event there is a failure of any of the
conditions to City's obligations as set forth in paragraph 3.2,
City may terminate this Agreement by giving written notice to TIC
at any time prior to closing. Failure of City to terminate this
Agreement prior to the closing shall be deemed a waiver by City of
any condition which failed and if a condition required approval by
City such failure shall be deemed an approval of the previously
disapproved item. If City terminates this Agreement, City shall
pay all title cancellation charges unless the failure of the
condition was related to a breach by TIC in which event TIC shall
pay the cancellation charges.
46.2 TIC's Right to Terminate.
In the event there is a failure of any of the
conditions to TIC's obligations as set forth in paragraph 3.1, TIC
may terminate this Agreement by giving written notice to City at
any time prior to the closing. Failure of TIC to terminate this
Agreement prior to the closing shall be deemed a waiver by TIC of
the condition which has failed, and if a condition required
approval by TIC, such failure shall be deemed an approval of the
previously disapproved items, provided, however, this does not
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apply to the approval of plans, specifications or other matters
relating to the improvement or the use of the Property, all of
which shall continue to be subject to TIC' s review and approval
pursuant to this Agreement and the Special Restrictions. If TIC
terminates this Agreement as provided in this paragraph, then TIC
shall pay all title cancellation charges unless the failure of such
condition was related to a breach by the City in which event the
City shall pay the cancellation charges. Notwithstanding any such
waiver of a condition by TIC, if City accepts title to the
Property, TIC shall be deemed to have complied with its obligations
under CIOSA as to the Property.
8. Representations, Warranties and Obligations.
In addition to all other representations, warranties
and obligations made in this Agreement, each party represents and
warrants to the other and acknowledges and agrees and follows:
8.1 No Violation. The execution, delivery,
performance of and compliance with this Agreement has not resulted
in, and will not result in, violation of, or conflict with, or the
creation of any default under, any contract, agreement, law,
resolution or plan.
8.2 No Litigation. There is no litigation or legal
proceeding, arbitration or investigation pending or threatened
which would effect the ability of either party to perform its
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obligations pursuant to this Agreement.
8.3 Hazardous Materials. City acknowledges that
the Property may have been farmed or used for agricultural purposes
and fertilizers, pesticides, weed killers and other chemicals may
have been used or placed upon the Property. Except as provided
above, TIC warrants that as of the date of this Agreement, it has
no actual knowledge of any use or storage of hazardous materials,
hazardous substances or hazardous waste on the Property.
Notwithstanding the foregoing, City will acquire the Property, if
at all, "as is" in its present state and condition without any
warranty by TIC relative to hazardous materials or substances or
the physical suitability of the site for its intended use. The
"actual knowledge of TIC" shall mean the actual knowledge, without
any duty of inspection or investigation, of the corporate officers
or employees employed as the date of this Agreement having
responsibility for managing or selling the Property.
8.4 Cooperation Regarding Permits. TIC shall
cooperate with City and any proposed transferee in the preparation,
filing and processing of any document necessary to secure permits
or land use entitlement required to construct any improvement on or
adjacent to the Property or the use of the Property consistent with
the Special Restrictions provided, however, TIC shall not be
required to pay any money in conjunction with its duty to
cooperate. City shall indemnify and hold TIC harmless from all
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cost, expenses and liabilities arising out of any such permits or
entitlement and all applications relating thereto, processed by
City or Developer during the time that TIC owns the Property
(irrespective of whether TIC executed any such permit, entitlement
or application as owner of the Property). City shall obtain TIC's
prior written approval of all conditions of approval imposed by the
California Coastal Commission and other governmental entities prior
to the time City acquires title, such approval to be obtained prior
to the time City consents to, or finalizes any such conditions of
approval.
8.5 Cooperation Regarding Contiguous Parcels. TIC
shall cooperate with City, at no direct costs to TIC, and City's
efforts to obtain ownership and/or constructive use of the
Contiguous Parcels. In the event City is unable to directly obtain
constructive use of the Property currently owned by TCA and
adjacent to Jamboree, but the TCA does agree to reconvey the
Property to TIC, TIC shall, in turn, convey the Property to City
and City shall grant an easement to the TCA necessary to
accommodate the proposed Jamboree Road flyover. City shall execute
such documents as may be necessary so as to subject the Contiguous
Parcels to the Special Restrictions.
8.6 Directional Sign. City shall use its best
efforts to preserve the off-site directional sign currently located
at the corner of Jamboree and Bristol. In the event the ultimate
ES
development of the Property precludes preservation of the off-site
directional sign, City shall permit TIC to install a similar sign
on any property owned or controlled by City that is not right-of-
way dedicated for street and highway purposes subject only to a
determination that the presence of the sign at that location will
not constitute a hazard to persons or property.
9. General Provisions.
9.1 Assignment.
City shall not assign its rights or interests
under this Agreement to any person or entity other than Developer
without TIC's express written consent which may be withheld in
TIC's sole discretion.
9.2 Force Majeure.
Each of the dates provided in this Agreement
shall be deemed extended for, and throughout, such additional
period or periods of time as performance is prevented or delayed
due to strikes, lock -outs, material shortages, acts of God,
injunction, or other matters reasonably beyond that party's
control.
9.3 Further Documents.
The parties agree to cooperate in good faith
with one another and to execute and deliver documents, and
otherwise perform, as may be reasonably necessary or appropriate to
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complete the conveyance contemplated by this Agreement. If this
Agreement is terminated for any reason, each party shall deliver to
the other and without charge any and all documents which that party
may have obtained or prepared with respect to the Property.
City shall deliver to TIC, if requested and without charge, copies
of any and all soils reports, plans and engineering studies,
traffic studies and feasibility studies prepared by or on behalf of
City or Developer which are in City's possession and which are not
deemed confidential by Developer or the preparer. TIC shall not
disclose, to any third party, the contents of any report, plan, or
study prepared by or on behalf of Developer without Developer's
written consent.
9.4 Waiver, Consent and Remedies.
Either party may specifically and expressly
waive, in writing, any requirement or breach of this Agreement, but
that specific waiver shall not constitute further continuing waiver
of any preceding or succeeding breach or failure to perform the
same or other provision.
9.5 Attorneys Fees.
In the event any declaratory or other legal or
equitable action is instituted between TIC and the City in
connection with this Agreement then, as between City and TIC, the
prevailing party shall be entitled to recover all of its costs and
expenses including court costs and reasonable attorneys' fees.
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9.6 Notices.
Any notices, request, demand, consent or the
communication required or permitted pursuant to this Agreement or
by law shall be given in writing or delivered to an officer or duly
authorized representative of the other party or by Untied States
mail duly certified (return receipt requested), postage prepaid and
addressed as follows:
a. If to TIC: Tom Redwitz
The Irvine Company
550 Newport Center Drive
Newport Beach, CA 92663
Copy to: Newmeyer & Dillion
3501 Jamboree Road
North Tower, 6th Floor
Newport Beach, CA 92660
Attn: John E. Pope
b. If to City: Kevin J. Murphy
City Manager
City of Newport Beach
3300 Newport Blvd.
P.O. Box 1768
Newport Beach, CA 92658
Copy to: Robert H. Burnham
City Attorney
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9.7 No addition to or modification of any provision
contained in this Agreement shall be effective unless fully set
forth in writing and executed by City and TIC.
Dated:
Dated:
Dated:
APPROVED AS TO FORM:
THE IRVINE COMPANY,
a Michigan Corporation,
P
William F. McFarland,
Executive Vice President,
The Irvine Company
BY:
Chick C. Willette, President
Irvine Land Management, a
Division of The Irvine
Company
UZ M
CITY OF NEWPORT BEACH
Kevin J. Murphy, City Manager
City of Newport Beach
Robert H. Burnham
City Attorney, City of Newport Beach
wb\agr\dedicat1.agt 12-6-95
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