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HomeMy WebLinkAbout03 - Zone Change and Development Agreement for a Residential Project at 150 Newport Center Drive (PA2020-020)TO: FROM CITY OF NEWPORT BEACH City Council Staff Report October 12, 2021 Agenda Item No. 3 HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL Seimone Jurjis, Community Development Director - 949-644-3232, sjurjis@newportbeachca.gov PREPARED BY: Liz Westmoreland, Associate Planner, Iwestmoreland@newportbeachca.gov PHONE: 949-644-3234 TITLE: Ordinance Nos. 2021-19 and 2021-20: Zone Change and Development Agreement for a Residential Project at 150 Newport Center Drive (PA2020-020) ABSTRACT: For the City Council's consideration are two ordinances for adoption to change the existing zoning district from "Office Regional (OR)" to "Planned Community (PC -61)" and approve a Development Agreement between the City of Newport Beach (City) and Newport Center Anacapa Associates, LLC for the Residences at Newport Center, located at 150 Newport Center Drive. The attached ordinances were introduced and considered at the September 28, 2021, City Council Meeting. RECOMMENDATION: a) Find that the Residences at Newport Center project Environmental Impact Report (EIR) No. ER2021-002 (SCH No. 2020110087) certified by the City Council on September 28, 2021, by Resolution No. 2021-90 was prepared for the project in compliance with the California Environmental Quality Act (CEQA), the State CEQA Guidelines, and City Council Policy K-3; b) Conduct second reading and adopt Ordinance No. 2021-19, An Ordinance of The City Council of the City of Newport Beach, California, Approving Development Agreement No. DA2020-001 for the Residences at Newport Center Located at 150 Newport Center Drive (PA2020-020); and c) Conduct second reading and adopt Ordinance No. 2021-20, An Ordinance of the City Council of the City of Newport Beach, California, Approving Zoning Code Amendment No. CA2020-008 and Planned Community Development Plan No. PC2020-001 Establishing the Residences at Newport Center Located at 150 Newport Center Drive (PA2020-020). 3-1 Ordinance Nos. 2021-19 and 2021-20: Zone Change and Development Agreement for a Residential Project at 150 Newport Center Drive (PA2020-020) October 12, 2021 Page 2 DISCUSSION: On September 28, 2021, the City Council heard a presentation to change the general plan to allow 28 residential units at the property located at 150 Newport Center Drive. At the meeting, the City Council introduced and passed to a second reading and adoption Ordinance No. 2021-20, which changes the existing Zoning District from "Office Regional (OR)" to "Planned Community (PC -61)". The City Council also introduced and passed to second reading and adoption Ordinance No. 2021-19, which approves a Development Agreement between the City and Newport Center Anacapa Associates, LLC. FISCAL IMPACT: A voluntary Development Agreement has been requested by Newport Center Anacapa Associates, LLC. As part of the Development Agreement, the applicant has agreed to pay a public benefit fee to the City in the sum of $2,500,000, or $89,285.71 per residential dwelling unit. The developer is required to pay the public benefit fee to the City at the time of the City's issuance of the first building permit for the project. The Development Agreement allocates the total fee into the following categories: • $1,875,000 for any public purpose that the City determines to be in the public interest • $325,000 for affordable housing • $150,000 to fund services for those experiencing homelessness • $150,000 to fund public safety ENVIRONMENTAL REVIEW: EIR No. ER2021-002 (SCH No. 2020110087) was prepared in accordance with the implementing guidelines of CEQA, the State CEQA Guidelines, and the City Council Policy K-3, which included an analysis of the proposed zoning changes and Agreement. The City Council certified the EIR on September 28, 2021, by Resolution No. 2021-90. 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 —Ordinance No. 2021-19 (DA) Attachment B —Ordinance No. 2021-20 (PC) 3-2 Attachment A Ordinance No. 2021-19 (DA) 3-3 ORDINANCE NO. 2021-19 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA, APPROVING DEVELOPMENT AGREEMENT NO. DA2020-001 FOR THE RESIDENCES AT NEWPORT CENTER LOCATED AT 150 NEWPORT CENTER DRIVE (PA2020-020) WHEREAS, Section 200 of the City of Newport Beach ("City") Charter vests the City Council with the authority to make and enforce all laws, rules and regulations with respect to municipal affairs subject only to the restrictions and limitations contained in the Charter and the State Constitution, and the power to exercise, or act pursuant to any and all rights, powers, and privileges, or procedures granted or prescribed by any law of the State of California; WHEREAS, an application was filed by Newport Center Anacapa Associates, LLC ("Applicant"), with respect to property located at 150 Newport Center Drive and legally described in Exhibit "A," which is attached hereto and incorporated herein by reference ("Property"); WHEREAS, the project includes the demolition of an existing 2,085 -square -foot car wash, convenience market, and gas station and the construction of a four-story structure consisting of 28 condominium units and common space amenity areas over a two-level below -grade parking garage ("Project") which require the following approvals from the City: • General Plan Amendment No. GP2020-001 — to change the Property's land use designation from Regional Commercial Office (CO -R) to Multiple Residential (RM) and create a new Anomaly Location for the Property that authorizes a maximum development density of 28 dwelling units; • Zoning Code Amendment No. CA2020-008 — to change the Property's zoning designation from Office Regional (OR) to Planned Community (PC) District; • Planned Community Development Plan No. PC2020-001 - to establish land uses and development standards for the Property including a waiver of the minimum site area; • Major Site Development Review No. SD2020-001 — to allow for the development of a four-story structure containing 28 luxury condominium units and common space areas over a two-level below -grade parking garage; 3-4 Ordinance No. 2021-19 Page 2 of 5 • Tentative Tract Map No. NT2020-001 — to establish a 28 -unit residential condominium subdivision map on the 1.26 -acre Property that would allow each unit to be sold individually; • Development Agreement No. DA2020-001 — to provide the Applicant with the vested right to develop the Project subject to the rules and regulations in effect at the time of Project approval and to provide the City with assurance that certain obligations of the Applicant will be met, including public benefit fees; • Environmental Impact Report No. ER2021-002 - to disclose reasonably foreseeable environmental impacts resulting from the legislative and project specific discretionary approvals, the City has determined that an Initial Study and Environmental Impact Report ("EIR") are warranted for the Project pursuant to California Public Resources Code Section 23000 et seq. ("CEQA"), Title 14, Division 6, Chapter 3 of the California Code of Regulations ("CEQA Guidelines"), and City Council Policy K-3; and • Rescind Use Permit No. UP1461 — rescind use permit since the Project will replace the operation of the existing car wash; WHEREAS, the Property is designated Regional Commercial Office (CO -R) by the City of Newport Beach General Plan ("General Plan") Land Use Element and is located within the Office Regional (OR) Zoning District; WHEREAS, the Property is not located within the coastal zone; WHEREAS, a study session was held on May 6, 2021, in the Council Chambers located at 100 Civic Center Drive, Newport Beach to introduce the project to the Planning Commission and discuss the procedures for environmental review; WHEREAS, the Planning Commission held a public hearing on August 19, 2021 in the Council Chambers at 100 Civic Center Drive, Newport Beach. A notice of time, place and purpose of the hearing was given in accordance with California Government Code Section 54950 et seq. ("Ralph M. Brown Act") and Chapters 15.45 (Development Agreements), 19.12 (Tentative Map Review), 20.56 (Planned Community District Procedures) and 20.62 (Public Hearings) 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; 3-5 Ordinance No. 2021-19 Page 3 of 5 WHEREAS, at the hearing, the Planning Commission adopted Resolution No. PC2021-024 by a unanimous vote (7 ayes, 0 nays) recommending the City Council approve the Project; and WHEREAS, the City Council held a public hearing on September 28, 2021, in the Council Chambers located at 100 Civic Center Drive, Newport Beach. A notice of time, place and purpose of the hearing was given in accordance with the Ralph M. Brown Act and Chapters 15.45 (Development Agreements), 19.12 (Tentative Map Review), 20.56 (Planned Community District Procedures) and 20.62 (Public Hearings) 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. NOW THEREFORE, the City Council of the City of Newport Beach ordains as follows: Section 1: The City Council has considered the recommendation of the Planning Commission and 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. DA2020-001, as set forth in Exhibit "B," which is attached hereto and incorporated herein by reference. Development Agreement No. DA2020-001 satisfies the requirements of Chapter 15.45 (Development Agreements) of the NBMC as provided hereafter: 1. A voluntary development agreement has been requested by the Applicant as the Project would add new residential dwelling units within Statistical Area L1 (Newport Center). The development agreement includes all the mandatory elements, including a term of 10 years, and public benefits that are appropriate to support conveying the vested development rights consistent with the General Plan, NBMC, and California Government Code Sections 65864 et seq. 2. Public benefits include the payment of $1,875,000 for any public purpose that the City determines to be in the public interest; $325,000 for affordable housing; $150,000 to fund services for those experiencing homelessness; and $150,000 to fund public safety. 3-6 Ordinance No. 2021-19 Page 4 of 5 3. With the adoption of Resolution No. 2021-91 approving General Plan Amendment No. GP2020-001 changing the General Plan land use designation of 150 Newport Center Drive from CO -R (Regional Commercial Office) to RM (Multiple Residential), revising the existing Anomaly 35 and establishing a new anomaly (Table LU2 Anomaly Locations) designation for a maximum development intensity of 28 dwelling units, the Project is consistent with the General Plan. 4. Additionally, with the adoption of Ordinance No. 2021-20 changing the Zoning District designation from OR (Office Regional) to PC - 61 (Residences at Newport Center) over the entire site, the Project is consistent with the Zoning Code. Section 3: The recitals provided in this ordinance are true and correct and are incorporated into the substantive portion 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 Residences at Newport Center Final Environmental Impact Report (SCH No. 2020110087) was prepared for the project in compliance with CEQA, the State CEQA Guidelines, and City Council Policy K-3. By Resolution No. 2021-90, the City Council, having final approval authority over the project, adopted and certified as complete and adequate the Residences at Newport Center Final Environmental Impact Report (SCH No. 2020110087) and adopted "Mitigation Monitoring and Reporting Program." Resolution No. 2021-90, including all findings contained therein, is hereby incorporated by reference. Section 6: The Mayor shall sign and the City Clerk shall attest to the passage of this ordinance. The City Clerk shall cause the ordinance, or a summary thereof, to be published pursuant to City Charter Section 414. 3-7 Ordinance No. 2021-19 Page 5 of 5 This ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach held on the 28th day of September, 2021, and adopted on the 12th day of October, 2021, by the following vote, to -wit: AYES: NAYS: ABSENT: BRAD AVERY, MAYOR ATTEST: LEILANI I. BROWN, CITY CLERK APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE -1 lie"'_ f., AARON C. HARP, ITY ATTORNEY Attachment(s): Exhibit A - Legal Description Exhibit B - Development Agreement 3-8 Exhibit "A" Legal Description The property is legally described as Parcel 1 of Parcel Map No. 29-34 (Resubdivision No. 282) being a portion of Block 93 of Irvine's subdivision as per map recorded in Book 1, Page 88 of Miscellaneous Record Maps, records of Orange County, California. W Exhibit `B" Development Agreement 3-10 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 NO. DA2020-001 between CITY OF NEWPORT BEACH and NEWPORT CENTER ANACAPA ASSOCIATES, LLC, a California limited liability company CONCERNING 150 NEWPORT CENTER 3-11 DEVELOPMENT AGREEMENT (Pursuant to California Government Code sections 65864-65869.5) This DEVELOPMENT AGREEMENT (the "Agreement") is dated for reference purposes as of the day of , 2021, 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 NEWPORT CENTER ANACAPA ASSOCIATES, 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. As of the "Agreement Date" (defined below) Developer holds fee title to that certain real property located in the City of Newport Beach, County of Orange, State of California commonly referred to as 150 Newport Center, located at 150 Newport Center Drive, Newport Beach, California 92660-6906 (APN # 442-231-12), bounded by Newport Center Drive on the north, Anacapa Drive on the east, the existing Gateway Plaza office complex on the south, and a parking lot that services the existing Corporate Plaza office park on the west (the "Pro e "). Accordingly, Developer has an equitable interest in the Property, and City and Developer are authorized to enter into this Agreement pursuant to Government Code Section 65865(a) 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. In order to encourage investment in, and commitment to, comprehensive planning and public facilities financing, strengthen the public planning process and encourage private implementation of the local general plan, provide certainty in the approval of projects in order to avoid waste of time and resources, and reduce the economic costs of development by providing assurance to property owners that they may proceed with projects consistent with existing land use policies, rules, and regulations, the California Legislature adopted California Government Code sections 65864-65869.5 (the "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" (the "Development Agreement Ordinance"). This Agreement is consistent with the Development Agreement Ordinance. D. As detailed in Section 3 of this Agreement and the Development Plans (as defined herein), and in consideration of the significant benefits outlined in this Agreement, Developer has agreed to pay a public benefit fee to City in the sum of Two Million Five Hundred Thousand Dollars and 00/100 ($2,500,000.00), including an annual adjustment to the public benefit fee based on the Consumer Price Index ("CPI"). City has determined that Developer's payment of this public benefit fee provides a significant public benefit to City and constitutes adequate consideration for City's entering into and performing its obligations set forth in this Agreement. 112'066751.0108 9650722.2 a07/14!21 -1- 3-12 Developer shall pay the Public Benefit Fee to the City at the time of the City's issuance of the first building permit for the Project (as defined herein). E. The following land use entitlements for the "Project" as detailed herein are being adopted and approved by the City Council concurrently with its approval of this Agreement: General Plan Amendment No. GP2020-001 proposes to change the existing land use designation for the Property from "Regional Commercial Office (CO -R)" to "Multiple Residential (RM)" And create a new Anomaly Location that authorizes a maximum density of 28 units. Zoning Code Amendment No. CA2020-008 proposes to change the zoning designations for the Property from Office Regional Commercial (OR) to Planned Community (PC) District over the Property. Planned Community Development Plan No. PC2020-001 proposes a new Planned Community to establish land uses and development standards for the Project site. In order to establish a planned community development plan, a waiver of the minimum site area of 10 acres of developed land is necessary. Major Site Development Review No. SD2020-001 proposes to allow for the development of a four-story structure containing 28 condominium units and common space areas over a two-level below -grade parking garage. Tentative Tract Map No. NT2020-001 proposes to establish a 28 -unit residential condominium subdivision map on the 1.26 -acre Project site that would allow each unit to be sold individually. Development Agreement No. DA2020-001 proposes to provide the Applicant with the assurance that the development of the Project may proceed subject to the rules and regulations in effect at the time of Project approval and to provide the City with assurance that certain obligations of the Applicant will be met. Final Environmental Impact Report No. ER2021-002 (SCH No. 2020110087) proposes to address reasonably foreseeable environmental impacts resulting from the legislative and project specific discretionary approvals and, also, including the Mitigation Monitoring and Reporting Program prepared and approved in conjunction therewith. Use Permit No. UP1461 Revocation. F. This Agreement is consistent with the City of Newport Beach General Plan, as amended by the City Council prior to or concurrently with its approval of this Agreement in order to establish appropriate zoning 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; (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, -2- 3-13 City's police power; (iv) is consistent with the provisions of the California Environmental Quality Act ("CEQA") including all criteria, standards and procedures of CEQA and the CEQA Guidelines requiring the preparation of an Initial Study and the Environmental Impact Report (SCH No. 2020110087)"E( IR"), 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) has been approved consistent with provisions of California Government Code section 65867 and City of Newport Beach Municipal Code Chapter 15.45. H. On August 19, 2021, City's Planning Commission held a public hearing on this Agreement, made findings and determinations with respect to this Agreement, and recommended to the City Council that the City Council approve this Agreement. I. On September 28, 2021, 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 October 12 2021, consistent with applicable provisions of the Development Agreement Statute and Development Agreement Ordinance, the City Council adopted its Ordinance No. 2021-19 (the "Adopting Ordinance"), finding this Agreement to be consistent with the City of Newport Beach General Plan in approving this Agreement. AGREEMENT 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. 2021-19 approving and adopting this Agreement. "Agreement" shall mean this Development Agreement No. DA2020-001, as the same may be amended from time to time. "Agreement Date" shall mean the date first written above which date is the date the City Council adopted the Adopting Ordinance. "CE A" shall mean the California Environmental Quality Act (California Public Resources Code sections 21000-21177) and the implementing regulations promulgated thereunder by the Secretary for Resources (California Code of Regulations, Title 14, Division 6, Chapter 3, Section 15000 et 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. -3- 3-14 "City Council" shall mean the governing body of City. "City's Affiliated Parties" shall have the meaning ascribed in Section 10.1 of this Agreement. "Claim" shall have the meaning ascribed in Section 10.1 of this Agreement. "CPI Index" shall mean the Consumer Price Index published from time to time by the United States Department of Labor for all urban consumers (all items) for the smallest geographic area that includes the City or, if such index is discontinued, such other similar index as may be publicly available that is selected by City in its reasonable discretion. "Cure Period" shall have the meaning ascribed in Section 8.1 of this Agreement. "Default" shall have the meaning ascribed to that term in Section 8.1 of this Agreement. "Develop" or "Development" shall mean to improve or the improvement of the Property for the purpose of completing the structures, improvements, and facilities comprising the Project, including but not limited to: grading; the construction of infrastructure and public facilities related to the Project, whether located within or outside the Property; the construction of all of the private improvements and facilities comprising the Project; the preservation or restoration, as required of natural and man-made or altered open space areas; and the installation of landscaping. The terms "Develop" and "Development," as used herein, do not include the maintenance, repair, reconstruction, replacement, or redevelopment of any structure, improvement, or facility after the initial construction and completion thereof. "Developer" shall mean Newport Center Anacapa Associates, LLC, a California limited liability company, and any successor or assignee to all or any portion of the right, title, and/or interest of Newport Center Anacapa Associates, LLC, 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. GP2020-001; (3) Zoning Code Amendment No. CA2020-008; (4) Planned Community Development Plan No. PC2020- in 3-15 001; (5) Major Site Development Review No. SD2020-001; (6) Tentative Tract Map No. NT2020-001; (7) Final Environmental Impact Report No. ER2021-002 for the Project, including the Mitigation Monitoring and Reporting Program approved in conjunction therewith; (8) Use Permit No. UP1461 Revocation; and (9) 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, all other land use and subdivision regulations governing the permitted uses, density and intensity of use, design, improvement, and construction standards and specifications, procedures for obtaining required City permits and approvals for development, and similar matters that may apply to 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, as applicable: (i) the date that is thirty (30) calendars 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; or (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. 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. Notwithstanding any other provision set forth in this Agreement to the contrary, however, in the event that for any reason the Effective Date does not occur on or before the third (3`d) anniversary of the date on which the City Council adopts the Adopting Ordinance then City shall have the right, exercisable in its sole and absolute discretion, -5- 3-16 to rescind the Adopting Ordinance and terminate this Agreement, and in such event neither Party shall have any additional rights or obligations hereunder after the effective date of such action(s). "EIR" shall mean Final Environmental Impact Report No. ER2021-002 (SCH No. 2020110087) (including the Mitigation Monitoring and Reporting Program) prepared for the Project and certified as fully compliant with the CEQA and the CEQA Guidelines by the City Council. "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 s�Mc., as amended ("RCRA"); the Emergency Planning and Community Right to Know Act of 1986, 42 U.S.C. Sections 11001 et sea., as amended; the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq., as amended; the Clean Air Act, 42 U.S.C. Sections 7401 et seg., as amended; the Clean Water Act, 33 U.S.C. Section 1251, et sec,., as amended; the Toxic Substances Control Act, 15 U.S.C. Sections 2601 et sea., as amended; the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. Sections 136 et seg., as amended; the Federal Safe Drinking Water Act, 42 U.S.C. Sections 300f et seg., as amended; the Federal Radon and Indoor Air Quality Research Act, 42 U.S.C. Sections 7401 et sea., as amended; the Occupational Safety and Health Act, 29 U.S.C. Sections 651 et seg., as amended; and California Health and Safety Code Section 25100, et M. "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. "Mortane" 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. 191 3-17 "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, as provided in this Agreement and the Development Regulations, as the same may be modified or amended from time to time consistent with this Agreement and applicable law. "Property" is described in Exhibit A and depicted on Exhibit B. "Public Benefit Fee" shall have the meaning ascribed in Section 3.1 of this Agreement. "Subsequent Development Approvals" shall mean all discretionary development and building approvals that Developer is required to obtain to Develop the Project on and with respect to the Property after the Agreement Date consistent with the Development Regulations and this Agreement. "Term" shall have the meaning ascribed in Section 2.4 of this Agreement. "Termination Date" shall have the meaning ascribed in Section 2.4 of this Agreement. "Transfer" shall have the meaning ascribed in Section 11 of this Agreement. 2. General Provisions. 2.1 Plan Consistency, Zoning Implementation. This Agreement and the Development Regulations applicable to the Property will cause City's zoning and other land use regulations for the Property to be consistent with the General Plan. 2.2 Binding Effect of Agreement. The Property is hereby made subject to this Agreement. Development of the Property is hereby authorized and shall be carried out in accordance with the terms of this Agreement. 2.3 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 is the fee simple title to the Property; (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 -7- 3-18 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 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, or affecting Developer's authority or ability to enter into or perform any of its obligations set forth in this Agreement. 2.4 Term. The term of this Agreement ("Term") shall commence on the Effective Date and shall terminate on the "Termination Date." Notwithstanding any other provision set forth in this Agreement to the contrary, if any Party reasonably determines that the Effective Date of this Agreement will not occur because (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 similarly be null and void at such time. The Termination Date shall be the earliest of the following dates: (i) the tenth (10th) anniversary of the Effective Date; (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. -8- 3-19 3. Public Benefits. 3.1 Public Benefit Fee. As consideration for City's approval and performance of its obligations set forth in this Agreement, Developer shall pay to City a fee that shall be in addition to any other fee or charge to which the Property and the Project would otherwise be subject (herein, the "Public Benefit Fee") in the sum of Eighty -Nine Thousand Two Hundred Eighty -Five Dollars and 71/100 ($89,285.71) per residential dwelling unit developed as part of the Project for a total amount of Two Million Five Hundred Thousand Dollars and 00/00 ($2,500,000.00). Developer shall pay the Public Benefit Fee at the time the City issues the first building permit for the Development Plan. The amount of the Public Benefit Fee shall be increased based upon percentage increases in the CPI Index. The first CPI adjustment to the Public Benefit Fee shall occur on the third anniversary of the Agreement Date (the first "Adjustment Date") and subsequent CPI adjustments shall occur on each anniversary of the first Adjustment Date thereafter until expiration of the Term of this Agreement (each, an "Adjustment Date"). The amount of the CPI adjustment on the first Adjustment Date shall be the percentage increase in the CPI Index between the second anniversary of the Agreement Date and the third anniversary of the Agreement Date. The amount of the CPI adjustment on each subsequent Adjustment Date shall be the percentage increase between said Adjustment Date and the immediately preceding Adjustment Date. The amount of the percentage increase in the CPI Index on the applicable Adjustment Dates shall in each instance be calculated based on the then most recently available CPI Index figures such that, for example, if the first Adjustment Date occurs on September 1, 2019, and the most recently available CPI Index figure on that date is the CPI Index for July 2019 (2 months prior to the first Adjustment Date), the percentage increase in the CPI Index on the first Adjustment Date shall be calculated by comparing the CPI Index for July 2018 with the CPI Index for July 2019. In no event, however, shall application of the CPI Index on any Adjustment Date reduce the amount of the Public Benefit Fee (or unpaid portion thereof) below the amount in effect prior to that Adjustment Date. Notwithstanding any other provision set forth in this Agreement to the contrary, during the Term of this Agreement City shall not increase the Public Benefit Fee except pursuant to the CPI Index as stated in this Section 3.1. 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 vesting 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 such 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 seg.), or otherwise. In addition to any other remedy set forth in this Agreement for Developer's Default, if Developer, including any Permitted Transferee, shall fail to timely pay any portion of the Public Benefit Fee when due City shall have the right to (i) withhold issuance of the occupancy permit and any other building, inspection, or development permit or approval for the unit(s) for which the Public Benefit Fee remains unpaid or (ii) withhold issuance of building, occupancy, and other building or development permits for any other portion of the Project that at that time is under common ownership with Developer or Permitted Transferee, as applicable. in 3-20 City shall have the right to spend One Million Eight Hundred Seventy -Five Thousand Dollars and 00/100 ($1,875,000.00) of the total Public Benefit Fee on any public purpose that City determines to be in the public interest, as designated by City in its sole and absolute discretion. The City will use the remainder of the Public Benefit Fee, in its discretion as follows: Three Hundred Twenty -Five Thousand Dollars and 00/100) ($325,000.00) of the Public Benefit Fee for affordable housing, One Hundred Fifty Thousand Dollars and 00/100 ($150,000.00) to fund services for those experiencing homelessness, and One Hundred Fifty Thousand Dollars and 00/100 ($150,000.00) to fund public safety. The Public Benefit Fee is not intended to constitute a Development Exaction, is in addition to the Development Exactions applicable to the Project, and is not subject to restrictions on the use of various forms of Development Exactions. 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) review and approval requirements contained in the Development Regulations, (ii) exercise of any discretionary authority City retains under the Development Regulations, (iii) the approval, conditional approval, or denial of any Subsequent Development Approvals 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 referred to in clauses (i) -(iv) of this sentence, City reserves its full discretion to the same extent City would have such discretion in the absence of this Agreement. In addition, it is understood and agreed that nothing in this Agreement is intended to vest Developer's rights with respect to any laws, regulations, rules, or official policies of any other governmental agency or public utility company with jurisdiction over the Property or the Project; or any applicable federal or state laws, regulations, rules, or official policies that may be inconsistent with this Agreement and that override or supersede the provisions set forth 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. -10- 3-21 Developer may apply to City for permits or approvals necessary to modify or amend the Development specified in the Development Regulations, 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 existing tentative tract maps, tentative parcel maps, or associated conditions of approval, consistent with City of Newport Beach Municipal Code Section 19.12.090. This Agreement does not constitute a promise or commitment by City to approve any such permit or approval, or to approve the same with or without any particular requirements or conditions, and City's discretion with respect to such matters shall be the same as it would be in the absence of this Agreement. 4.2 No Conflicting 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. This Section 4.2 shall not restrict City's ability to enact an ordinance, policy, rule, regulation, or other measure applicable to the Project pursuant to California Government Code Section 65866 consistent with the procedures specified in Section 4.3 of this Agreement. In Pardee Construction Co. v. City of Camarillo (1984) 37 Cal.3d 465, the California Supreme Court held that a construction company was not exempt from a city's growth control ordinance even though the city and construction company had entered into a consent judgment (tantamount to a contract under California law) establishing the company's vested rights to develop its property consistent with the zoning. The California Supreme Court reached this result because the consent judgment failed to address the timing of development. The Parties intend to avoid the result of the Pardee case by acknowledging and providing in this Agreement that Developer shall have the vested right to Develop the Project on and with respect to the Property at the rate, timing, and sequencing that Developer deems appropriate within the exercise of Developer's sole subjective business judgment, provided that such Development occurs in accordance with this Agreement and the Development Regulations, notwithstanding adoption by City's electorate of an initiative to the contrary after the Effective Date. No City moratorium or other similar limitation relating to the rate, timing, or sequencing of the Development of all or any part of the Project and whether enacted by initiative or another method, affecting subdivision maps, building permits, occupancy certificates, or other entitlement to use, shall apply to the Project to the extent such moratorium or other similar limitation restricts Developer's vested rights in this Agreement or otherwise conflicts with the express provisions of this Agreement. 4.3 Reservations of Authority. Notwithstanding any other provision set forth in this Agreement to the contrary, the laws, rules, regulations, and official policies set forth in this Section 4.3 shall apply to and govern the Development of the Project on and with respect to the Property. 4.3.1 Procedural Regulations. 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. -11- 3-22 4.3.2 Processing and Permit Fees. City shall have the right to charge and Developer shall be required to pay all applicable processing and permit fees to cover the reasonable cost to City of processing and reviewing applications and plans for any required Subsequent Development Approvals, building permits, excavation and grading permits, encroachment permits, and the like, for performing necessary studies and reports in connection therewith, inspecting the work constructed or installed by or on behalf of Owner, and monitoring compliance with any requirements applicable to Development of the Project, all at the rates in effect at the time fees are due. 4.3.3 Consistent Future City Regulations. City ordinances, resolutions, regulations, and official policies governing Development which do not conflict with the Development Regulations, or with respect to such regulations that do conflict, where 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. 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; (ii) fees and charges levied by any other public agency, utility, district, or joint powers authority, regardless of whether City collects those fees and charges; or (iii) community facility district special taxes or special district assessments or similar assessments, business license fees, bonds or other security required for public improvements, transient occupancy taxes, sales taxes, property taxes, sewer lateral connection fees, water service connection fees, new water meter fees, and the Property Development Tax payable under Section 3.12 of City's Municipal Code. 4.3.5 Overriding Federal and State Laws and Regulations. Federal and state laws and regulations that override Developer's vested rights set forth in this Agreement shall apply to the Property, together with any City ordinances, resolutions, regulations, and official policies that are necessary to enable City to comply with the provisions of any such overriding federal or state laws and regulations, provided that (i) Developer does not waive its right to challenge or contest the validity of any such purportedly overriding federal, state, or City law or regulation; and (ii) upon the discovery of any such overriding federal, state, or City law or regulation that prevents or precludes compliance with any provision of this Agreement, City or Developer shall provide to the other Party a written notice identifying the federal, state, or City law or regulation, together with a copy of the law or regulation and a brief written statement of the conflict(s) between that law or regulation and the provisions of this Agreement. Promptly thereafter City and Developer shall meet and confer in good faith in a reasonable attempt to 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 ON 3-23 conflict. City agrees to cooperate with Developer at no cost to City in resolving the conflict in a manner which minimizes any financial impact of the conflict upon Developer. City also agrees to process in a prompt manner Developer's proposed changes to the Project and any of the Development Regulations as may be necessary to comply with such overriding federal, state, or City law or regulation; provided, however, that the approval of such changes by City shall be subject to the discretion of City, consistent with this Agreement. 4.3.6 Public Health and Safety. Any City ordinance, resolution, rule, regulation, program, or official policy that is necessary to protect persons on the Property or in the immediate vicinity from conditions dangerous to their health or safety, as reasonably determined by City, shall apply to the Property, even though the application of the ordinance, resolution, rule regulation, program, or official policy would result in the impairment of Developer's vested rights under this Agreement. 4.3.7 Uniform Building Standards. Existing and future building and building - related standards set forth in the uniform codes adopted and amended by City from time to time, including building, plumbing, mechanical, electrical, housing, swimming pool, and fire codes, and any modifications and amendments thereof shall all apply to the Project and the Property to the same extent that the same would apply in the absence of this Agreement. 4.3.8 Public Works Improvements. To the extent Developer constructs or installs any public improvements, works, or facilities, the City standards in effect for such public improvements, works, or facilities at the time of City's issuance of a permit, license, or other authorization for construction or installation of same shall apply. 4.3.9 No Guarantee or Reservation of Utility Capacity. Notwithstanding any other provision set forth in this Agreement to the contrary, nothing in this Agreement is intended or shall be interpreted to require City to guarantee or reserve to or for the benefit of Developer or the Property any utility capacity, service, or facilities that may be needed to serve the Project, whether domestic or reclaimed water service, sanitary sewer transmission or wastewater treatment capacity, downstream drainage capacity, or otherwise, and City shall have the right to limit or restrict Development of the Project if and to the extent that City reasonably determines that inadequate utility capacity exists to adequately serve the Project at the time Development is scheduled to commence. Notwithstanding the foregoing, City covenants to provide utility services to the Project on a non-discriminatory basis (i.e., on the same terms and conditions that City undertakes to provide such services to other similarly situated new developments in the City of Newport Beach as and when service connections are provided and service commences). 4.4 Tentative Subdivision Mans City agrees that Developer may file and process new and existing vesting tentative maps for the Property consistent with California Government Code sections 66498.1-66498.9 and City of Newport Beach Municipal Code Chapter 19.20. Pursuant to the applicable provision of the California Subdivision Map Act (California Government Code section 66452.6(a)), the life of any tentative subdivision map approved for the Property, whether designated a "vesting tentative map" or otherwise, shall be extended for the Term of this Agreement. -13- 3-24 Amendment or Cancellation of Agreement. Other than modifications of this Agreement under Section 8.3 of this Agreement, this Agreement may be amended or canceled in whole or in part only by mutual written and executed consent of the Parties in compliance with California Government Code section 65868 and City of Newport Beach Municipal Code section 15.45.060 or by unilateral termination by City in the event of an uncured default of Developer. 6. Enforcement. Unless this Agreement is amended, canceled, modified, or suspended as authorized herein or pursuant to California Government Code section 65869.5, this Agreement shall be enforceable by either Party despite any change in any applicable general or specific plan, zoning, subdivision, or building regulation or other applicable ordinance or regulation adopted by City (including by City's electorate) that purports to apply to any or all of the Property. 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 Developer fails to cure such noncompliance within the time(s) set forth above, such failure shall -14- 3-25 be considered to be a Default and City shall be entitled to exercise the remedies set forth in Article 8 below. 7.4 Annual Review a Non -Exclusive Means for Determining and Requiring Cure of Developer's Default. The annual review procedures set forth in this Article 7 shall not be the exclusive means for City to identify a Default by Developer or limit City's rights or remedies for any such Default. 8. Events of Default. 8.1 General Provisions. In the event of any material default, breach, or violation of the terms of this Agreement ("Default"), the Party alleging a Default shall deliver a written notice (each, a "Notice of Default") to the defaulting Party. The Notice of Default shall specify the nature of the alleged Default and a reasonable manner and sufficient period of time (twenty (20) 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 (the "Cure Period"). During the Cure Period, the Party charged shall not be considered in Default for the purposes of termination of this Agreement or institution of legal proceedings. If the alleged Default is cured within the Cure Period, then the Default thereafter shall be deemed not to exist. If a 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 a 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. 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 -15- 3-26 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 equitable remedy available to it under this Agreement, including, without limitation, an action for a writ of mandamus, injunctive relief, or specific performance of City's obligations set forth in this Agreement. Upon a City Default, any resulting delays in 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 either Party in delivering a Notice of Default shall not waive that Party's right to deliver a future Notice of Default of the same or any other Default. 8.6 Specific Performance Remedy. 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, 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, specific performance of this Agreement is necessary to compensate Developer if City fails to carry out its obligations under this Agreement or to compensate City if Developer falls to carry out its obligations under this Agreement. 8.7 Monetary Damages. The Parties agree that monetary damages shall not be an available remedy for either Party for a Default hereunder by the other Party; provided, however, that (i) nothing in this Section 8.7 is intended or shall be interpreted to limit or restrict City's right to recover the Public Benefit Fees due from Developer as set forth herein; and (ii) nothing in this Section 8.7 is intended or -16- 3-27 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 Paqy 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, and costs of investigation and preparation before initiation of the Action. 9. Force Majeure. Neither Party shall be deemed to be in Default where failure or delay in performance of any of its obligations under this Agreement is caused, through no fault of the Party whose performance is prevented or delayed, by floods, earthquakes, other acts of God, fires, wars, riots or similar hostilities, strikes or other labor difficulties, state or federal regulations, or court actions. Except as specified above, nonperformance shall not be excused because of the act or omission of a third person. In no event shall the occurrence of an event of force majeure operate to extend the Term of this Agreement. In addition, in no event shall the time for performance of a monetary obligation, including without limitation Developer's obligation to pay Public Benefit Fees, be extended pursuant to this Section. -17- 3-28 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 active negligence of City or one or more of City's officials, employees, agents, attorneys, and contractors (collectively, the "City's Affiliated Parties"), Developer shall indemnify, defend, and hold harmless City and City's Affiliated Parties from and against all suits, claims, liabilities, losses, damages, penalties, obligations, and expenses (including but not limited to reasonable attorneys' fees and costs) (collectively, a "Claim") that may arise, directly or indirectly, from the acts, omissions, or operations of Developer or Developer's agents, contractors, subcontractors, agents, or employees in the course of Development of the Project or any other activities of Developer relating to the Property or Project or pursuant to this Agreement. City shall have the right to select and retain separate counsel to represent City against the Claim and the City's 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). 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 -18- 3-29 the date of the Agreement Date, regardless of whether the Effective Date occurs, and shall survive the Termination Date. 10.3 Environmental Indemnity. In addition to its indemnity obligations set forth in Section 10.1, from and after the Effective Date Developer shall indemnify, defend, and hold harmless City and City's Affiliated Parties from and against any and all Claims for personal injury or death, property damage, economic loss, statutory penalties or fines, and damages of any kind or nature whatsoever, including without limitation reasonable attorney's fees, expert witness fees, and costs, based upon or arising from any of the following: (i) the actual or alleged presence of any Hazardous Substance on or under any of the Property in violation of any applicable Environmental Law; (ii) the actual or alleged migration of any Hazardous Substance from the Property through the soils or groundwater to a location or locations off of the Property; and (iii) the storage, handling, transport, or disposal of any Hazardous Substance on, to, or from the Property and any other area disturbed, graded, or developed by Developer in connection with Developer's Development of the Project. The indemnity provisions in this Section 10.3 shall commence on the Effective Date occurs, and shall survive the Termination Date. 11. Assignment. Developer shall have the right to sell, transfer, or assign (hereinafter, collectively, a "Transfer") Developer's interest in or fee title to the Property, in whole or in part, to a Permitted Transferee (which successor, as of the effective date of the Transfer, shall become the "Developer" under this Agreement) at any time from the Agreement Date until the Termination Date; provided, however, that no such Transfer shall violate the provisions of the Subdivision Map Act (Government Code Section 66410 et seq.) or City's local subdivision ordinance and any such transfer shall include the assignment and assumption of Developer's rights, duties, and obligations set forth in or arising under this Agreement as to the Property or the portion thereof so Transferred and shall be made in strict compliance with the following conditions precedent: (i) no transfer or assignment of any of Developer's rights or interest under this Agreement shall be made unless made together with the Transfer of all or a part of Developer's interest in the Property; and (ii) prior to the effective date of any proposed Transfer, Developer (as transferor) shall notify City, in writing, of such proposed Transfer and deliver to City a written assignment and assumption, executed in recordable form by the transferring and successor Developer and in a form subject to the reasonable approval of the City Attorney of City (or designee), pursuant to which the transferring Developer assigns to the successor Developer and the successor Developer assumes from the transferring Developer all of the rights and obligations of the transferring Developer with respect to the Property and this Agreement, or interest in the Property, or portion thereof to be so Transferred, including in the case of a partial Transfer the obligation to perform such obligations that must be performed outside of the Property so Transferred that are a condition precedent to the successor Developer's right to develop the 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 -19- 3-30 obligations of the Developer with respect to the balance of the Property, without Developer's written consent. Notwithstanding any Transfer, the transferring Developer shall continue to be jointly and severally liable to City, together with the successor Developer, to perform all of the transferred obligations set forth in or arising under this Agreement unless there is full satisfaction of all of the following conditions, in which event the transferring Developer shall be automatically released from any and all obligations with respect to the portion of the Property so Transferred: (i) the transferring Developer no longer has a legal or equitable interest in the portion of the Property so Transferred other than as a beneficiary under a deed of trust; (ii) the transferring Developer is not then in Default under this Agreement and no condition exists that with the passage of time or the giving of notice, or both, would constitute a Default hereunder; (iii) the transferring Developer has provided City with the notice and the fully executed written and recordable assignment and assumption agreement required as set forth in the first paragraph of this Section 11; and (iv) the successor Developer either (A) provides City with substitute security equivalent to any security previously provided by the transferring Developer to City to secure performance of the successor Developer's obligations hereunder with respect to the Property, or interest in the Property, or the portion of the Property so Transferred, 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. Mortga eights. 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. -20- 3-31 12.3 Mortgagee Not Obligated. Notwithstanding the provisions of this Section 12.3, a Mortgagee will not have any obligation or duty under the terms of this Agreement to perform the obligations of Developer or other affirmative covenants of Developer, or to guarantee this performance except that: (i) the Mortgagee shall have no right to develop the Project under the Development Regulations without fully complying with the terms of this Agreement; and (ii) to the extent that any covenant to be performed by Developer is a condition to the performance of a covenant by City, that performance shall continue to be a condition precedent to City's performance. 12.4 Notice of Default to Mortanee; Right of Mortgagee to Cure. Each Mortgagee shall, upon written request to City, be entitled to receive written notice from City of: (i) the results of the periodic review of compliance specified in Article 7 of this Agreement, and (ii) any default by Developer of its obligations set forth in this Agreement. Each Mortgagee shall have a further right, but not an obligation, to cure the Default within thirty (30) 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 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 -21- 3-32 With a copy to: City Attorney City of Newport Beach 100 Civic Center Drive Newport Beach, California 92660 TO DEVELOPER: Newport Center Anacapa Associates, LLC 901 Dove Street, Suite 270 Newport Beach, CA 92660 Attn: With a copy to: Either Party may change the address stated in this Section 14.1 by delivering notice to the other Party in the manner provided in this Section 14. 1, and thereafter notices to such Party shall be addressed and submitted to the new address. Notices delivered in accordance with this Agreement shall be deemed to be delivered upon the earlier of: (i) the date received or (iii) three business days after deposit in the mail as provided above. 14.2 Project as Private Undertaking. The Development of the Project is a private undertaking. Neither Party is acting as the agent of the other in any respect, and each Party 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. 14.3 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. 14.4 Estoppel Certificates. At any time, either Party may deliver written notice to the other Party requesting that that Party certify in writing that, to the best of its knowledge: (i) this Agreement is in full force and effect and is binding on the Party; (ii) this Agreement has not been amended or modified either orally or in writing or, if this Agreement has been amended, the Party providing the certification shall identify the amendments or modifications; and (iii) the requesting Party is not in Default in the performance of its obligations under this Agreement and no event or situation has occurred that with the passage of time or the giving of Notice or both would constitute a Default or, if such is not the case, then the other Party shall describe the nature and amount of the actual or prospective Default. Such estoppel certificates may be relied upon only by the Parties, their respective successors and assigns, and, in the event of an estoppel certificate issued by City, a -22- 3-33 Mortgagee of Developer, including a Permitted Transferee, and its actual or prospective Mortgagee. City shall be entitled to payment/reimbursement for its actual and reasonable costs of investigation and preparation of an estoppel certificate prior to issuing the same. The Party requested to furnish an estoppel certificate shall execute and return the certificate within thirty (30) calendar days following receipt. 14.5 Rules of Construction. The singular includes the plural; the masculine and neuter include the feminine; "shall" is mandatory; and "may" is permissive. 14.6 Time Is of the Essence. Time is of the essence regarding each provision of this Agreement as to which time is an element. 14.7 Waiver. The failure by a Party to insist upon the strict performance of any of the provisions of this Agreement by the other Party, and failure by a Party to exercise its rights upon a Default by the other Party, shall not constitute a waiver of that Party's right to demand strict compliance by the other Party in the future. 14.8 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be identical and may be introduced in evidence or used for any other purpose without any other counterpart, but all of which shall together constitute one and the same agreement. 14.9 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. 14.10 Severabilitv. 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 neither Party shall receive any of the benefits of the Agreement without the full performance by such Party of all of its obligations provided for under this Agreement. Without limiting the generality of the foregoing, the Parties intend that Developer shall not receive any of the benefits of this Agreement if any of Developer's obligations are rendered void or unenforceable as the result of any third party litigation, and City shall be free to exercise its legislative discretion to amend or repeal the Development Regulations applicable to the Property -23- 3-34 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 14.10 shall apply regardless of whether the Effective Date occurs and after the Termination Date. 14.11 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 either Party. 14.12 Successors and Assigns, Constructive Notice and Acceptance. The burdens of this Agreement shall be binding upon, and the benefits of this Agreement shall inure to, all successors in interest to the Parties to this Agreement. Except for those provisions relating to indemnity in Section 10, all other, 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 14.12 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. 14.13 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. 14.14 Applicable Law and Venue. This Agreement shall be construed and enforced consistent with the laws of the State of California, without regard to conflicts of law principles. Any action at law or in equity arising under this Agreement or brought by any Party for the purpose of enforcing, construing, or determining the validity of any provision of this Agreement shall be filed and tried in the Superior Court of the County of Orange, State of California, or the United States District Court for the Central District of California. The Parties waive all provisions of law providing for the removal or change of venue to any other court. -24- 3-35 14.15 Section Headings. All section headings and subheadings are inserted for convenience only and shall not affect construction or interpretation of this Agreement. 14.16 Incorporation of Recitals and Exhibits. All of the Recitals are incorporated into this Agreement by this reference. Exhibits A and B are attached to this Agreement and incorporated by this reference as follows: EXHIBIT DESIGNATION DESCRIPTION A Legal Description of Property B Depiction of the Property 14.17 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] -25- 3-36 ATTEST: Leilani I. Brown, City Clerk APPROVED AS TO FORM: Aaron Harp, City Attorney SIGNATURE PAGE TO DEVELOPMENT AGREEMENT "DEVELOPER" NEWPORT CENTER ANACAPA ASSOCIATES, LLC, a California limited liability company L -In "CITY" CITY OF NEWPORT BEACH Brad Avery, Mayor IK� 3-37 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 Orange ) On , before me, , a Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature 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 Orange ) On , before me, , a Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature 112/066751-0108 9650722.2 a07114/21 -2%- 3-38 EXHIBIT A LEGAL DESCRIPTION OF PROPERTY THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: PARCEL A PARCEL 1, IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP FILED IN BOOK 29, PAGE 34, OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. PARCEL B: A NON-EXCLUSIVE EASEMENT FOR INGRESS AND EGRESS OVER PARCEL A, IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP FILED IN BOOK 76 PAGE 32 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. EXCEPTING THEREFROM ANY AND ALL OIL, OIL RIGHTS, MINERALS, MINERAL RIGHTS, NATURAL GAS RIGHTS, AND OTHER HYDROCARBONS BY WHATSOEVER NAME KNOWN, GEOTHERMAL STEAM, AND OTHER MATERIAL RESOURCES AND ALL PRODUCTS DERIVED FROM ANY OF THE FOREGOING, THAT MAY BE WITHIN OR UNDER THE LAND, TOGETHER WITH THE PERPETUAL RIGHT OF DRILLING, MINING, EXPLORING AND OPERATING THEREFOR AND STORING IN AND REMOVING THE SAME FROM THE LAND OR ANY OTHER LAND, INCLUDING THE RIGHT TO WHIPSTOCK OR DIRECTIONALLY DRILL AND MINE FROM LANDS OTHER THAN THOSE CONVEYED HEREBY, OIL OR GAS WELLS, TUNNELS AND SHAFTS INTO, THROUGH OR ACROSS THE SUBSURFACE OF THE LAND, AND TO BOTTOM SUCH WHIPSTOCKED OR DIRECTIONALLY DRILLED WELLS, TUNNELS AND SHAFTS UNDER AND BENEATH OR BEYOND THE EXTERIOR LIMITS THEREOF, AND TO REDRILL, RETUNNEL, EQUIP, MAINTAIN, REPAIR, DEEPEN AND OPERATE ANY SUCH WELLS OR MINES, WITHOUT HOWEVER, THE RIGHT TO DRILL, MINE, STORE, EXPLORE AND OPERATE THROUGH THE SURFACE OR THE UPPER 500 FEET OF THE SUBSURFACE OF THE LAND, AS RESERVED IN THE DEED FROM THE IRVINE COMPANY, A MICHIGAN CORPORATION, RECORDED FEBRUARY 20, 1992, AS INSTRUMENT NO. 92-099183, OF OFFICIAL RECORDS. ALSO EXCEPTING THEREFROM ANY AND ALL WATER, RIGHTS OR INTERESTS THEREIN, NO MATTER HOW ACQUIRED BY GRANTOR, AND OWNED OR USED BY GRANTOR IN CONNECTION WITH OR WITH RESPECT TO THE LAND, TOGETHER WITH THE RIGHT AND POWER TO EXPLORE, DRILL, REDRILL, REMOVE AND STORE THE SAME FROM THE LAND OR TO DIVERT OR OTHERWISE UTILIZE SUCH WATER RIGHTS OR INTERESTS ON ANY OTHER PROPERTY OWNED OR LEASED BY GRANTOR, WHETHER SUCH WATER RIGHTS SHALL BE RIPARIAN, OVERLYING, APPROPRIATIVE, LITTORAL, PERCOLATING, PRESCRIPTIVE, ADJUDICATED, STATUTORY OR CONTRACTUAL, BUT WITHOUT, HOWEVER, ANY RIGHT TO ENTER UPON THE SURFACE OF THE LAND IN THE EXERCISE OF SUCH RIGHTS, AS RESERVED IN THE DEED FROM THE IRVINE COMPANY, A MICHIGAN CORPORATION, RECORDED FEBRUARY 20, 1992, AS INSTRUMENT NO. 92-099183, OF OFFICIAL RECORDS. APN: 442-231-12 112/066751-0108 9650722.2 a07/14/21 A-1 3-39 112/066751-0108 9650722.2 a07/14/21 EXHIBIT B DEPICTION OF PROPERTY ISI 3-40 Attachment B Ordinance No. 2021-20 (PC) 3-41 ORDINANCE NO. 2021-20 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA, APPROVING ZONING CODE AMENDMENT NO. CA2020-008 AND PLANNED COMMUNITY DEVELOPMENT PLAN NO. PC2020-001 ESTABLISHING THE RESIDENCES AT NEWPORT CENTER LOCATED AT 150 NEWPORT CENTER DRIVE (PA2020-020) WHEREAS, Section 200 of the City of Newport Beach ("City") Charter vests the City Council with the authority to make and enforce all laws, rules and regulations with respect to municipal affairs subject only to the restrictions and limitations contained in the Charter and the State Constitution, and the power to exercise, or act pursuant to any and all rights, powers, and privileges, or procedures granted or prescribed by any law of the State of California; WHEREAS, an application was filed by Newport Center Anacapa Associates, LLC ("Applicant"), with respect to property located at 150 Newport Center Drive and legally described in Exhibit "A," which is attached hereto and incorporated herein by reference ("Property"); WHEREAS, the Project includes the demolition of an existing 2,085 -square -foot car wash, convenience market, and gas station and the construction of a four-story structure consisting of 28 condominium units and common space amenity areas over a two-level below -grade parking garage ("Project") which require the following approvals from the City: • General Plan Amendment No. GP2020-001 — to change the Property's land use designation from Regional Commercial Office (CO -R) to Multiple Residential (RM) and create a new Anomaly Location for the Property that authorizes a maximum development density of 28 dwelling units; • Zoning Code Amendment No. CA2020-008 — to change the Property's zoning designation from Office Regional (OR) to Planned Community (PC) District; • Planned Community Development Plan No. PC2020-001 - to establish land uses and development standards for the Property including a waiver of the minimum site area; • Major Site Development Review No. SD2020-001 — to allow for the development of a four-story structure containing 28 luxury condominium units and common space areas over a two-level below -grade parking garage; 3-42 • Tentative Tract Map No. NT2020-001 — to establish a 28 -unit residential condominium subdivision map on the 1.26 -acre Property that would allow each unit to be sold individually; • Development Agreement No. DA2020-001 — to provide the Applicant with the vested right to develop the Project subject to the rules and regulations in effect at the time of Project approval and to provide the City with assurance that certain obligations of the Applicant will be met, including public benefit fees; • Environmental Impact Report No. ER2021-002 - to disclose reasonably foreseeable environmental impacts resulting from the legislative and project specific discretionary approvals, the City has determined that an Initial Study and Environmental Impact Report ("EIR") are warranted for the Project pursuant to California Public Resources Code Section 23000 et seq. ("CEQA"), Title 14, Division 6, Chapter 3 of the California Code of Regulations ("CEQA Guidelines"), and City Council Policy K-3; and • Rescind Use Permit No. UP1461 — rescind use permit since the Project will replace the operation of the existing car wash; WHEREAS, the Property is designated Regional Commercial Office (CO -R) by the City of Newport Beach General Plan ("General Plan") Land Use Element and is located within the Office Regional (OR) Zoning District; WHEREAS, the Property is not located within the coastal zone; WHEREAS, a study session was held on May 6, 2021, in the Council Chambers located at 100 Civic Center Drive, Newport Beach to introduce the Project to the Planning Commission and discuss the procedures for environmental review; WHEREAS, the Planning Commission held a public hearing on August 19, 2021 in the Council Chambers at 100 Civic Center Drive, Newport Beach. A notice of time, place and purpose of the hearing was given in accordance with California Government Code Section 54950 et seq. ("Ralph M. Brown Act") and Chapters 15.45 (Development Agreements), 19.12 (Tentative Map Review), 20.56 (Planned Community District Procedures), and 20.62 (Public Hearings) 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; 3-43 WHEREAS, at the hearing, the Planning Commission adopted Resolution No. PC2021-024 by a unanimous vote (7 ayes, 0 nays) recommending the City Council approve the Project; and WHEREAS, the City Council held a public hearing on September 28, 2021, 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 Chapters 15.45 (Development Agreements), 19.12 (Tentative Map Review), 20.56 (Planned Community District Procedures), and 20.62 (Public Hearings) of the NBMC. Evidence, both written and oral, was presented to, and considered by, the City Council at this public hearing. NOW THEREFORE, the City Council of the City of Newport Beach ordains as follows: Section 1: The City Council has considered the recommendation of the Planning Commission and 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: Zoning Code Amendment No. CA2020-008 is hereby approved to rezone the Property from OR (Office Regional) to PC -61 (Residences at Newport Center Planned Community), as depicted in Exhibit "B," which is attached hereto and incorporated herein by reference. Section 3: Planned Community Development Plan is hereby approved, as depicted in Exhibit "C," which is attached hereto and incorporated herein by reference, thereby establishing the permitted uses, development standards, and design guidelines for the Property. Additionally, the City Council hereby waives the minimum acreage requirement for the establishment of a PC District as authorized in Section 20.25.020 (Area Requirements) of the NBMC. Section 4: Amendments to Title 20 (Planning and Zoning) of the NBMC are legislative acts. Neither Chapters 20.66 (Amendments) and 20.56 (Planned Community Development District Procedures) of Title 20 (Planning and Zoning) of the Newport Beach Municipal Code, the Charter of the City of Newport Beach, nor Article 2 (Adoption of Regulations) of Chapter 4 (Zoning Regulations) of Division 1 (Planning and Zoning) of Title 7 (Planning and Land Use) of the California Government Code set forth any required findings for either approval or denial of amendments to the NBMC. Nevertheless, rezoning the Property to PC -61 Residences at Newport Center is 3-44 consistent with the purpose of Planned Community Districts as specified in NBMC Section 20.56.010 for the reasons set forth below. Facts in Support of Finding: 1. PC -61 (Residences at Newport Center Planned Community) District meets the intent and purpose for a PC as specified in NBMC Section 20.56.010 (Purpose) given its location in the Newport Center area which includes a mixture of shopping, hotels, commercial support uses, professional offices, and residential developments that cumulatively contain the ingredients of a planned community. PC -61 (Residences at Newport Center Planned Community) District PC District adds to this diversity assisting the City in larger scale community planning. 2. PC -61 (Residences at Newport Center Planned Community) District would establish appropriate site and project specific setbacks, density, and height limits to the Property given its urban location. All required parking is provided on-site. The Property is fully developed and does not support any natural resources and all potential environmental impacts associated with the project are appropriately addressed through standard building permit procedures, conditions of approval, and the mitigation measures identified in the Environmental Impact Report and contained in the Mitigation Monitoring and Reporting Program. 3. The size, density and character of the proposed dwelling units complement the existing land uses in the project area and include design elements consistent with Land Use Element Policy 5.1.9 (Character and Quality of Multi -Family Residential) that require multi -family dwellings to be designed to convey a high- quality architectural character. Consistent with General Plan Policy LU 6.2.1 (Residential Supply), the provision of 28 dwelling units on the Property would accommodate Newport Beach population needs identified in the General Plan Housing Element and accommodate market demand for residential uses. 4. The Property is located in an area of the City that has sufficient utilities systems to serve the Project. 5. A waiver of the 10 -acre minimum of developed site area is requested as part of the establishment of the PC Zoning District. The Newport Center area is an urban, developed region of the City that cumulatively includes all of the necessary ingredients of a Planned Community. 3-45 6. The future development of the Property affected by the proposed amendment 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 Residences at Newport Center Planned Community (PC) Zoning District of the NBMC. 7. A voluntary development agreement has been requested by the Applicant as the Project would add new residential dwelling units within Statistical Area L1 (Newport Center). 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, and Government Code Section 65864 et seq. Section 5: The recitals provided in this ordinance are true and correct and are incorporated into the substantive portion of this ordinance. Section 6: 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 7: The Residences at Newport Center Final Environmental Impact Report (SCH No. 2020110087) was prepared for the project in compliance with CEQA, the State CEQA Guidelines, and City Council Policy K-3. By Resolution No. 2021-90, the City Council, having final approval authority over the Project, adopted and certified as complete and adequate the Residences at Newport Center Final Environmental Impact Report (SCH No. 2020110087) and adopted "Mitigation Monitoring and Reporting Program." Resolution No. 2021-90, including all findings contained therein, is hereby incorporated by reference. Section 8: Except as expressly modified in this ordinance, all other sections, subsections, terms, clauses and phrases set forth in the Newport Beach Municipal Code shall remain unchanged and shall be in full force and effect. Section 9: 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. 3-46 Ordinance No. 2021-20 Page 6 of 6 This ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach held on the 28th day of September, 2021, and adopted on the 12th day of October, 2021, by the following vote, to -wit: AYES: NAYS: ABSENT: BRAD AVERY, MAYOR ATTEST: LEILANI I. BROWN, CITY CLERK APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE AARONJC. HARP, CITY ATTORNEY i Attachment(s) Exhibit A - Legal Description Exhibit B - Zoning Map Amendment Exhibit C - PC -61 (Residences at Newport Center Planned Community Development Plan) 3-47 Exhibit "A" Legal Description The property is legally described as Parcel 1 of Parcel Map No. 29-34 (Resubdivision No. 282) being a portion of Block 93 of Irvine's subdivision as per map recorded in Book 1, Page 88 of Miscellaneous Record Maps, records of Orange County, California. Exhibit "B" Zoning Map Amendment 3-49 Y PC PC 47 PC 1 o, 6&+E4HYrrlfie a4 PCS PC 8 56 566 6 PC 56 � noa w S nHihkC+ e� E4 (mow PC 8 F(n ., PC 56 s,�HKoe,S nF 46 f PC 27 CA2020-008 (PA2020-020) N J` N E W PC N[ BE A C H Zoning Code Amendment City of Newport Beach GIS Division 150 Newport Center Dr August 30, 2021 3-50 Exhibit "C" PC -61 (Residences at Newport Center Planned Community Development Plan) 3-51 RESIDENCES AT NEWPORT CENTER Planned Community Development Plan Date: April 19, 2021 Ordinance No. Adopted 12020 3-52 Residences at Newport Center Planned Community Page 12 TABLE OF CONTENTS 1.0 Introduction and Purpose 3 2.0 Land Use and Development Regulations 4 2.1 Architectural Design 4 2.2 Permitted Uses 5 2.3 Building Setbacks 5 2.4 Density: Number of Units 6 2.5 Floor Area 6 2.6 Grade for Purposes of Determining Height 6 2.7 Height 7 2.8 Landscaping and Irrigation 7 2.9 Lighting 9 2.10 Mechanical Equipment 9 2.11 Open space 9 2.12 Parking 10 2.13 Signs 11 2.14 Podium Walls 12 2.15 Patio Walls 13 2.16 Trash Service and Container Storage 14 2.17 Construction Requirements 14 a. Archaeological/Paleontological b. Building Codes c. Grading d. Sewer Service e. Storm Water Management f. Telephone, Gas and Electrical Service g. Water Service 3.0 Site Development Review 16 3.1 Purpose 16 3.2 Application 16 3.3 Design (Elevations) and Site Development of Building 16 LIST OF EXHIBITS Exhibits Name Exhibit Number Conceptual Site Plan & Project Summary A Setback Exhibit B Building Tabulation C Sections D 3-53 Residences at Newport Center Planned Community Page 13 1.0 INTRODUCTION AND PURPOSE The Residences at Newport Center Planned Community Development Plan (PC) is composed of 28 condominium units located in 4 story buildings totaling 103,158 square feet of gross building area connected by a common lobby and entry. The project is located at the southwest intersection of Newport Center Drive and Anacapa Drive in Newport Center on a 54,949 square feet parcel. The vision presented in the plan shows two luxury residential buildings with a common entrance and lobby intended to integrate a casual urban lifestyle with a contemporary California building design. The unit mix includes 8 residential units on the ground floor, 16 flats on levels 2 and 3 and four penthouses on Level 4. The square footage of the residential units is 85,236 square feet. Level 1 will also have a lobby and a lounge with a kitchen, fitness room/spa, lap pool and office that is approximately 5,518 square feet (not including pool area) and does not include circulation. The project is designed for two levels of parking below grade. Level B-1 is partially at grade on the southern edge to allow tenant and visitor access. General delivery will occur at the building entry off Anacapa Drive and moving van access is provided on the south of the building. All units have a private 2 -car garage located within the lower levels. Further, there is one-way vehicular access to the garage from the front entry of the project primarily for visitors. The PC identifies land use relationships and associated development standards for the district identified as the Residences at Newport Center. To that end, it coordinates and complements the broader scale and massing of the Newport Center area and specifically Block 100. The PC ensures a broader coordination and consistency with the surrounding neighborhood, to include a high level of contemporary architectural quality supporting the Newport Center environment along with pedestrian connectivity. The PC includes a specific set of standards incorporated through a comprehensive review of the project within Newport Center while ensuring substantial compliance with the spirit and intent of the Zoning Code. The PC ensures the following site development review objectives are met: 1. Ensure consistency with General Plan policies related to the preservation of established community character, and expectations for high quality development. 2. Respect the physical and environmental characteristics of the site. 3. Ensure safe and convenient access and circulation for pedestrians and vehicles. 4. Allow for and encourage individual identity for specific uses and structures. 5. Encourage the maintenance of a distinct neighborhood and/or community identity. 3-54 Residences at Newport Center Planned Community Page 14 6. Minimize or eliminate negative or undesirable visual impacts. 7. Ensure protection of significant views from public right(s)-of-way in compliance with NBMC Section 20.30. 100 (Public View Protection); 8. Allow for different levels of review depending on the significance of the development project (Newport Beach, 2015a). Whenever the regulations contained in the PC conflict with the regulations of the Newport Beach Municipal Code (NBMC), the regulations contained in the PC shall take precedence. The NBMC shall regulate all development within the PC when such regulations are not provided within the PC Regulations. 2.0 LAND USE AND DEVLOPMENT The following development standards shall apply to the residential condominium units. 2.1 ARCHITECTURAL DESIGN The Residences at Newport Center design is inspired by creating a casual yet elegant architecture that is conceived as two casual and contemporary 4 story buildings that are Iinked together via a modern glass entry with a water feature creating the entry into the lobby. Architecturally, the buildings are proportioned with a defined base, middle, and top that is reinforced by flat plate structure and glass walls. The elevations are presented through the use of massing, setbacks and subtle variations in the roof line. The building's material palate consists of stone neutrals and glass building facade compatible with the surrounding development in Newport Center. The design will complement, enhance, and be compatible with the adjacent retail and office properties. In keeping with this philosophy, the exterior will be comprised predominately of stone base, stone cladding, metal finishes and glass. Massing offsets, variations of roof line, varied textures, recesses, articulation, and design accents on the elevation are integrated to enhance the expression of a unique and contemporary architectural style. All first floor residences include outdoor patios and resident entries from the public lobby. Fenestration of the buildings is developed around the "California Coastal" view of indoor — outdoor living. Openings above level 1 will have foldable doors allowing for the full aperture to engage with interior living. Connections to the common area are reinforced via a social gathering space within the lobby that incorporates both interior and exterior landscape areas. The exterior landscaping will further enhance the feel of a luxury lifestyle at the adjacent intersection of Anacapa and Newport Center Drive. The crosswalks at the corner of Newport Center Drive and Anacapa Drive shall enhance the visual connection to the adjoining office, entertainment, restaurants, and medical districts. Along Anacapa Drive, the project will provide resident access via a 27 foot wide driveway served by a luxurious lobby and entry water feature. 3-55 Residences at Newport Center Planned Community Page 15 Further, there is access to the visitor parking via a one-way ramp to the lower level. Optionable valet parking will be provided at the entry level. A dog run on the ground level at the southwest corner is provided for the residents. 2.2 PERMITTED USES a. Condominiums (Multi -Family Residential). b. On-site recreational facilities, valet station, wine storage, separate dedicated storage areas, and other structures ancillary to residential uses. c. Telecommunications facilities are permitted in accordance with Chapter 20.49 (Wireless Telecommunications Facilities) of the NBMC. d. Land uses that are not listed above are not allowed, except as provided by Chapter 20.12 (Interpretation of Zoning Code Provisions) of the NBMC or as required by State Law. e. Temporary uses may be allowed only upon approval of a limited term permit pursuant to Section 20.52.040 (Limited Term Permits) of the NBMC. 2.3 BUILDING SETBACKS a. Above grade level podium (required/provided) Anacapa Drive 15 feet/26 feet (including a 3 -foot pedestrian easement) 21 feet for the roof overhang Newport Center Drive 15 feet /15 feet 10 feet at the roof overhang Western property line 0 feet/l9 feet 13 feet 6 inches at the roof overhang Southern property line 0 feet/ 19 feet (Including a 10 -foot private pedestrian walkway easement) b. Below grade level podium (required/provided) Anacapa Drive 0 feet/ 15 feet Newport Center Drive 0 feet/ 15 feet 3-56 Residences at Newport Center Planned Community Page 16 Western Property Line 0 feet/ 7 feet for basement walls Southern Property line 0 feet/ 10 feet Patios may encroach up to 7 feet 4 inches into required setback areas. Decks and balconies may encroach up to 2 feet 6 inches into the required setback. Decorative architectural features such as roof overhangs, brackets, and eaves may encroach up to 30 inches into a required setback area, provided that no architectural features shall project closer than twenty-four inches from a side property line. Further, the roof overhang on Newport Center Drive may extend up to 60 inches into the setback. The footings on the south of the building may encroach up to 3 feed feet into the easement Fences, hedges, and walls may encroach into the required setback areas subject to the requirements set forth in Section 2.14. 2.4 DENSITY The maximum allowable number of condominium residential units shall be 28. 2.5 FLOOR AREA a. Building Area The maximum gross building area limit for the development is 103,158 gross square feet at a floor area ratio (FAR) of 1.88. Gross building Area Definition: The following areas shall be included in calculations of gross floor area: a) Any interior finished portion of a structure that is accessible and that measures more than six feet from finished floor to ceiling. The following areas shall be excluded: 1. Stairwells and elevator shafts above the first level. 2. The surrounding exterior patio areas. 3. Parking structures including private garages and mechanical areas within the parking structure. b. Floor Area per Unit. Residential uses are measured on a per unit basis. i. Ground floor (I" floor): 1,430 square feet minimum ii. Units on floor 2: 3-57 Residences at Newport Center Planned Community Page 17 2,493 square feet minimum iii. Units on floor 3: 2,316 square feet minimum iii. Penthouses (floor 4): 5,223 square feet minimum 2.6 STANDARDS FOR ALLOWABLE HEIGHTS The building heights are measured from established grade as hereinafter defined. The building is on a sloping surface and the measurement of height is taken from the building entrance at 167.75 feet (NAVD88). Thus, established grade shall be defined at an elevation of 167 feet 9 inches (NAVD88). 2.7 HEIGHT The building height shall not exceed 52 feet I1 inches from the established grade (167.75 feet NAVD88) of the site or 220 feet 8 inches above mean sea level (AMSL). The height of the open area between the buildings is approximately 19 feet 8 inches above the established grade of the site or 187 feet 6 inches NAVD88. Rooftop appurtenances are permitted and may exceed the maximum building height by up to 7 feet (227.66 feet NAVD88). Rooftop appurtenances may include, but are not limited to, stairwell and elevator shaft housing, antennae, window washing equipment, and wireless communication facilities. The mechanical equipment for this project shall be sited in the interior of the 2 -level parking structure. Rooftop appurtenances shall not exceed 30 percent of the overall roof area and shall be focused toward the interior of the building footprint adjacent to the elevator override and stairway. Rooftop appurtenances must be screened from view; the height of rooftop appurtenances shall not exceed the height of the screening. Supports for window washing equipment are permitted and are not required to be screened from view. Rooftop appurtenances within the 7 -foot limitation are subject to the review and approval of the Planning Division. Architectural features may exceed the maximum building height up to 2 feet (169.75 feet NAVD88). Architectural features include the building rooftop edge and other decorative rooftop features defined as visually prominent or formally significant elements of a building that express its architectural language and style in a complementary fashion. Architectural features should be logical extensions of the massing, details, materials, and color of the building which complement and celebrate its overall aesthetic character. Such features must be an extension of the architectural style of the building in terms of materials, design, and color. 3-58 Residences at Newport Center Planned Community Page 18 2.8 LANDSCAPING AND IRRIGATION A minimum of 15 percent of the lot area shall be landscaped (8,242 square feet). Landscaping and irrigation shall be provided in all areas not devoted to structure, driveways, walkways, and private patios to enhance the appearance of the development, reduce heat and glare, control soil erosion, conserve water, screen adjacent land uses, and preserve the integrity of the PC. Site landscaping and irrigation will be designed and planted in accordance with Chapter 20.36 (Landscaping Standards of the Newport Beach Municipal Code (NBMC) and Chapter 14.17 f Water -Efficient Landscaping) of the Newport Beach Municipal Code. Plants shall be adapted to the coastal climate of Newport Beach and appropriate to the specific soil, topographic, and sun/shade conditions of the project site. Drought -tolerant plants shall be used to the maximum extent practicable. Plant species having comparable water requirements shall be grouped together for efficient use of irrigation water. All plant materials shall conform to or exceed the plant quality standards of the latest edition of American Standard for Nursery Stock published by the American Association of Nurserymen, or the equivalent. Plant selection shall be harmonious to the character of the project and surrounding projects and shall not be listed as an invasive species by the California Invasive Plant Council. a. Minimum Landscape Requirements: 1. Landscaping shall incorporate a street tree species along Newport Center Drive (existing Mexican Fan Palms to be protected on Newport Center Drive) and Anacapa Drive (Lemon scented Gum, Eucalyptus citriodora or other tree to the satisfaction of the General Services Division). The same species street tree shall be planted on both sides of Anacapa Drive, north of the drive entry (upon the adjacent property owner's approval). 2. The Anacapa Drive parkway shall be maintained and landscaped to complement the existing on-site landscaping. Landscaping and irrigation shall consist of a combination of trees, shrubs, and groundwater and hardscape improvements. 3. The landscaped island at the southern entry within the ingress/egress easement shall be one continuous landscape area as shown on the attached Exhibit A (upon the underlying property owner's approval). 4. Landscaping shall be located so as not to impede vehicular sight distance to the satisfaction of the City Traffic engineer. 5. Planting areas adjacent to vehicular entrances shall be protected by a continuous concrete curb or similar perimeter barrier. 6. The ground floor landscape area shall include a dog run for use by the occupants of the project. 7. Landscape areas shall provide a minimum width dimension of 2.5 feet to provide adequate planting area. 8. Evergreen planting a minimum of 5 feet high shall be used to screen the podium wall along the eastern property line (along Newport Center Drive). 3-59 Residences at Newport Center Planned Community Page 19 9. All landscape materials and irrigation systems shall be maintained in accordance with the approved landscape and irrigation plans. All landscaped areas shall be maintained in a healthy and growing condition in accordance with the NBMC and shall receive regular pruning, fertilizing, mowing and trimming. All landscaped areas shall be kept free of weeds and debris. All irrigation systems shall be kept operable, including adjustments, replacements, repairs, and cleaning as part of regular maintenance. 10. Landscape planting and irrigation plans and specifications shall be submitted by the applicant for review and approval by the Planning Division prior to the issuance of a building permit. b. Irrigation Guidelines An irrigation system shall be installed and shall incorporate appropriate locations, numbers, and types of water distribution and emitters to provide appropriate amounts of water to all plant materials. Application rates and spray patterns shall be consistent with the varying watering requirement of different plant groupings. Irrigation systems and controls shall include technology that minimizes over watering by either: (a) directly measuring soil moisture levels, plant types, and soil types and adjusting irrigation accordingly, or, (b) receiving weather information at least on a daily basis via satellite or similar transmission and adjusting irrigation accordingly. The irrigation system shall be designed to prevent over -watering and minimize overspray and runoff onto streets, sidewalks, driveways, buildings, fences, and window consistent with water conservation and pollution run-off control objectives. Should reclaimed water infrastructure be constructed along Newport Center Drive, the site's existing potable irrigation system shall be converted and connected to said infrastructure within one year of its availability. 2.9 LIGHTING All new outdoor lighting shall be designed, shielded, aimed, located and maintained to shield adjacent uses/properties and to not produce glare onto adjacent uses/properties. Lighting plans shall be prepared in compliance with Chapter 20.30.040 (Outdoor Lighting) of the NBMC. All lighting and lighting fixtures that are provided shall be maintained in accordance with the approved lighting plans. Light fixtures on buildings shall be full cut-off fixtures. Light spillover may not exceed one foot- candle at the subject property line. Lighting of building interior common areas, exteriors and parking entrances shall be developed in accordance with City Standards and shall be designed and maintained in a manner which minimizes impacts on adjacent land uses. Nighttime lighting shall be limited to that necessary for security. 3-60 Residences at Newport Center Planned Community Page 110 The plans for lighting shall be prepared and signed by a licensed electrical engineer and shall be subject to review and approval of the Community Development Director or their designee. If in the opinion of the Director existing illumination creates an unacceptable negative impact on surrounding land uses or sensitive habitat areas, the Director may order the dimming of light sources or other remediation upon finding that the site is excessively illuminated. 2.10 MECHANICAL EQUIPMENT Roof -top mechanical equipment shall not exceed 7 feet above the maximum height of the building and shall comply with Section 20.30.020 (Buffering and Screening) of the NBMC. All mechanical appurtenances on building roof tops and utility vaults shall be screened in a manner meeting the approval of the Director of Community Development or their designee. It is the intent to place the mechanical equipment in the garage, if feasible. If placement of mechanical equipment in the garage is not possible, then the standards articulated in this section shall be implemented. All new mechanical appurtenances (e.g., air conditioning, heating, ventilation ducts, exhaust vents, telecom antennas & support equipment, swimming pool and spa pumps, filters, transformers, utility vaults, and emergency power generators) shall be screened from the public view and adjacent land uses. The enclosure design shall be approved by the Community Development Department. All rooftop equipment shall be architecturally treated or screened from off- site views in a manner compatible with the building materials prior to final building permit clearance. The mechanical equipment shall be subject to sound rating in accordance with the Chapter 20.30.20 (Bufferiniz and Screening,) of the NBMC. There shall be a garage exhaust tower that is 10 feet above finished grade in the buildable area along Anacapa Drive, 2.11 OPEN SPACE a. Common Outdoor Space Common outdoor space consists of land area within the residential development that is not individually owned or dedicated for public use that is designed, intended, and reserved exclusively for the shared enjoyment or use by all residents and their guests. Common outdoor space may be active or passive. Illustrative examples include areas of scenic or natural beauty, barbecue areas, landscaped areas, play areas, swimming pools, pet areas, or turf areas. A minimum of 5% of lot area (2,750 square feet for 28 dwelling units) of common open space shall be provided. Common outdoor space shall be provided either at grade, podium level, or roof level. Common outdoor space areas shall have a minimum dimension of 15 feet. A minimum of 10 percent of the common outdoor space must be landscaped. All common outdoor space must be accessible to all residents. b. Common Indoor Space 3-61 Residences at Newport Center Planned Community Page 111 The building shall provide at least one community room of at least 500 square feet available for use by all residents of the project. The area should be located adjacent to, and accessible from, common/public space. This area may contain active or passive recreational facilities or meeting space and must be accessible through a common/public area. c. Private Open Space Private open space shall be a minimum of 30 square feet per dwelling unit (6 -foot by 5 -foot minimum). At least 50 percent of all dwelling units shall provide private open space, on a balcony, patio, or roof terrace. Balconies should be proportionately distributed throughout the project in relationship to floor levels and sizes of units. Qualifying private open space areas shall be permanently open on one full side or substantially open on multiple sides. Private open space consists of an outdoor or unenclosed area directly adjoining and accessible to a dwelling unit, reserved for the exclusive private enjoyment and use of residents of the dwelling unit and their guests (e.g., balcony, deck, porch, terrace, etc.). Boundaries are evident by use of fences, gates, hedges, walls, or other similar methods of controlling access and maintaining privacy. 2.12 PARKING Parking to the project shall be underground and not visible from the public right-of-way and surrounding area. Parking spaces, driveways, maneuvering aisles, and turnaround areas shall be kept free of dust, graffiti, and litter. All components of the parking area including striping, paving, wheel stops, walls, and lighting of the parking area shall be permanently maintained in good working condition. Access, location, parking space and lot dimensions, and parking area improvements shall be in compliance with parking standards of Title 20 of the NBMC. All required parking shall be provided on-site. There shall be a gated entry into the lower level for the resident owner with an electronic entry key. The main driveway entry shall be approximately 27 feet wide in front of the lobby entrance. The lobby shall have a concierge to provide services to residences such as U.S mail delivery, package delivery, mailing, receiving food delivery and meeting guests. There shall be optional valet services for the guests. Guest shall have the option to self -park . The guests parking spaces are accessed by the valet by a one-way internal ramp at the south end of the driveway and the parking spaces are at the first lower level. Valet service shall return the vehicles to the front entry via the main entry on Anacapa if the guests did not self -park. The rules and regulations of these operations shall be established by the Home Owners Association. A minimum of two (2) enclosed private parking spaces shall be provided for each of the dwelling units on Level 1. The units on Level 2 through 4 shall have a minimum of two (2) enclosed parking spaces per unit. One half (1/2) guest parking space shall be provided per unit for a total of 14 guest parking spaces including 1 ADA stall. Each two -car garage shall provide minimum clear interior 3-62 Residences at Newport Center Planned Community Page 112 dimensions of 17 feet 6 inches in width by 19 feet in depth and shall be maintained so that it is accessible to vehicles. Guest parking spaces shall maintain a minimum width of 8 feet 6 inches in width by 17 feet in depth. There shall be 10 employee spaces on the lower level of the garage. The total visitor and employee parking shall be 24 stalls. There shall be 4 guest charging stations for electric vehicles. All resident and guest parking spaces shall be maintained clear of obstructions and available for parking of vehicles at all times. Vehicle parking and maneuvering areas shall be restricted to the operation, maneuvering and parking of operable vehicles. 2.13 SIGNS If three (3) or more signs are proposed for the development, a comprehensive sign program application for the Residences at Newport Center shall be submitted for review and approval by the Zoning Administrator. Sign allowance and standards will be in accordance with Chapter 20.42 (Sign Standards) of the NBMC. 2.14 FENCES, HEDGES, AND WALLS Walls and hedges shall be in accordance with the NBMC except as shown on the Site Development Review plans and described in the PC. This does not apply to exempt signs per the NBMC. Where a nonresidential zoning abuts a residential zoning district, consideration of a Iandscape buffer as mitigation for wall heights, shall be reviewed as part of the Site Development Review. a. Podium Walls The subject property is a sloping site with an elevation change of approximately I 1 feet from the northeast corner to the southwest corner. Specifically, the northeast corner is at an elevation of approximately 170 feet and the southwest corner is at an elevation of 159 feet (all elevations reference NAVD88). Further, the site on the north property line drops from the northeast corner of 170 feet to 164 feet at the northwest corner. The project is designed for two levels of parking below grade. Level B-1 is partially at grade on the southern edge to allow access from the private driveway, and Level 2 is below grade. The entire project has a podium that incorporates the parking garage and the residential units are built on the podium deck. The podium lower level has a floor elevation of 148 feet and rises to a ceiling height of 169 feet 6 inches for most of the building. The ceiling height below Flat 1 and 2 is 2 feet 6 inches higher than the 169 feet 6 inch referenced above to accommodate the entry for trucks and vans on the south end of the building. The walls, floor and ceiling heights define the podium. 3-63 Residences at Newport Center Planned Community Page � 13 The podium walls on the southwest of the building are exposed from elevation 159 up to 173 feet at Flats 1 and 2. The top of wall is 13.8 feet above the adjacent ground elevation of 159 feet. There is a 42 -inch glass railing above the podium. On the western property line there is enhanced landscaping to mitigate the exposed podium wall. The sections shown in Exhibit D graphically illustrate the elevation changes. b. Patio Walls The patios on the north of the complex may encroach into the setback area up to 7'6"feet. The top of wall elevations on the patios on the north side may reach 176.5 feet (NAVD88) for Flats 6 through 8. The grading plan includes raising the grade in front of the patio walls by approximately 1 to 2 feet. Further, there shall be enhanced landscaping in front of the patio walls to buffer the view of patio walls from the streetscape. 2.17 TRASH SERVICE Trash disposal service will be provided by CR&R (or other provider) as contracted by the City of Newport Beach and shall be subject to applicable regulations, permits and fees as prescribed by the city. Trash container storage and bins shall be located within the lower level parking structure in an area to be designed and engineered for odor control and accessible for pick-up. Common trash bins provided shall be a minimum of 192 square feet for Trash and Recycling in accordance with Chapter 20.34.120 (Solid Waste and Recyclable Materials) of the NBMC. The bins will be brought by a scout truck from their regular storage areas in the basement to the southerly residential access drive for pick-up by regular trash trucks. Trash pick-up and staging shall not block vehicular access through the southerly access drive. Trash pick-up and loading is not permitted within the Anacapa Drive right-of-way. 2.18 CONSTRUCTION REQUIREMENTS a. Archaeological/Paleontological Grading of the site is subject to the provisions of the City Council policies K-4 & K-5 regarding archaeological and paleontological resources. b. Building Codes Construction shall comply with applicable provisions of the California Building Code and the various other mechanical, electrical, and plumbing codes related thereto as adopted by the NBMC. c. Grading 3-64 Residences at Newport Center Planned Community Page 114 Grading and excavation of the development area shall be conducted and undertaken in a manner both consistent with grading manual standards and ordinances of the City of Newport Beach and in accordance with a grading and excavation plan approved by the City of Newport Beach Building Division. d. Telephone, Gas and Electrical Service All "on-site" gas lines, electrical lines and telephone lines shall be placed underground. Transformer or terminal equipment shall be visually screened from view from streets and adjacent properties. e. Sewage Service All sewer lines shall be designed in accordance with the Utilities Manager approval. f. Storm Water Managemen The project shall adhere to the Water Quality Management Plan (WQMP) approved in conjunction with the issuance of building permits. Drainage and water quality assurance measures will be implemented as per the City Public Works and Municipal Separate Storm Sewer System (MS4) requirements. Development of the property will be undertaken in accordance with the flood protection policies of the City. g. Water service Water service to the site will be provided by the City of Newport Beach and is subject to applicable regulations, permits and fees as prescribed by the City. The project shall provide the infrastructure for Fire Protection Water Service and Domestic water. Each water meter shall be served and installed in accordance with the Public Works Department approval. 3-65 Residences at Newport Center Planned Community Page 115 3.0 SITE DEVELOPMENT REVIEW 3.1 PURPOSE The purpose of the Site Development Review (SDR) process is to ensure new development within the Newport Center Residences Planned Community Development is consistent with the goals and policies of the General Plan, and provisions of the Planned Community Development Plan, 3.2 APPLICATION Prior to the issuance of building permits for the original site development, a SDR application shall be required for the Newport Center Residences Planned Community Development in accordance with Section 20.52.080 (Site Development Reviews) of the NBMC. 3.3 DESIGN (ELEVATIONS) AND SITE DEVELOPMENT OF BUILDING The SDR shall be part of this PC and shall be reviewed concurrently with the PC. The submitted site plans and elevations shall be part of this application. 3-66 PROJECT SUMMARY PROJECT SUMMARY MULTI -STORY PROJECT PROJECT DESCRIPTION THE PROJECT CONSISTS OF (1) MULTI -STORY RESIDENTIAL BUILDING 4 STORIES OF RESIDENTIAL 2 LEVELS OF UNDERGROUND PARKING 28 DWELLING UNITS BUILDING CODE : CALIFORNIA BUILDING CODE 2019 OCCUPANCY GROUP: R-2 (RESIDENTIAL) & S-2 (PARKING) BUILDING TYPE OF CONSTRUCTION: TYPE I OR TYPE 2 (FULLY SPRINKLERED) GOVERNING AGENCY: CITY OF NEWPORT BEACH LOT COVERAGE: LOTAREA 54,949 S.F. BUILDING FOOTPRINT (FIRST FLOOR) 27,006 S.F. FAR 1.88 LOT COVERAGE (EXISTING) 55% EXISTING PLANNING DEPARTMENT GROSS AREA: 1 ST FLOOR AREA: +/- 27,006 S.F. 2ND FLOOR AREA: +!- 26,551 S.F. 3RD FLOOR AREA: +/- 25,564 S.F. 4TH FLOOR AREA: +!- 24,037 S.F. GROSS FLOOR AREA +!- 103,15B S.F. ADDITIONAL AREAS: NEWPORT CENTER DR. PARKING BASEMENT UPPER AREA: +/- 37,674 S.F. PARKING BASEMENT LOWER AREA: +/- 33,782 S.F. TOTAL PARKING GARAGE AREA: +a 71,456 S.F. PARKING: 0/10' REQUIRED RESIDENTIAL (2 PER UNIT) 56 STALLS GUEST (.5 PER UNIT) 14 STALLS PROVIDED RESIDENTIAL 57 STALLS GUEST (INC. ACCESSIBLE & 3 VALET) 26 STALLS 4/15/2021 SETBACKS' REQUIRED ! PROVIDED (FT) ABOVE PODIUM BELOW PODIUM ANACAPA FRONTAGE 15'/ 26' 0 / 15' NEWPORT CENTER DR. 15'/ 15' 0/15, WESTERN PRTY LINE 0/19' 0 /7' SOUTHERN PRTY LINE 0/19, 0/10' NOTE: SETBACKS DO NOT INCLUDE ARCHITECTURAL PROJECTIONS OPEN SPACE: See A20.1 and A20.2 REQUIRED COMMON OUTDOOR 5% of GROSS LOT 2,750 S.F. OPEN SPACE AREA +!- 3,600 S.F. PRIVATE OPEN SPACE 30 SF PER EACH UNIT 840 S.F. TOTAL REQUIRED 3,590 S.F. PROVIDED COMMON OUTDOOR OPEN SPACE +!- 3,600 S.F. PRIVATE OPEN SPACE +/- 12,230 S.F. TOTAL PROVIDED +/- 15,830 S.F. RESIDENTIAL UNITS: RESIDENTIAL UNITS GROSS AREA' (FLOOR 1-4) : +1- 85,236 S.F. 'NOTE: DOES NOT INCLUDE SHARED CIRCULATION NOTES EXHIBIT - page 1 of 2 3-67 4 I I I I I ------------ - ANACAPA DRIVE CONCEPTUAL SITE PLAN EXHIBIT A - page 2 o12 r.Y.anw�bA s�....n..,rs.m n� . �.•na a....rcl EW., xxu rvmi NEWPORT CENTER DRIVE LEGEND I BUILDING o x Q� Q OUTLINE ABOVE fif } PODIUM LEVEL � m o — — — — — LIMIT OF m Lu Lu o R/W cn o GARAGE LEVELS mew < as �— — UNDERGROUND PARKING GARAGE FOOTPRINT (SHOWN RED ON ORIGINAL DOCUMENT) l `4 PL 1 i O' SETBACK REQUIRED AT PL l 1 N SCALE: 1" = 50' FUSCOE E NG I N E E R I N G 16795 Von Karman, Suite 100, Irvine, California 92606 Ni 949.474.1960 o f- 949.474.5315 o w fuscoe_com PA E i DECK (TYP) } y i 111 a R/W 10 ,l EXHIBIT B BUILDING SETBACK EXHIBIT rn 15' REQUIRED BLDG SE�BACK PODIUM ABOVE p REQ Gft pE BELOW .,UNDERGROUND PARKING GARAGE FOOTPRINT (SHOWN RED ON ORIGINAL I DOCUMENT) 03/30/21 3-69 Building Tabulation 9/2/2020 RESIDENTIAL AREA 1 PLANNING AREAS (gross sf') Unit # I Level; Area (gross sf`) first floor residential 15,903 1 i 1 2,271 first floor circulation / misc 1 5585 ! 2 i 1 1,430 ` offices 602: 1 3 1 2,043: storage 441 4 1 " 1,478: entry 489 5 1 2,121 . lounge 1100: 6 1 2,228. concierge 691 7 1 `: 1,647 condo meeting & kitchen 999 8 1 2,685 fitness 1196 : 9 2 2,832.first floor total 27,006 10 ' 21 3,789: . 11 21 2,963 second floor residential 24,284 12 2 2,493 1 second floor circulation / misc 2267 131 2 2,521: second floor total 26,551 14! 21 2,954. 15 I 2 i 3,766 16 2 2,966 : —_ 17 31 2,649 third floor residential 23,239 183 3,646 third floor circulation /misc 2325 -- - 19 3 , 2,866. third floor total 25,564 '—� 20 3 ------- 2,316 - — - --- 21 3 2,344. i I 2,955. fourth floor residential 21,810. I i 23 i 31 3,667 fourth floor circulation / misc ; 2227 241 3 2,796 fourth floor total i 24,037 �— - 25 4 5,636: 26 , 4 5,223! 27 4 5,262', TOTAL GROSS PLANNING AREAS 103,158 _...._ 28 4 5,689 -- Total Residential Units 85,236 j Additional Areas - Parking 1 37 674 Circulation,Lobbies, Gross planning area 103,158 - .. . -- — 9 1 Parking 2 33,782 ' I NOTE All areas are shown as gross numbers(including exterior walls & finishes). j Condo units are sold as interior airspace and would be smaller area. EXHIBIT C 3-70 .lay. d tils ewnhi9h.rttn Icxvn EXHIBIT 0 3-71 b i1`r -- _ a. RelSnor-c Flo Q7 Fle126 1 I Rat 25Vi e a Re123 ir.,P F$n 21 Ana Ret 20 I *- Re118 Hitt 15 1311-110 eRet f! Aa1 g N81esa9h,g4" .x h"2%1 e.mm IV b t2 Flot ,� 7 5' deettt.eu1.m9m91.e.6er7/t .- ZLAZg _ __ _____________ _`_ Perkiny6an _ —___ _ J_ ivMxMaN'pwa1�B,vs 13— _ aap s .lay. d tils ewnhi9h.rttn Icxvn EXHIBIT 0 3-71