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HomeMy WebLinkAbout23 - Development Agreement No. 5TO: FROM SUBJECT: LOCATION ZONE: APPLICANT: OWNER: Application City Council Meeting January 24, 1994 Agenda Item No. 23 CITY OF NEWPORT BEACH Mayor and Members of the City Council Planning Department W Development Agreement No. 5 EiY Ti-tE CIlY�C.)i.��l_ CITY OF NEVV '0-J JAN 2 4 Request to approve an amendment to Development Agreement No. 5 for the Hoag Hospital Master Plan between the City of Newport Beach and Hoag Memorial Hospital Presbyterian. Lower Campus: A portion of Lot 172, Block 1, Irvine's Subdivision, located at 4000 West Coast Highway, on the northerly side of West Coast Highway, between Newport Boulevard and Superior Avenue. Upper Campus: Parcel No. 1 of Record of Survey 15-30, located at 301 Newport Boulevard, on the southwesterly corner of Hospital Road and Newport Boulevard. P -C (Planned Community) Hoag Memorial Hospital Presbyterian, Newport Beach Same as Applicant If approved, the application requested will amend certain provisions of the approved Development Agreement No. 5 for tk&, Hoag Hospital Master Plan. The proposed changes have been requested by the staff of the Califarnia Coastal Commission to clarify its role in the review and approval of buildings constructed throughout the duration of the Master Plan, and to incorporate certain conditions of approval and mitigation measures into the text of the Development Agreement. Development Agreement procedures are in Chapter 15.45 of the Newport Beach Municipal Code. Sunested Action Hold hearing; close hearing; if desired, introduce Ordinance No. 94- and pass to second reading on February 14, 1994. TO: May'. and Members of the City Council - 2. l Discussion This item was originally scheduled for public hearing on December 13, 1993. The hearing was continued to this meeting to allow Hoag Hospital to resolve the language of certain requested changes to the Development Agreement with Coastal Commission staff. Those changes to the Development Agreement have been worked out to the satisfaction of the Coastal Commission staff, Hoag Hospital staff, and City staff. These changes are being processed despite the recommendation of denial of the project by the Coastal Commission staff. Should the Coastal Commission overrule the staff and approve the project, these changes are necessary to allow the commission to take that action without continuing the proposal to a subsequent hearing date. The additional changes to the development agreement further clarify the role of the Coastal Commission in the review and approval of subsequent buildings associated with the Master Plan on the lower campus, makes the wetlands mitigation monitoring program consistent with that required by the Department of Fish and Game in the Streambed Modification Permit, and defines the timing of park dedication and development. From the City's standpoint, the additional language is of no concern, except for the proposed revisions to Section 8.2(a) regarding the timing of the park improvements. In the original approval, the Hospital was required to establish the park site through grading and dedicate it to the City, but was not required to improve the park. This language will require the City to accept the dedication of the park within 60 days of the finalling of the initial grading permit, and also requires that the park improvements be completed within (two, three) years of the dedication. This will require the City to give the park development project budgetary priority. Generally, the City programs funds to develop dedicated park land quickly. The City does not let dedicated land lie vacant for significant periods of time, so it is very likely that the City would improve the park as soon as possible. The Coastal Commission staff, however, believes it is critically important that the completion of park improvements be assured in the very early stages of development. Since the project includes the redesignation of the entire lower campus site from an open space category to an institutional category, it is the opinion of staff that the requested change is reasonable. The language has been structured in such a way that if the City is financially unable to complete the improvements, an agreement could be negotiated with Hoag Hospital which could provide for early construction. Respectfully submitted, PLANNING DEPARTMENT JAMES D. HEWICKER, Director PQ PJI/ , /V )P� I Oiml� By Patricia L. Temple Advance Planning Manager PLT:..1W IN W ORD\DAS-SR4.DOC Attachments: 1. Council Staff Report dated December 13, 1993 2. Draft Ordinance with Development Agreement TO: FV-'XiVA SUBJECT: City Council Meeting December 13, 1993 Agenda Item No. CITY OF NEWPORT BEACH Mayor and Members of the City Council Planning Department 6A -- Development Agreement No. 5 27 Request to approve an amendment to Development Agreement No. 5 for the Hoag Hospital Master Plan between the City of Newport Beach and Hoag Memorial Hospital Presbyterian. LOCATION: Lower Campus: A portion of Lot 172, Block 1, Irvine's Subdivision, located at 4000 West Coast Highway, on the northerly side of West Coast Highway, between Newport boulevard and Superior Avenue. Upper Campus: Parcel No. 1 of Record of Survey 15-30, located at 301 Newport Boulevard, on the southwesterly corner of Hospital Road and Newport Boulevard. ZONE: P -C (Planned Community) APPLICANT: Hoag Memorial Hospital Presbyterian, Newport Beach OWNER: Same as Applicant Applications If approved, the application requested will amend certain provisions of the approved Development Agreement No. 5 for the Hoag Hospital Master Plan. The proposed changes have been requested by the staff of the California Coastal Commission to clarify for the Coastal Commission its role in the review and approval of buildings constructed throughout the duration of the master plan, and to incorporate certain conditions of approval and mitigation measures into the text of the Development Agreement. Development Agreement procedures are in Chapter 15.45 of the Newport Beach Municipal Code. Suggested Action Hold hearing; close hearing; if desired, introduce Ordinance No. 93- and pass to second reading on January 10, 1994. TO: May . and Members of the City Council - 2. Environmental Significance The original approval of the Hoag Hospital Master Plan was accompanied by the certification of an Environmental Impact Report. This proposal has been reviewed, and it has been determined that this project is within the scope of the original project description and approval, and that the previous document is adequate to serve as the environmental document for this request. Discussion Hoag Hospital and the City of Newport Beach have submitted all necessary applications and information to the California Coastal Commission for the review and approval of the Hoag Hospital Master Plan Development Agreement and a master coastal development permit. In reviewing the Development Agreement, the Coastal Commission staff has identified a number of necessary changes to the text of the agreement. These changes, which are set forth in the mi attached letter from the Coastal Comssion and proposed Development Agreement, will clarify the role of the Coastal Commission in the review and approval of subsequent buildings on the lower campus and will add into the text of the Development Agreement certain conditions of approval and mitigation measures adopted as part of the original approval. The text changes regarding the subsequent authorities of the Coastal Commission make explicit the requirements for Coastal Development Permits for building projects in the Coastal Zone. This is not a new requirement, but merely places into the Development Agreement text a reiteration of that statutory requirement. The Coastal staff is also requesting the addition of a section regarding certain specific areas of concern which may be addressed in the subsequent review of Coastal Development Permits. These are all areas for which the City has adopted conditions of approval or mitigation measures, so this will not add to the conditions previously imposed by the City. The issue areas of interest to the Coastal Commission are slope stability, grading impacts, seismicity and faulting, corrosive soils, wetlands impacts, view impacts, and the dedication of the view park. Staff has reviewed the proposed changes, and has no problems with the request. Respectfully submitted, PLANNING DEPARTMENT JAMES D. HEWICKER, Director By Patricia L. Temple Advance Planning Manager PLT:.A\N' INW0RD\DAS-SR 1.DOC Attachments: 1. Letter form California Coastal Commission 2. Revised Development Agreement 3. Draft Ordinance 111 STATE OF CALIFORNIA—THE RESOURCES AGENCY PETE WILSON, Governor CALIFORNIA COASTAL COMMISSION SOUTH COAST AREA 245 W. BROADWAY, STE. 380 P.O. BOX 1450 LONG BEACH, CA 90802.4416 590.5071 Patricia Temple Advance Planning Manager City of Newport Beach P.O. Box 1768 Newport Beach, CA 92659-1768 Dear Ms. Temple, November 11, 1993 0 Thank you for the opportunity to comment early on the Hoag Master Plan Development Agreement. Enclosed please find Commission staff's preliminary comments on the Agreement. Staff is still looking into the history and appropriateness of public parking on the Hoag site and there still remain the issue of development as an allowable use in the on-site wetlands. Additionally, please understand that staff's review of the Hoag Master Plan Development Agreement is on-going. Consequently, as analysis of the project continues, additional issues could arise that would require additional changes to the Development Agreement to bring it into conformity with the Coastal Act (the wetland and parking issues notwithstanding). As you know, when acting on Development Agreements, the Coastal Commission will either approve as submitted or deny the agreement. The modifications to the Development Agreement recommended by staff at this time represent readily identifiable changes which staff believes are required, at a minimum, for conformance with the Coastal Act. The proposed changes will help limit the possible number of changes necessary once the item is scheduled for Commission hearing. These are being submitted to you at this time to enable you to go before your City Council if you choose, prior to the Development Agreement being scheduled for Commission review. Any revised development agreement should be submitted by all parties to the agreement in writing. We appreciate the opportunity to comment at this stage of review as well as your cooperation in working on this project. Please do not hesitate to contact me with any questions regarding this matter. Sincerely, Meg Vaughn Staff Analyst enc. STATE OF CALIFORNIA—THE RESOURCES AGEK PETE WILSON, Gbwrwr CALIFORNIA COASTAL COMMISSION SOUTH COAST AREA 245 W. BROADWAY, STE. 380 Preliminary Comments ' P.O. BOX 1450 on LONG BEACH, CA 90802-4416 City of Newport Beach (310) 590-5071 a n d Hoag Hospital Development Agreement The following are Coastal Commission staff's preliminary comments on the proposed Newport Beach/Hoag Hospital Development Agreement. Strike -outs indicate items recommended for removal. Under -scoring indicates items recommended to be added. The Development Agreement must be signed by both parties. Section 1.1 (a) Enable Hoag to adapt to the ever changing health care needs of those residents within its service area by authorizing V609VOW60 design parameters of new or additional facilities in a manner that will allow Hoag to respond to rapid changes in medical and health care technology and delivery systems. Section 1.4 Development of the Property. This Agreement authorizes development on the Property consistent with the Hoag Memorial Hospital Presbyterian Master Plan and Planned Community Development Plan ("Master Plan", a copy of which is attached to this Agreement as Exhibit "C" and incorporated by reference when appropriate), subject to the conditions and mitigation measures identified in Environmental Impact Report No. 142 and imposed by the City Council as conditions to approval of the Master Plan and this Agreement and, for all development within the coastal zone subject to approval of a coastal development permit by the California Coastal Commission or its successor agency. Add Section 2.55: Section 2.55 "California Coastal Commission" refers to the Resources agency established under the Califo 1976. Section 2.12 The "Effective Date" refers to the effective date of the Adopting Ordinance and is the effective date of this Agreement provided however, the Agreement has been approved by the California Coastal Commission, and the Executive Director of the Coastal Commission is in receipt of a copy of this Agreement signed by both parties. Section 2.29 "Project Specific Approvals" means all site-specific (meaning specifically applicable to the Property only and not generally applicable to some or all other properties within the City) plans, subdivision maps, permits, or other entitlements. Project Specific Approvals include subdivision maps, site plan review, conditional use permits, coastal development permits. variances, grading and building permits, as well as amendments or modifications to these plans, maps and permits. Project Specified Approvals does not include Existing or Future General Regulations. I �/lO n/ Devlopment Agreement Comments Page 2 Section 3.2 Hoag's right to develop the Property pursuant to the Master Plan is contingent upon compliance with, and satisfaction of, the conditions and mitigation measures imposed by the City Council as of the Approval Date, conditions imposed by the California Coastal Commission required for approval of coastal development permits, as well as conditions and mitigation measures resulting from subsequent environmental analysis as specified in Paragraph 3.3. Add Section 3.25: Section 3.25 Future Coastal Act discretionary review may result in specific mitigation measures that require compliance with, or satisfaction of, standards before grading or construction can occur. At a minimum those measures shall include: (a) Evidence that slope excavation techniques will insure stability: certified geologists in a manner which insures that nearby residents, Hoag patients and Hoag employees are not exposed to a significant risk of injury; soils soil corrosivity and removal ,truction materials; (e) Mitigation of impacts cause by removal of on-site wetlands through implementation of off-site restoration as required by resource agencies including the United States Fish and Wildlife Service and the California Department of Fish and Game pursuant to the wetlands mitigation plan more specifically described in Section 8.2 (b). Preparation of a view impact analysis of each proposed building prior to issuance of permits; LqJ Dedication of linear and consolidated public view park identified in figure 3.2.1 of Volume I of the EIR, 1.0 total acre. Section 3.3 Program EIR. Hoag acknowledges that the EIR is a "Program EIR." The EIR analyzes the impacts of construction phased over time and, pursuant to CEQA, City is under a continuing obligation to analyze Hoag's requests for Project Specific Approvals to ensure the environmental impacts associated with the request were fully addressed in the EIR. Subsequent environmental documentation is required if this analysis reveals ' environmental impacts not fully addressed in the program EIR, ` r- Devlopment Agreement Comments Page 3 C, identifies new impacts, or concludes the specific request is not consistent with the project described in the EIR. Hoag acknowledges the right and obligation of the City and the Coastal Commission or its successor agency to impose additional conditions as the result of the subsequent environmental analysis required by CEQA. Section 3.4 Mitigation Monitoring Plan. City shall prepare a Mitigation Monitoring Plan ("Plan") within sixty (60) days after the Effective Date. Hoag shall not submit any application for Project Specific Approval until the Plan has been approved by the City Council and the Executive Director of the Coastal Commission or the appropriate entity of its successor agency. The Plan shall comply with and satisfy the requirements of CEQA and the Guidelines and the Coastal Act. The Plan shall be available to the public upon request. Section 3.5 Compliance with General Regulations. Hoag is required to comply with the Existing General Regulations. As to those Existing General Regulations which require the payment of fees, costs, and expenses, Hoag shall pay the fee, cost, or expense required as of the date on which Hoag submits the application required as of the date on which Hoag submits the application for Project Specific Approval. Hoag shall also comply with any Future General Regulations that do not impair Hoag's ability to develop the Property in accordance with the density, intensity, height and location of development specified in the Master Plan. Hoag shall also comply with all provisions of the Uniform Building Code, whether adopted before or after the Approval Date, which are in effect at the time applications for Project Specific Approvals are submitted. Hoag shall also comply with the Coastal Act and the City's certified Local Coastal Program. Section 5.4 Mitigation Review. The annual review shall include a detailed report of compliance with the various conditions and mitigation measures contained within the mitigation monitoring plan. The report shall include an analysis of the view impacts of the buildings constructed in comparison to the anticipated views as depicted in the EIR. The annual review shall also assess the success of any off—site wetlands mitigation. Hoag shall be found in compliance with this Agreement unless the City Council determines, based upon the evidence presented at the Annual Review, that Hoag has not complied with all mitigation measures and conditions including those imposed as a result of subsequent environmental analysis, applicable to the grading of, or building on, the Property as of the date of the Annual Review. Section 6.3 Term of Agreement. The term of this Agreement (the "Term") shall begin on the Effective Date and continue for twenty—five (25) years unless otherwise terminated or modified pursuant this Agreement. Any modificatins to this Agreement are subject to the review and approval of the Coastal Commission or its successor agency. Devlopment Agreement Comments Page 4 Section 6.5 (a) Subject to the provisions of Subsection (b), and subject to approval of the Coastal Commission or its successor agency, this Agreement may be amended from time to time by the mutual consent of the Parties, or their successors in interest, but only in the manner provided by the Government Code and this Agreement. After any amendment, the term "Agreement" shall refer to the amended Agreement. Section 7.1 (c) word(s) appear to be missing. Add Section 7.1 (g) Any modifications are subject to approval of the Coastal Commission or its successor agency. Section 8.2 (a) Prior to commencement of development, irrevocably offer to dedicate the proposed linear and consolidated view park identified in Figure 3.2.1 if Volume I of the EIR. The first stage of development shall include grading of the public linear and consolidated viewpark identified in Figure 3.2.1 of Volume I of the EIR. Hoag shall grade and excavate the slope adjacent to the proposed .28 (28/100) acre consolidated view park and .52 (52/100) acre public linear view park in a way that ensures stability of the park and adjacent slopes. The grade (between the bicycle path and edge of slope) of the view parks shall be the minimum necessary to insure adequate drainage. The improvements for the linear and consolidated public parks shall be completed prior to coastal development applications for construction of any structure identified for the lower campus in the Master Plan. Section 8.2 (c) City and Hoag shall conduct a study of possible future improvements in and around the easterly end of Semeniuk Slough that would, among other things, improve the appearance of the area . . . Section 8.2 (d) Hoag's obligations pursuant to Subsection (c) are contingent on Coastal Commission approval of the Master Plan XOd attached as Exhibit C to this Agreement with no significant reduction in entitlement from that authorized in the Master Plan. Hoag's obligations pursuant to Subsection (b) shall be reduced through good faith negotiations in the event the Coastal Commission reduces entitlement by ten percent (10%) or more from that authorized in the Master Plan. a Devlopment Agreement Comments Page 5 Section 10.1 Discretion to Encumber. Hoag may encumber all or any portion of the Property in any manner. The City acknowledges that lenders providing financing may require technical modifications to the Agreement which do no materially alter the intent of the Parties. The City agrees to meet, upon request, with Hoag and/or lenders to negotiate in good faith any lender request for modification. The City agrees to not withhold unreasonably its consent to such modification. Any such modification is subiect to the review and approval of the Executive Director of the Coastal Commission or its successor agency. Section 11.3 Severability. If any material part of the Agreement is found by a court to be invalid, void, or illegal, the Parties shall modify the Agreement to implement the original intent of the Parties. These steps may include the waiver by either of the Parties of their right under the unenforceable provision. If, however, the Agreement objectively cannot be modified to implement the original intent of the Parties and the Party substantially benefitted by the material provision does not waive its rights under the unenforceable provision, the entire Agreement shall become void. For purposes of this Section, and without excluding the possible materiality of other provisions of this Agreement, all provisions of Sections 3, 4 and 8 are deemed "material." Section 11.5 Waivers. All waivers of the provisions of this Agreement must be in writing and signed by the Party making the waiver and are subject to approval of the Coastal Commission or its successor agency. 0505F 210 Recording Requested By and When Recorded Return to: "ity Clerk ity of Newport Beach ,300 Newport Boulevard P.O. Box 1768 Newport Beach, CA 92659-1768 DEVELOPMENT AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND HOAG MEMORIAL HOSPITAL PRESBYTERIAN Approved Ordinance No. 4 // i� DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT (the "Agreement") is entered into between th(r City of Newport Beach (the "City"), and Hoag Memorial Hospital Presbyterial. ("Hoag"). 1. RECITALS. This Agreement relates to the following: 1.1 Purpose of Aareement. This Agreement is intended to: (a) Enable Hoag to adapt to the ever changing health care needs of those residents within its service area by authorizing eenstruetien design parameters of new or additional facilities in a manner that will allow Hoag to respond to rapid changes in medical and health care technology and delivery systems. (b) Establish strict, binding limits on the amount and height of permitted development as well as ensure compliance with numerous conditions on the density, location, and timing of construction to minimize, to the extent feasible, any environmental impacts of Hoag's proposed expansion. (c) Impose exactions such as dedication of property, construction of public improvements and/or the installation of landscaping visible to the public, which, when considered in conjunction with the public services provided by Hoag, benefit the general public. 1.2 Authorization. This Agreement is authorized by, and is consistent with, the provisions of 65864 et seq. of the Government Code of the State of California, and Chapter 15.45 of the Newport Beach Municipal Code. 1.3 Interest of Hoag. Hoag is the legal and/or equitable owner of approximately forty (40) acres of real property located in the City and more particularly described in Exhibit "A" and depicted in Exhibit "B" (the "Property"). 1.4 Development of the Property. This Agreement authorizes development on the Property consistent with the Hoag Memorial Hospital Presbyterian Master Plan and Planned Community Development Plan ("Master Plan", a copy of which is attached t this Agreement as Exhibit "C" and incorporated by referenci, when appropriate), subject to the conditions and mitigation measures identified in Environmental Impact Report No. 142 and imposed by the City Council as conditions to approval of the Master Plan and this Agreement and for all development within 1 2. the coastal zone subiect to approval of a coastal development permit by the California Coastal Commission or its successor agency. 1.5 Planning Commission/City Council Hearings. The Planning Commission, after giving appropriate notice, held public hearings to consider a development agreement, the proposed Master Plan, and the EIR on December 5, 1991, January 9, 1992, January 23, 1992, February 6, 1992, and February 20, 1992. The City Council conducted public hearings on the Master Plan, this Agreement and the EIR on March 23, 1992, March 30, 1992, April 13, 1992 and May 11, 1992. 1.6 Consistency. This Agreement is consistent with the various elements of the Newport Beach General Plan, the Master Plan, and other applicable ordinances, plans, and policies of the City. This Agreement is also consistent with the purpose and intent of state and local laws authorizing development agreements in that it represents comprehensive planning, provides certainty in the approval of subsequent projects subject to compliance with conditions, reduces the economic costs of development by providing assurance to Hoag that it may generally proceed with projects in accordance with existing regulations, and provides assurance to adjoining property owners that limits on the height of structures and amount of development as specified in the Master Plan and this Agreement will remain in full force and effect for a period of twenty- five (25) years. 1.7 Police Power. The City Council has determined that this Agreement is in the best interests of the health, safety and general welfare of the City, its residents and the public, was entered into pursuant to, and represents a valid exercise of, the City's police power, and has been approved in accordance with the provisions of state and local law that establish procedures for the approval of development agreements. 1.8 City ordinance. On May 26, 1992, the City Council adopted Ordinance No. 92-4 approving this Agreement and authorizing the City to enter into this Agreement. The Adopting Ordinance will become effective on June 26, 1992. DEFINITIONS. 2.1 The "Adopting Ordinance" refers to City Ordinance No. 92-4, adopted on May 26, 1992 by the City Council, which approved and authorized the City to enter into this Agreement. 2.2 "Agreement" refers to this "Development Agreement Between the City of Newport Beach and Hoag Memorial Hospital Presbyterian". K 2.3 "Annual Review" refers to the review of Hoag's good faith compliance with this Agreement and conditions on development as set forth in Section 5. 2.4 The "Approval Date" means the date on which the City Counci'! voted to adopt the Adopting Ordinance. 2.5 All forms of use of the verb "assign" and the nouns "assignment" and "assignee" shall include all contexts of hypothecations, sales, conveyances, transfers, leases, and assignments. 2.55 "California Coastal Commission" refers to the California State Resources Agency established under the California Coastal Act of 1976. 2.6 "CE)A" and the "CEPA Guidelines" refers to the California Environmental Quality Act and the CEQA Guidelines promulgated by the Secretary of Resources of the State of California, including any amendments adopted subsequent to the Effective Date. 2.7 "City" refers to the City of Newport Beach, California. 2.8 "City Council" refers to the City Council of the City. 2.9 "Cure Period" refers to the period of time during which a, Default may be cured pursuant to Section 9. 2.10 A "day" or "days" refers to a calendar day, unless expressly stated to be a business day. 2.11 A "Default" refers to any material default, breach, or violation of the provisions of this Agreement. A "City Default" refers to a Default by the City, while a "Hoag Default" refers to a default by Hoag. 2.12 The "Effective Date" refers to the effective date of the Adopting Ordinance and is the effective date of this Agreement. - '- - -'- -'..a U.. a.1... the Coastal Commission is in receipt of a copy of this Agreement signed by both parties. 2.13 The "EIR" refers to final Environmental Impact Report No. 142 of the City of Newport Beach and Supplemental Environmental Impact Report No. 142. L 2.14 An "Estoppel Certificate" refers to the document certifying the status of this Agreement required by Section 5.6 in the form of Exhibit "D". 3 2.15 An "Exaction" refers to those specific dedications and improvements required of Hoag and set forth in Section 8.2 below. 2.16 An "Exhibit" refers to an exhibit to this Agreement. All Exhibits are incorporated as a substantive part of this Agreement. The Exhibits to this Agreement are: Exhibit A: Legal Description of the Property Exhibit B: Map of the Property Exhibit C: The Master Plan Exhibit D: Estoppel Certificate 2.17 "Existing General Regulations" means those General Regulations approved by the City on or before the Approval Date (irrespective of their effective date) and not rescinded or superseded by City action taken on or before the Approval Date. 2.18 "Future General Regulations" means those General Regulations ( see Section 2.19 below) adopted by the City after the Approval Date. 2.19 "General Regulations" means those ordinances, rules, regulations, policies, and guidelines of the City, which are generally applicable to the use of land and/or construction within the City and include, the Fair Share Traffic Contribution Fee Ordinance, Uniform Building Codes and water and sewer connection and fee ordinances. 2.20 "General Plan" refers to the City's General Plan in effect on the Approval Date, plus all amendments to the General Plan adopted by the City on or before the Approval Date and effective prior to the Effective Date. 2.21 "Hoag" refers to Hoag Memorial Hospital Presbyterian, a non- profit corporation. 2.22 "Includes" and all contexts and forms of the words "includes" and "including" shall be interpreted to also state "but not limited to." 2.23 "Master Plan" refers to the Hoag Memorial Hospital Presbyterian Master Plan and Planned Community Development Plan which was adopted by the City on May 26, 1992 (Exhibit "C"). 2.24 "Mortgagee" refers to the holder of a beneficial interest under any mortgage, deed of trust, sale-leaseback agreement, or other 4 ,.5- 3. transaction under which all or a portion of the Property, including those portions acquired by assignees, is used as security (a "Mortgage") or the owner of any interest in all or any portion of the Property under a Mortgage, including those portions acquired by assignees. 2.25 "Notice" refers to any written notice or demand between the Parties required or permitted by this Agreement. 2.26 The "Parties" refers to the City and Hoag and a "Party" shall refer to either of the Parties. 2.27 "Planning Commission" refers to the Planning Commission of the City. 2.28 The "Project" refers to the proposed development of the Property pursuant to the Master Plan and this Agreement. 2.29 "Project Specific Approvals" means all site-specific (meaning specifically applicable to the Property only and not generally applicable to some or all other properties within the City) plans, subdivision maps, permits, or other entitlement. Project Specific Approvals include subdivision maps, site plan review, conditional use permits, coastal development permits, variances, grading and building permits, as well as amendments or modifications to those plans, maps and permits. Projec , Specific Approvals does not include Existing or Future General Regulations. 2.30 The "Property" refers to the real property described on Exhibit "A" and depicted on Exhibit "B." CONDITIONS TO DEVELOPMENT. 3.1 Introduction. The provisions of this Section express the intent of the parties regarding the extent to which this Agreement vests Hoag's right to proceed with the development described in the Master Plan. Hoag acknowledges that its right to proceed with development described in the Master Plan is subject to numerous conditions and mitigation measures including the following: (a) The specific limitations and restrictions contained in the Master Plan; (b) Conditions and mitigation measures imposed by the City'`, Council to mitigate significant effects identified in the EIR; 5 (c) Conditions imposed by the City as a result of subsequent or supplemental environmental analysis pursuant to provisions of CEQA and the CEQA Guidelines; (d) Conditions imposed by the City Council in conjunction with the approval of Traffic Study No. 81 and Variance No. 1180; (e) Compliance with the terms and conditions specified in this Agreement. (f) Compliance with Existing General Regulations. 3.2 Compliance with Master Plan Conditions/Mitigation Measures. Hoag acknowledges that City Council approval of the Master Plan and this Agreement was subject to compliance with numerous conditions and mitigation measures designed to minimize or eliminate the significant adverse effects of the Project and ensure the health, safety, and welfare of nearby residents as well as Hoag patients and employees. Many of these conditions and mitigation measures impose specific development standards and requirements to be implemented in conjunction with further study and analysis of site or subsurface conditions before grading or construction. Specific mitigation measures that require compliance with, or satisfaction of, standards before grading or construction can occur include the following: (a) Slope excavation techniques which insure stability; (b) Grading and excavation techniques which minimize disturbance to adjacent residents and the general public; (c) Identification of potential faults on site and construction of buildings pursuant to recommendations of certified geologists and in a manner which insures that nearby residents, Hoag patients and Hoag employees are not exposed to a significant risk of injury; (d) Evaluation of soil corrosivity and removal of corrosive soils or use of corrosion resistant construction materials; (e) Mitigation of impacts caused by removal of wetlands through off-site restoration as required by resource agencies_; (f) Preparation and approval of a project trip generation study prior to development of Phase I of the Master Plan (if Hoag proposes a land use other than specified in the approved Traffic Study); 0 r-` (r-1 (g) Preparation and approval of a project trip generation study as a condition to construction of development in Phases II and III of the Master Plan; (h) Preparation and approval of a Traffic Phasing Ordinance analysis prior to construction of development in Phase II and Phase III of the Master Plan; (i) Preparation of a view impact analysis of each proposed building prior to issuance of permits; (j) Analysis and mitigation of emissions in accordance with the regulations of the South Coast Air Quality Management District; (k) Preparation and approval of a construction phasing and traffic control plan for each phase of development. Hoag's right to develop the Property pursuant to the Master Plan is contingent upon compliance with, and satisfaction of, the conditions and mitigation measures imposed by the City Council as of the Approval Date, conditions imposed by the California Coastal Commission required for approval of coastal development permits, as well as conditions and mitigation measures resulting from subsequent environmental analysis at specified in Paragraph 3.3. 3.25 Future Coastal Act discretionary review may result in specific mitigation measures that require compliance with, or satisfaction of standards before grading or construction can occur. At a minimum those measures shall include: (a) Evidence that slope excavation technictues will insure stability; (b Evidence that grading and excavation techniques will minimize disturbance to adjacent residents and the general public; c) Identification_ of potential faults on site and modification of development plans pursuant to recommendations of certified geologists in a manner which insures that nearby residents, Hoag patients and Hoag employees are not exposed to a significant risk of injury; [M" materials; 7 (e) Mitigation of impacts cause by removal of on-site wetlands through implementation of off-site restoration as required by resource agencies including the United States Fish and Wildlife Service and the California Department of Fish and Game pursuant to the wetlands mitigation plan more specifically described in Section 8.2 (b) . DEL Preparation of a view impact analysis of each proposed building prior to issuance of permits; M Dedication of linear and consolidated public view park identified in figure 3.2.1. of Volume I of the EIR, 1.0 total acre. 3.3 Program EIR. Hoag acknowledges that the EIR is a "Program EIR." The EIR analyzes the impacts of construction phased over time and, pursuant to CEQA, City is under a continuing obligation to analyze Hoag's requests for Project Specific Approvals to ensure the environmental impacts associated with the request were fully addressed in the EIR. Subsequent environmental documentation is required if this analysis reveals environmental impacts not fully addressed in the program EIR, identifies new impacts, or concludes the specific request is not consistent with the project described in the EIR. Hoag acknowledges the right and obligation of the City and the Coastal Commission or its successor agency to impose additional conditions as the result of the subsequent environmental analysis required by CEQA. 3.4 Mitigation Monitoring Plan. City shall prepare a Mitigation Monitoring Plan ("Plan") within sixty (60) days after the Effective Date. Hoag shall not submit any application for Project Specific Approval until the Plan has been approved by the City Council and the Executive Director of the Coastal Commission or the appropriate entity of its successor agency.. The Plan shall comply with and satisfy the requirements of CEQA and the Guidelines and the Coastal Act. The Plan shall be available to the public upon request. 3.5 Compliance with General Regulations. Hoag is required to comply with the Existing General Regulations. As to those Existing General Regulations which require the payment of fees, costs, and expenses, Hoag shall pay the fee, cost, or expense required as of the date on which Hoag submits the application for Project Specific Approval. Hoag shall also comply with any Future General Regulations that do not impair Hoag's ability to develop the Property in accordance with the density, intensity, height and location of development specified in the Master Plan. Hoag shall also comply with all provisions of the Uniform Building Code, whether adopted before or after the Approval Date, which are in effect at the time applications for 8 Project Specific Approvals are submitted. Hoag shall also comply with the Coastal Act and the City's certified Local Coastal Program. 4. RIGHT TO DEVELOPMENT. 4.1 Right to Develop. Subject to compliance with the provisions of Sections 3 and 8.2, Hoag shall have a vested right to develop and receive Project Specific Approvals for construction on the Property to the full extent permitted by the Master Plan. Subject to the provisions of Sections 3 and 8, City shall only take action which complies with and is consistent with the Master Plan and this Agreement unless Hoag otherwise consents in writing. Subject to this Subsection, City shall have the authority to impose only those Exactions which are specifically described in this Agreement, except as expressly required (as opposed to permitted) by state or federal law. 4.2 Reservations or Dedications of Land. Except as expressly provided in this Agreement, no dedications or reservations of the Property shall be required of Hoag in conjunction with the application or issuance of any Project Specific Approvals. 4.3 Conflicting Measures. Except as expressly provided in thin Agreement, no initiative measure, moratorium, referendum (except as provided in Government Code Section 65857.5), ordinance, statute or other provision of law which in any way limits or restricts development of the Property to the full extent permitted by the Master Plan and this Agreement (including density, intensity, timing, phasing, and sequencing) shall be applied to the Property during the term of this Agreement. 4.4 Time for Construction and Completion of Project. Subject to the provisions of this Agreement and the Master Plan, Hoag shall have the right to decide the timing, phasing, and sequencing of construction on the Property and shall be entitled to apply for, and receive approval of, in a timely manner, permits or approvals at any time. 5. ANNUAL REVIEW. 5.1 City and Hoag Responsibilities. At least every twelve (12)� months during the Term, the City shall review Hoag's good faith substantial compliance with this Agreement (the "Annual Review"). After the Annual Review, the City's finding of good faith compliance by Hoag shall be conclusive for the purposes 7 of future Annual Reviews or legal action between the Parties. Either Party may address any requirements of the Agreement during the Annual Review. However, fifteen (15) days' written Notice of any requirement to be addressed shall be made by the requesting Party. If, at the time of the review, an issue not previously identified in writing is required to be addressed, the review shall be continued at the request of either Party to afford sufficient time for analysis and preparation of a response. 5.2 Public Hearing. The Annual Review shall be conducted at a public hearing noticed in accordance with the provisions of Chapter 15.45 of the Newport Beach Municipal Code. 5.3 Information to be Provided to Hoact. The City shall mail to Hoag a copy of the staff report and related exhibits concerning Agreement performance a minimum of ten (10) days before the Annual Review. 5.4 Mitigation Review. The annual review shall include a detailed report of compliance with the various conditions and mitigation measures contained within the mitigation monitoring plan. The report shall include an analysis of the view impacts of buildings constructed in comparison to the anticipated views as depicted in the EIR. The annual review shall also assess the success of any off-site wetlands mitigation. Hoag shall be found in compliance with this Agreement unless the City Council determines, based upon the evidence presented at the Annual Review, that Hoag has not complied with all mitigation measures and conditions including those imposed as a result of subsequent environmental analysis, applicable to the grading of, or building on, the Property as of the date of the Annual Review. 5.5 Review Letter. If Hoag is found to be in compliance with the Agreement after the Annual Review, the City shall issue, within ten (10) days of Hoag's written request, a letter to Hoag stating that the Agreement remains in effect and Hoag is not in Default. 5.6 Estoppel Certificate. Either Party may at any time deliver written Notice to the other Party requesting an estoppel certificate (the "Estoppel Certificate") stating: (a) The Agreement is in full force and effect and is a binding obligation of the Parties. (b) The Agreement has not been amended or modified either orally or in writing or, if so amended, identifying the amendments. 10 v2��/ 6. (c) No Default in the performance of the requesting Party's obligations under the Agreement exists or, if a Default does exist, the nature and amount of any Default. A Party receiving a request for an Estoppel Certificate shal.' provide a signed certificate to the requesting Party within thirty (30) days after receipt of the request. The Planning Director may sign Estoppel Certificates on behalf of the city. An Estoppel Certificate may be relied on by assignees and Mortgagees. The Estoppel Certificate shall be substantially in the same form as Exhibit "D." 5.7 Failure to Conduct Annual Review. The City's failure to conduct an Annual Review shall not constitute or be asserted by the City as Hoag's Default. GENERAL PROVISIONS. 6.1 Effective Date. This Agreement and the obligations of the Parties shall be effective as of the Effective Date. However, this Agreement shall bind the Parties as of the Approval Date, subject only to the Adopting Ordinance becoming effective pursuant to California law. 6.2 Applicability to Coastal Zone. This Agreement shall not b.( applicable to those portions of the Property located within the Coastal Zone as defined by the California Coastal Act (Division 20, California Public Resources Code, beginning with Section 30000) until either (1) the required local coastal program for the Property has been certified by the California Coastal Commission or (2) the California Coastal Commission has approved this Agreement. This Subsection is intended solely to comply with the provisions of California Government Code Section 65869 and shall be of no force or effect if Section 65869 is repealed. 6.3 Term of Agreement. The term of this Agreement (the "Term") shall begin on the Effective Date and continue for twenty-five (25) years unless otherwise terminated or modified pursuant to this Agreement. Any modifications to this Agreement are subject to the review and approval of the Coastal Commission or its successor agency. 6.4 Assignment. Hoag has the absolute right to assign (see Section 2.5) its rights and/or delegate its obligations under thi Agreement as part of an assignment of all or a portion.of thti Property. Any assignment shall be subject to the provisions of'- this fdthis Agreement. As long as Hoag owns any part of the Property, Hoag may assign the benefits of this Agreement without delegating the obligations for the portion of the Property 11 6.5 6.7 assigned. If that occurs, however, the benefits assigned shall remain subject to the performance by Hoag of the corresponding obligations. Where an assignment includes the delegation of both the benefits and the corresponding obligations, those obligations become solely the obligations of the assignee. If an assignee is in Default, then as to Hoag or any assignees not in Default, the Default shall not constitute their Default, give grounds for termination of their rights under this Agreement or be a basis for an enforcement action against them. Amendment of Agreement. (a) Subject to the provisions of Subsection (b), and subject to approval of the Coastal Commission or its successor agency, this Agreement may be amended from time to time by the mutual consent of the Parties, or their successors in interest, but only in the manner provided by the Government Code and this Agreement. After any amendment, the term "Agreement" shall refer to the amended Agreement. (b) The City Council shall not approve, and Hoag shall not request, any amendment to the provisions of the Master Plan or this Agreement that would increase the maximum permitted gross floor area or the maximum permitted building height (within any lettered building envelope) above that established by the Master Plan as of the Effective Date of this Agreement. This Subsection shall prevail over any conflicting ordinance, resolution, policy or plan adopted by the City Council. Enforcement. This Agreement is enforceable by each of the Parties and their respective successors and assigns. Termination. This Agreement shall be deemed terminated and of no further effect upon the occurrence of any of the following events: (a) Expiration of the twenty-five (25) year term; (b) Entry, after all appeals have been exhausted, of a final judgment or issuance of a final order directing the City to set aside, withdraw, or abrogate the City's approval of this Agreement or any material part of the Project; or, (c) The effective date of a Party's election to terminate the Agreement as provided in Section 9.3 of this Agreement. 12 6.8 Hoag shall defend, indemnify and hold harmless the City and its officers and employees with respect to any claim, loss or damage in any way related to the grading, excavation or stabilization of the slopes adjacent to the view parks by Hoag or its employees, agents contractors or representatives. Thi:( /,- Section is not intended to impose liability on Hoag for the acts of persons other than Hoag or its agents, representatives or contractors. 6.9 Hoag shall enter into an agreement with City to accept ownership of, and responsibility for maintenance of, the existing methane gas venting flare and any device for collecting gas that is subsequently installed on the Property pursuant to conditions or mitigation measures imposed in conjunction with the Master Plan approval or subsequent environmental analysis. 7. CONFLICTS OF LAW. 7.1 Conflict with State and Federal Laws and Regulations. where state or federal laws or regulations prevent compliance with one or more provisions of this Agreement, those provisions shall be modified, through revision or suspension, to th( extent necessary to comply with such state or federal laws oi( regulations and the modified Agreement shall remain in effect, subject to the following: (a) the City shall not request modification of this Agreement pursuant to this provision unless and until the City Council makes a finding that such modification is required (as opposed to permitted) by state and federal laws or regulations; (b) the modifications must be limited to those required (as opposed to permitted) by the state or federal laws; (c) the modified Agreement must be consistent with the state or federal laws or regulations which required modification or suspension; (d) the intended material benefits of this Agreement must still be received by each of the Parties after modification; (e) neither the modification nor any applicable local, state, or federal laws or regulations, may render the modified Agreement impractical to enforce; and 13 (f) Hoag consents in writing to the modification. Lq)_ Any modifications are subject to approval of the Coastal Commission or its successor agency. Hoag shall have the right to seek judicial review of any proposed modification to ensure compliance with this Section. 7.2 Effect of Termination. If this Agreement is terminated as a result of changes in state or federal law, Hoag remains obligated to comply with the provisions of Section 8.2(a) and (b), unless Hoag has completed construction of less than twenty-five percent (25%) of the maximum permitted development. 8. PUBLIC BENEFITS/EXACTIONS. 8.1 Public Benefits. City and Hoag agree that this Agreement confers a substantial public benefit by enabling Hoag to construct facilities most appropriate to changes in medical technology and thereby better satisfy the health care needs of residents within its service area. In addition, the Master Plan and this Agreement confer benefits on the public and nearby residents by imposing long term restrictions on the height, amount and location of development as well as the public improvements described in Section 8.2. 8.2 Exactions. Hoag shall, as a condition to the right to develop, do the following: (a) Prior to commencement of development, Irrevocably offer to dedicate and grade the proposed linear and consolidated view park identified in Figure 3.2.1 of Volume 1 of the EIR. The first stage of development shall include grading of the public linear and consolidated view -park identified in Figure 3.2.1. of Volume I of the EIR. Hoag shall grade and excavate the slope adjacent to the proposed .28 (28/100) acre consolidated view park and .52 (52/100) acre public linear view park in a way that ensures stability of the park and adjacent slopes. The grade (between the bicycle path and edge of slope) of the view parks shall be the minimum necessary to insure adequate drainage. The improvement for the linear and consolidated public parks shall be completed prior to coastal development applications for construction of any structure identified for the lower campus in the Master Plan (b) Subsequent to the approval of this Agreement by the Coastal Commission and the expiration of any statute of 14 limitation for filing a legal challenge to this Agreement, the Master Plan, or the EIR, Hoag shall deposit Two Hundred and Fifty Thousand Dollars ($250,000.00) in an account, and at a financial institution, acceptable to City. The account shall be in the name of the City provided, however, Hoag shall have the right to access the funds in the event, but only to the extent that, Hoag constructs or installs the improvements described in (i) or (ii). Funds in the account shall be applied to the following projects (in order of priority upon notice to proceed served by City on Hoag): (i) The construction of a sidewalk and installation of landscaping in the CalTrans right-of-way along the west side of Newport Boulevard southerly of Hospital Road; The construction of facilities necessary to bring reclaimed water to West Newport and/or the Property; Any funds remaining in the account after completion of the projects described in (i) and (ii) shall be used by the City to fund, in whole or in part, a public improvement in the vicinity of the property. (c) City and Hoag shall conduct a study of possible future improvements in and around the easterly end of Semeniuk Slough that would, among other things, improve the appearance of the area and, potentially, serve as a component to improve public access from residential areas in West Newport to park land and public recreation facilities proposed in conjunction with development of the West Newport Oil Company property. The study shall analyze, among other things, the type of improvements that would improve the area without adversely impacting wetlands, the possible location of pedestrian trails and the potential for those trials to improve access to propose, recreational facilities, phasing of the improvements, potential public benefits, and the cost of the improvements. As a part of the study, Hoag and City shall meet and confer with resource agencies relative to the type and extent of improvements that may be permitted in or adjacent tc wetlands. Hoag shall fund the study and participate in� the cost of constructing any improvements in the area that the City Council determines are feasible and in the public interest, provided, however, the financial contribution of Hoag, including the costs of the study 15 and improvements, shall not exceed Two Hundred Thousand Dollars ($200,000.00). (d) Hoag's obligations pursuant to Subsection (c) are contingent on Coastal Commission approval of the Master Plan a-nd attached as Exhibit C to this Agreement with no significant reduction in entitlement from that authorized in the Master Plan. Hoag's obligations pursuant to Subsection (b) shall be reduced through good faith negotiations in the event the Coastal Commission reduces entitlement by ten percent (10%) or more from that authorized in the Master Plan. 9. DEFAULT, REMEDIES AND TERMINATION. 9.1 General Provisions. In the event of a Default (see Section 2.11), the Party alleging a Default shall give the other Party a written Notice of Default. The Notice of Default shall specify the nature of the alleged Default, and a reasonable manner and sufficient period of time (not less than thirty (30) days) 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 the Agreement or institution of legal proceedings. If the alleged Default is cured within the Cure Period, then a Default shall be deemed not to exist. 9.2 Option to Institute Legal Proceedings or to Terminate. If an alleged Default is not cured within the Cure Period, the noticing Party must give the defaulting Party a Notice of intent to terminate the Agreement. Within thirty (30) days after giving of the Notice, the City Council shall hold a public hearing in the manner set forth in Government Code Sections 65865,65867, and 65868, as amended, to consider and review the matter. 9.3 Notice of Termination. After considering the evidence presented to the City Council, the Party alleging the Default, at its option, may give written Notice of termination of the Agreement to the other Party and the Agreement shall be terminated immediately upon giving the Notice. A termination shall be valid only if good cause exists and clear and convincing evidence was presented to the City Council to establish the existence of a Default. The findings of the City Council as to the existence of a Default shall have no weight in any legal proceeding brought to determine the existence of a Default. The validity of any termination may be challenged pursuant to Section 11.16, in which case the court must render 16 an independent judgment, on the basis of clear and convincing evidence, as to the existence of good cause for termination. Termination may result only from a material Default of a material provision of this Agreement. 9.4 Waiver. Failure or delay in giving Notice of Default shall not waive a Party's right to give future Notice of the same or any other Default. 9.5 Default by Hoaa. If the City alleges a Hoag Default, the City shall conduct a hearing utilizing the Annual Review procedures required by this Agreement before the City may commence legal proceedings to terminate this Agreement. 9.6 Default by the City. If Hoag alleges a City Default, Hoag, without limiting any of its other remedies, shall not be obligated to proceed with or complete the Project or any phase of the Project, nor to perform any further obligations under the Agreement. Upon a City Default, any resulting delays in Hoag's performance shall neither be Hoag's Default nor constitute grounds for termination or cancellation of the Agreement by the City. 10.0 ENCUMBRANCES AND RELEASES ON PROPERTY. 10.1 Discretion to Encumber. Hoag may encumber all or any portion of the Property in any manner. The City acknowledges that lenders providing financing may require technical modifications to the Agreement which do not materially alter the intent of the Parties. The City agrees to meet, upon request, with Hoag and/or lenders to negotiate in good faith any lender request for modification. The City agrees to not withhold unreasonably its consent to such modification. Any such modification is subi_ ect to the review and approval of the Executive Director of the Coastal Commission or its successor actency._ 10.2 Entitlement to Written Notice of Default. Any Mortgagee and its successors and assigns, upon written request to the City, shall be entitled to receive from the City written Notice of any Hoag Default at the same time Hoag is provided with Notic pursuant to Section 9.1. 11.0 MISCELLANEOUS PROVISIONS. 17 11.1 Notices. All Notices (see Section 2.26) shall be written and delivered by personal delivery (including Federal Express and other commercial express delivery services providing acknowledgments or receipt), registered, certified, or express mail, or telegram to the addresses set forth below. Receipt shall be deemed complete as follows: (a) For personal delivery, upon actual receipt; (b) For registered, certified, or express mail, upon the delivery date or attempted delivery date as shown on the return receipt; and (c) For telegram, upon the transmission of the telegram. Notices shall be addressed as follows: To the City: City Clerk City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92660 Attention: City Attorney Attention: City Manager To Hoag: Hoag Memorial Hospital Presbyterian 301 Newport Boulevard Newport Beach, CA 92663 Attention: President With a copy to: Tim Paone Paone, Callahan, McHolm & Winton 19100 Von Karman, 8th Floor P.O. Box 19613 Irvine, CA 92713-9613 The addresses to which Notices shall be sent may be changed by giving Notice of a new address. 11.2 Enforced Delay;Extension of Time of Performance. Neither Party shall be deemed to be in Default where delays or non- performance are due to war, insurrection, strikes, walkouts, riots, floods, earthquakes, fires, oil spills, casualties, acts of nature, unavailability of materials, governmental restrictions imposed or mandated by governmental entities, suspension of rights in accordance with the existence of unforeseen circumstances, litigation, or similar bases for excused performance. If written Notice of such delay is given 18 J to the other Party within thirty (30) days after such delay begins an extension of time for performance shall be granted in writing for the period of the delay, or longer as may be mutually agreed upon. In no event shall the term of this Agreement be extended as a result of the application of thio( Subsection. 11.3 Severability. If any material part of the Agreement is found by a court to be invalid, void, or illegal, the Parties shall modify the Agreement to implement the original intent of the Parties. These steps may include the waiver by either of the Parties of their right under the unenforceable provision. If, however, the Agreement objectively cannot be modified to implement the original intent of the Parties and the Party substantially benefitted by the material provision does not waive its rights under the unenforceable provision, the entire Agreement shall become void. For purposes of this Section, and without excluding the possible materiality of other provisions of this Agreement, all provisions of Sections 3. 4 and 8 are deemed "material." 11.4 Entire Agreement. This Agreement constitutes the entire understanding and Agreement of the Parties regarding the subject matter of this Agreement. This Agreement supersede all negotiations and previous agreements between the Parties, regarding that subject matter. 11.5 Waivers. All waivers of the provisions of this Agreement must be in writing and signed by the Party making the waiver and are subject to approval of the Coastal Commission or its successor agency. 11.6 Incorporation of Recitals. The Recitals set forth in Section 1 are part of this Agreement. 11.7 Covenant of Good Faith and Fair Dealing. Neither Party shall do anything which shall have the effect of harming or injuring the right of the other Party to receive the benefits of this Agreement. 11.8 Further Actions and Instruments. Upon the request of eithe Party, the other Party shall promptly execute,with', acknowledgment or affidavit if reasonably required, and file or, record such required instruments and writings and take any actions as may be reasonably necessary under the terms of this 19 Agreement or to evidence or consummate the transactions contemplated by this Agreement. 11.9 Successors and Assigns. Subject to Section 6.3 above, the burdens of this Agreement shall be binding upon, and the benefits of the Agreement inure to, all successors -in -interest and assigns of the Parties. 11.10 Construction of Agreement. All language in all parts of this Agreement shall be construed as a whole and given its fair meaning. The captions of the paragraphs and subparagraphs are for convenience only and shall not be considered or referred to in resolving questions of construction. This Agreement shall be governed by the laws of the State of California. This Agreement is not intended to impermissibly contract away the legislative and governmental functions of the City, and in particular, the City's police powers or to surrender or abrogate the city's governmental powers over the Property. 11.11 Authority to Execute. The person executing this Agreement on behalf of Hoag warrants and represents that he/she has the authority to do so and the authority to bind Hoag to the performance of Hoag's obligations under this Agreement. 11.12 Consent. Any consent required by the Parties in carrying out the terms of this Agreement shall not unreasonably be withheld. 11.13 Effect on Title. This Agreement shall not continue as an encumbrance against any portion of the Property as to which this Agreement has terminated. 11.14 Recording. The City Clerk shall cause a copy of this Agreement to be executed by the City and recorded in the Official Records of Orange County no later than ten (10) days after the Effective Date. The recordation of this Agreement is deemed a ministerial act and the failure of the City to record the Agreement as required by this Section and Government Code Section 65868.5 does not make the Agreement void or ineffective. 11.15 Institution of Legal Action. In addition to any other rights or remedies, either Party may institute legal action to cure, correct, or remedy any Default, to enforce any provision of this Agreement, to enjoin any threatened or attempted violation of this Agreement, to recover damages for any Default, or to 20 r obtain any remedies consistent with the purpose of this Agreement. Legal actions shall be instituted in the Superior Court of the County of Orange, State of California, or in the Federal District Court in the Central District of California. i 11.16 Attorneys' Fees. In any arbitration, quasi-judicial,' administrative, or judicial proceeding between the Parties initiated with respect to this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and all costs, expenses, and disbursements in connection with such action. Date: , 1993 CITY OF NEWPORT BEACH By: Clarence Turner, Mayor Date: , 1993 HOAG MEMORIAL HOSPITAL PRESBYTERIAN By: Albert J. Auer Chairman of the Board ub%hoagda.fn1 11/29/93 �i 21 _�.:z ORDINANCE NO. 93_ AN ORDINANCE OF THE CITY OF NEWPORT BEACH APPROVING AN AMENDED DEVELOPMENT AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND HOAG MEMORIAL HOSPITAL AGREEMENT NO. 5) The City Council of the City of Newport Beach DOES ORDAIN as follows: SECTION 1. The City Council finds and declares that: a. The State Legislature and the City Council have determined that the lack of certainty in the approval of development projects can result in a waste of resources, escalate the cost of housing and other development to the consumer, and discourage investment in and commitment to comprehensive planning which would make maximum efficient utilization of resources at the least economic cost to the public; and b. Assurance that an applicant may proceed with a project in accordance with existing policies, rules and regulations, and subject to conditions of approval, will strengthen the public planning process, encourage private participation in comprehensive i planning, and reduce the economic costs of development; an c. California Government Code Section 65864 et seq. authorizes cities to enter into development agreements with any person having a legal or equitable interest in real property for the development of the property; and d. Chapter 15.45 of the Newport Beach Municipal Code provides requirements and procedures for the adoption of development agreements; and e. The amended Development Agreement No. 5 has been prepared in compliance with state law and the Newport Beach Municipal Code; and f. In compliance with state law and city ordinance, a duly noticed public hearing was held by the City Council to consider the amended Development Agreement No. 5; and g. The City Council finds that said Development Agreement is in compliance with the California Environmental Quality Act and Guidelines promulgated thereunder; and h. The City Council finds that said Development Agreement is in conformance with the Newport Beach General Plan. ,--?r 3_3 SECTION 2, Pursuant to Chapter 15.45 of the Newport Beach Municipal Code establishing procedures and requirements for the consideration of development agreements, the amended Development Agreement No: 5 for Hoag Memorial Hospital Presbyterian, attached hereto as Exhibit "A", is hereby approved. SECTION 3. Copies of said Development Agreement are on file in the offices of the City Clerk and Planning Department of the City of Newport Beach and said Development Agreement is made a part hereof by this reference. SECTION 4. This Ordinance shall be published once in the official newspaper of the City, and the same shall be effective thirty (30) days after the date of its adoption. This Ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach held on the nth day of December , 1993, and was adopted on the day of -, 1994, by the following vote, to wit: AYES, COUNCIL MEMBERS NOES, COUNCIL MEMBERS ABSENT COUNCIL MEMBERS MAYOR ATTEST: CITY CLERK Attachment Exhibit 'W': Amended Development Agreement No. 5 for Hoag Memorial Hospital Presbyterian PLT:..\CC\AM D\ADA5.0 RD � 3H Qel FROM: SUBJECT: City Council Meeting January 24, 1994 Agenda Item No. 23 SUPPLEMENTAL REPORT CITY OF NEWPORT BEACH Mayor and Members of the City Council Planning Department BY•ThiE ClIY CQ�`t�'r!� CITY OF NEV'JP&-,T L-1 {:;-I AN 2 J2 Q ►c?r s Development Agreement No. 5 C — Z �12- (3Y z -/�V - /�z Request to approve an amendment to Development Agreement No. 5 for the Hoag Hospital Master Plan between the City of Newport Beach and Hoag Memorial Hospital Presbyterian. LOCATION: Lower Campus: A portion of Lot 172, Block 1, Irvine's Subdivision, located at 4000 West Coast Highway, on the northerly side of West Coast Highway, between Newport Boulevard and Superior Avenue. Upper Campus: Parcel No. 1 of Record of Survey 15-30, located at 301 Newport Boulevard, on the southwesterly corner of Hospital Road and Newport Boulevard. ZONE: P -C (Planned Community) APPLICANT: Hoag Memorial Hospital Presbyterian, Newport Beach OWNER: Same as Applicant Revised Development Agreement Language Attached to this report is the final revised development agreement language for the Hoag Hospital Master Plan. The changes, which are in strike-out/underline format, have been reviewed and agreed to by the City, the staff of the Coastal Commission, and Hoag Hospital. Of particular note is the change relative to the timing of park development. The original report for this item referenced a two or three year time frame for construction of the view park. The Coastal Commission staff had originally suggested that the park be constructed within two years of dedication. The City Manager requested that the City be given three years to construct the park. Coastal staff has now indicated that this would acceptable, subject to the maintenance of adequate TO: May and Members of the City Council - 2. erosion control measures. This time frame is reflected in the new development agreement language. Respectfully submitted, PLANNING DEPARTMENT JAMES D. HEWICKER, Director By 'Pil-Al &a Patricia L. Temple Advance Planning Manager Attachment: Revised draft Development Agreement PLT:.AW INWORD\DA5-SR5.DOC ORDINANCE NO. 94 - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH APPROVING AN AMENDED DEVELOPMENT AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND HOAG MEMORIAL HOSPITAL PRESBYTERIAN (DEVELOPMENT AGREEMENT NO. 5) The City Council of the City of Newport Beach DOES ORDAIN as follows: SECTION 1. The City Council finds and declares that: a. The State Legislature and the City Council have determined that the lack of certainty in the approval of development projects can result in a waste of resources, escalate the cost of housing and other development to the consumer, and discourage investment in and commitment to comprehensive planning which would make maximum efficient utilization of resources at the least economic cost to the public; and b. Assurance that an applicant may proceed with a project in accordance with existing policies, rules and regulations, and subject to conditions of approval, will strengthen the public planning process, encourage private participation in comprehensive planning, and reduce the economic costs of development; and c. California Government Code Section 65864 et seq. authorizes cities to enter into development agreements with any person having a legal or equitable interest in real property for the development of the property; and d. Chapter 15.45 of the Newport Beach Municipal Code provides requirements and procedures for the adoption of development agreements; and e. The amended Development Agreement No. 5 has been prepared in compliance with state law and the Newport Beach Municipal Code; and f. In compliance with state law and city ordinance, a duly noticed public hearing was held by the City Council to consider the amended Development Agreement No. 5; and g. The City Council finds that said Development Agreement is in compliance with the California Environmental Quality Act and Guidelines promulgated thereunder; and h. The City Council finds that said Development Agreement is in conformance with the Newport Beach General Plan. SECTION 2. Pursuant to Chapter 15.45 of the Newport Beach Municipal Code establishing procedures and requirements for the consideration of development agreements, the amended Development Agreement No. 5 for Hoag Memorial Hospital Presbyterian, attached hereto as Exhibit "A", is hereby approved. IRA SECTION 3. Copies of said Development Agreement are on file in the offices of the City Clerk and Planning Department of the City of Newport Beach and said Development Agreement is made a part hereof by this reference. i SECTION 4. This Ordinance shall be published once in the official newspaper of the City, and the same shall be effective thirty (30) days after the date of its adoption. This Ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach held on the 24th day of January ,1994, and was adopted on the day of ,1994, by the following vote, to wit: AYES, COUNCIL MEMBERS NOES, COUNCIL MEMBERS ABSENT COUNCIL MEMBERS MAYOR ATTEST: CITY CLERK Attachment Exhibit "A": Amended Development Agreement No. 5 for Hoag Memorial Hospital Presbyterian P LT:. ACC\AM D W DA5.O RD Recording Requested By and When Recorded Return to: ^ity Clerk .ity of Newport Beach 3300 Newport Boulevard P.O. Box 1768 Newport Beach, CA 92659-1768 DEVELOPMENT AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND HOAG MEMORIAL HOSPITAL PRESBYTERIAN Approved Ordinance No. 5 DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT (the "Agreement") is entered into between the City of Newport Beach (the "City"), and Hoag Memorial Hospital Presbyterian ("Hoag"). 1. RECITALS. This Agreement relates to the following: 1.1 Purpose of Agreement. This Agreement is intended to: (a) Enable Hoag to adapt to the ever changing health care needs of those residents within its service area by authorizing eenstruetien design parameters of new or additional facilities in a manner that will allow Hoag to respond to rapid changes in medical and health care technology and delivery systems. (b) Establish strict, binding limits on the amount and height of permitted development as well as ensure compliance with numerous conditions on the density, location, and timing of construction to minimize, to the extent feasible, any environmental impacts of Hoag's proposed expansion. (c) Impose exactions such as dedication of property, construction of public improvements and/or the installation of landscaping visible to the public, which, when considered in conjunction with the public services provided by Hoag, benefit the general public. 1.2 Authorization. This Agreement is authorized by, and is consistent with, the provisions of 65864 et seq. of the Government Code of the State of California, and Chapter 15.45 of the Newport Beach Municipal Code. 1.3 Interest of Hoag. Hoag is the legal and/or equitable owner of approximately forty (40) acres of real property located in the City and more particularly described in Exhibit "A" and depicted in Exhibit "B" (the "Property"). 1.4 Development of the Property. This Agreement authorizes development on the Property consistent with the Hoag Memorial Hospital Presbyterian Master Plan and Planned Community Development Plan ("Master Plan", a copy of which is attached tc this Agreement as Exhibit "C" and incorporated by referencE, when appropriate), subject to the conditions and mitigation measures identified in Environmental Impact Report No. 142 and imposed by the City Council as conditions to approval of the Master Plan and this Agreement and, for all development within 1 0 the coastal zone subject to approval of a coastal development permit by the California Coastal Commission or its successor agency. 1.5 Planning Commission/City Council Hearings. The Planning Commission, after giving appropriate notice, held public hearings to consider a development agreement, the proposed Master Plan, and the EIR on December 5, 1991, January 9, 1992, January 23, 1992, February 6, 1992, and February 20, 1992. The City Council conducted public hearings on the Master Plan, this Agreement and the EIR on March 23, 1992, March 30, 1992, April 13, 1992 and May 11, 1992. 1.6 Consistency. This Agreement is consistent with the various elements of the Newport Beach General Plan, the Master Plan, and other applicable ordinances, plans, and policies of the City. This Agreement is also consistent with the purpose and intent of state and local laws authorizing development agreements in that it represents comprehensive planning, provides certainty in the approval of subsequent projects subject to compliance with conditions, reduces the economic costs of development by providing assurance to Hoag that it may generally proceed with projects in accordance with existing regulations, and provides assurance to adjoining property owners that limits on the height of structures and amount of development as specified in the Master Plan and this Agreement will remain in full force and effect for a period of twenty- five (25) years. 1.7 Police Power. The City Council has determined that this Agreement is in the best interests of the health, safety and general welfare of the City, its residents and the public, was entered into pursuant to, and represents a valid exercise of, the City's police power, and has been approved in accordance with the provisions of state and local law that establish procedures for the approval of development agreements. 1.8 City Ordinance. On May 26, 1992, the City Council adopted Ordinance No. 92-4 approving this Agreement and authorizing the City to enter into this Agreement. The Adopting Ordinance will become effective on June 26, 1992. 2. DEFINITIONS. 2.1 The "Adopting Ordinance" refers to City Ordinance No. 92-4, adopted on May 26, 1992 by the City Council, which approved and authorized the City to enter into this Agreement. 2.2 "Agreement" refers to this "Development Agreement Between the City of Newport Beach and Hoag Memorial Hospital Presbyterian". 2 7 2.3 "Annual Review" refers to the review of Hoag's good faith compliance with this Agreement and conditions on development as set forth in Section 5. 2.4 The "Approval Date" means the date on which the City Council voted to adopt the Adopting Ordinance. 2.5 All forms of use of the verb "assign" and the nouns "assignment" and "assignee" shall include all contexts of hypothecations, sales, conveyances, transfers, leases, and assignments. 2.55 "California Coastal Commission" refers to the California State Resources Agency established under the California Coastal Act of 1976. 2.6 "CEQA" and the "CEQA Guidelines" refers to the California Environmental Quality Act and the CEQA Guidelines promulgated by the Secretary of Resources of the State of California, including any amendments adopted subsequent to the Effective Date. 2.7 "City" refers to the City of Newport Beach, California. 2.8 "City Council" refers to the City Council of the City. 2.9 "Cure Period" refers to the period of time during which a• Default may be cured pursuant to Section 9. 2.10 A "day„ or "days" refers to a calendar day, unless expressly stated to be a business day. 2.11 A "Default" refers to any material default, breach, or violation of the provisions of this Agreement. A "City Default" refers to a Default by the City, while a "Hoag Default" refers to a default by Hoag. 2.12 The "Effective Date" refers to the effective date of the Adopting Ordinance and is the effective date of this Agreement_ nrovided however. the Aareement has been approved by the California Coastal Commission, and the Executive Director of the Coastal Commission is in receipt of a copy of this Agreement signed by both parties. 2.13 The "EIR" refers to final Environmental Impact Report No. 142 of the City of Newport Beach and Supplemental Environmental Impact Report No. 142. i 2.14 An "Estoppel Certificate" refers to the document certifying the status of this Agreement required by Section 5.6 in the form of Exhibit "D". 3 0 2.15 An "Exaction" refers to those specific dedications and improvements required of Hoag and set forth in Section 8.2 below. 2.16 An "Exhibit" refers to an exhibit to this Agreement. All Exhibits are incorporated as a substantive part of this Agreement. The Exhibits to this Agreement are: Exhibit A: Legal Description of the Property Exhibit B: Map of the Property Exhibit C: The Master Plan Exhibit D: Estoppel Certificate 2.17 "Existing General Regulations" means those General Regulations approved by the City on or before the Approval Date (irrespective of their effective date) and not rescinded or superseded by City action taken on or before the Approval Date. 2.18 "Future General Regulations" means those General Regulations (see Section 2.19 below) adopted by the City after the Approval Date. 2.19 "General Regulations" means those ordinances, rules, regulations, policies, and guidelines of the City, which are generally applicable to the use of land and/or construction within the City and include, the Fair Share Traffic Contribution Fee Ordinance, Uniform Building Codes and water and sewer connection and fee ordinances. 2.20 "General Plan" refers to the City's General Plan in effect on the Approval Date, plus all amendments to the General Plan adopted by the City on or before the Approval Date and effective prior to the Effective Date. 2.21 "Hoag" refers to Hoag Memorial Hospital Presbyterian, a non- profit corporation. 2.22 "Includes" and all contexts and forms of the words "includes" and "including" shall be interpreted to also state "but not limited to." 2.23 "Master Plan" refers to the Hoag Memorial Hospital Presbyterian Master Plan and Planned Community Development Plan which was adopted by the City on May 26, 1992 (Exhibit "C"). 2.24 "Mortgagee" refers to the holder of a beneficial interest under_ any mortgage, deed of trust, sale-leaseback agreement, or other 4 I transaction under which all or a portion of the Property, including those portions acquired by assignees, is used as security (a "Mortgage") or the owner of any interest in all or any portion of the Property under a Mortgage, including those portions acquired by assignees. 2.25 "Notice" refers to any written notice, or demand between the Parties required or permitted by this Agreement. 2.26 The "Parties" refers to the City and Hoag and a "Party" shall refer to either of the Parties. 2.27 "Planning Commission" refers to the Planning Commission of the City. 2.28 The "Project" refers to the proposed development of the Property pursuant to the Master Plan and this Agreement. 2.29 "Project Specific Approvals" means all site-specific (meaning specifically applicable to the Property only and not generally applicable to some or all other properties within the City) plans, subdivision maps, permits, or other entitlement. Project Specific Approvals include subdivision maps, site plan review, conditional use permits, coastal development permits, variances, grading and building permits, as well as amendments or modifications to those plans, maps and permits. Project; Specific Approvals does not include Existing or Future Generai Regulations. 2.30 The "Property" refers to the real property described on Exhibit "A" and depicted on Exhibit "B." 3. CONDITIONS TO DEVELOPMENT. 3.1 Introduction. The provisions of this Section express the intent of the parties regarding the extent to which this Agreement vests Hoag's right to proceed with the development described in the Master Plan. Hoag acknowledges that its right to proceed with development described in the Master Plan is subject to numerous conditions and mitigation measures including the following: (a) The specific limitations and restrictions contained in the Master Plan; (b) Conditions and mitigation measures imposed by the City Council to mitigate significant effects identified in the EIR; k, 10 (c) Conditions imposed by the City as a result of subsequent or supplemental environmental analysis pursuant to provisions of CEQA and the CEQA Guidelines; (d) Conditions imposed by the City Council in conjunction with the approval of Traffic Study No. 81 and Variance No. 1180; (e) Compliance with the terms and conditions specified in this Agreement. (f) . Compliance with Existing General Regulations. 3.2 Compliance with Master Plan Conditions/Mitigation Measures. Hoag acknowledges that City Council approval of the Master Plan and this Agreement was subject to compliance with numerous conditions and mitigation measures designed to minimize or eliminate the significant adverse effects of the Project and ensure the health, safety, and welfare of nearby residents as well as Hoag patients and employees. Many of these conditions and mitigation measures impose specific development standards and requirements to be implemented in conjunction with further study and analysis of site or subsurface conditions before grading or construction. Specific mitigation measures that require compliance with, or satisfaction of, standards before grading or construction can occur include the following: (a) Slope excavation techniques which insure stability; (b) Grading and excavation techniques which minimize disturbance to adjacent residents and the general public; (c) Identification of potential faults on site and construction of buildings pursuant to recommendations of certified geologists and in a manner which insures that nearby residents, Hoag patients and Hoag employees are not exposed to a significant risk of injury; (d) Evaluation of soil corrosivity and removal of corrosive soils or use of corrosion resistant construction materials; (e) Mitigation of impacts caused by removal of wetlands through off-site restoration as required by resource agencies; (f) Preparation and approval of a project trip generation study prior to development of Phase I of the Master Plan (if Hoag proposes a land use other than specified in the approved Traffic Study); M Cl (g) Preparation and approval of a project trip generation study as a condition to construction of development in Phases II and III of the Master Plan; (h) Preparation and approval of a Traffic Phasing Ordinance analysis prior to construction of development in Phase II and Phase III of the Master Plan; (i) Preparation of a view impact analysis of each proposed building prior to issuance of permits; (j) Analysis and mitigation of emissions in accordance with the regulations of the South Coast Air Quality Management District; (k) Preparation and approval of a construction phasing and traffic control plan for each phase of development. Hoag 's right to develop the Property pursuant to the Master Plan is contingent upon compliance with, and satisfaction of, the conditions and mitigation measures imposed by the City Council as of the Approval Date, conditions imposed by the California Coastal Commission required for approval of coastal development permits, as well as conditions and mitigation measures resulting from subsequent environmental analysis ap, specified in Paragraph 3.3. 3.25 Future Coastal Act discretionary review may result in specific mitigation measures to ensure consistency with the Coastal Act that require compliance with, or satisfaction of, standards before grading or construction can occur. EIB." FhegEIR E%R1yzHea§heckmpw1tdgef tbattthettlR ghasedPnugrabime and, pursuant to CEQA, City is under a continuing obligation to analyze Hoag's requests for Project Specific Approvals to ensure the environmental impacts associated with the request were fully addressed in the EIR. Subsequent environmental documentation is required if this analysis reveals environmental impacts not fully addressed in the program EIR, identifies new impacts, or concludes the specific request is not consistent with the project described in the EIR. Hoag acknowledges the right and obligation of the City and the Coastal Commission or its successor agency to impose additional conditions as the result of the subsequent environmental analysis required by CEQA. 3.4 Mitigation Monitoring Plan. City shall prepare a Mitigation Monitoring Plan ("Plan") within sixty (60) days after the- Effective Date. Hoag shall not submit any application ford Project Specific Approval until the Plan has been approved by the City Council and the Executive Director of the Coastal Commission or the appropriate entity of its successor agency.. The Plan shall comply with and satisfy the requirements of CEQA 7 %2- and the Guidelines and the Coastal Act. The Plan shall be available to the public upon request. 3.5 Compliance with General Regulations. Hoag is required to comply with the Existing General Regulations. As to those Existing General Regulations which require the payment of fees, costs, and expenses, Hoag shall pay the fee, cost, or expense required as of the date on which Hoag submits the application for Project Specific Approval. Hoag shall also comply with any Future General Regulations that do not impair Hoag's ability to develop the Property in accordance with the density, intensity, heightand location of development specified in the Master Plan. Hoag shall also comply with all provisions of the Uniform Building Code, whether adopted before or after the Approval Date, which are in effect at the time applications for Project Specific Approvals are submitted. Hoag shall also comply with the Coastal Act and the City's certified Local Coastal Program. 4. RIGHT TO DEVELOPMENT. 4.1 Right to Develop. Subject to compliance with the provisions of Sections 3 and 8.2, Hoag shall have a vested right to develop and receive Project Specific Approvals for construction on the Property to the full extent permitted by the Master Plan. Subject to the provisions of Sections 3 and 8, City shall only take action which complies with and is consistent with the Master Plan and this Agreement unless Hoag otherwise consents in writing. Subject to this Subsection, City shall have the authority to impose only those Exactions which are specifically described in this Agreement, except as expressly required (as opposed to permitted) by state or federal law. 4.2 Reservations or Dedications of Land. Except as expressly provided in this Agreement, no dedications or reservations of the Property shall be required of Hoag in conjunction with the application or issuance of any Project Specific Approvals. 4.3 Conflicting Measures. Except as expressly provided in this Agreement, no initiative measure, moratorium, referendum (except as provided in Government Code Section 65857.5), ordinance, statute or other provision of law which in any way limits or restricts development of the Property to the full extent permitted by the Master Plan and this Agreement (including density, intensity, timing, phasing, and sequencing) shall be applied to the Property during the term of this Agreement. 0 13 4.4 Time for Construction and Completion of Prosect. Subject to the provisions of this Agreement and the Master Plan, Hoag shall have the right to decide the timing, phasing, and sequencing of construction on the Property and shall be, entitled to apply for, and receive approval of, in a timell( manner, permits or approvals at any time. 5. ANNUAL REVIEW. 5.1 City and Hoag Responsibilities. At least every twelve (12) months during the Term, the City shall review Hoag's good faith substantial compliance with this Agreement (the "Annual Review"). After the Annual Review, the City's finding of good faith compliance by Hoag shall be conclusive for the purposes of future Annual Reviews or legal action between the Parties. Either Party may address any requirements of the Agreement during the Annual Review. However, fifteen (15) days' written Notice of any requirement to be addressed shall be made by the requesting Party. If, at the time of the review, an issue not previously identified in writing is required to be addressed, the review shall be continued at the request of either Party to afford sufficient time for analysis and preparation of a response. 5.2 Public Hearing. The Annual Review shall be conducted at public hearing noticed in accordance with the provisions o., Chapter 15.45 of the Newport Beach Municipal Code. 5.3 Information to be Provided to Hoag. The City shall mail to Hoag a copy of the staff report and related exhibits concerning Agreement performance a minimum of ten (10) days before the Annual Review. 5.4 Mitigation Review. The annual review shall include a detailed report of compliance with the various conditions and mitigation measures contained within the mitigation monitoring plan. The report shall include an analysis of the view impacts of buildings constructed in comparison to the anticipated views as depicted in the EIR. For the five year monitoring period imposed by the Department of Fish and Game Streambed Alteration Agreement entered into between the Department of Fish and Game and Hoag, the annual review shall also assess the success of any off-site wetlands mitigation. Five years after the completion of the Department of Fish and Game monitoring period, Hoag shall submit a final report assessing the success of the off-site wetlands mitigation in its annual review. If the survival and cover requirements set forth in the Streambe�, Alteration Agreement have not been met, Hoag shall be responsible for replacement planting to achieve these requirements. Hoag shall be found in compliance with this Agreement unless the City Council determines, based upon the PC /Y evidence presented at the Annual Review, that Hoag has not complied with all mitigation measures and conditions including those imposed as a result of subsequent environmental analysis, applicable to the grading of, or building on, the Property as of the date of the Annual Review. 5.5 Review Letter. If Hoag is found to be,in compliance with the Agreement after the Annual Review, the City shall issue, within ten (10) days of Hoag's written request, a letter to Hoag stating that the Agreement remains in effect and Hoag is not in Default. 5.6 Estoppel Certificate. Either Party may at any time deliver written Notice to the other Party requesting an estoppel certificate (the "Estoppel Certificate") stating: (a) The Agreement is in full force and effect and is a binding obligation of the Parties. (b) The Agreement has not been amended or modified either orally or in writing or, if so amended, identifying the amendments. (c) No Default in the performance of the requesting Party's obligations under the Agreement exists or, if a Default does exist, the nature and amount of any Default. A Party receiving a request for an Estoppel Certificate shall provide a signed certificate to the requesting Party within thirty (30) days after receipt of the request. The Planning Director may sign Estoppel Certificates on behalf of the city. An Estoppel Certificate may be relied on by assignees and Mortgagees. The Estoppel Certificate shall be substantially in the same form as Exhibit "D." 5.7 Failure to Conduct Annual Review. The City's failure to conduct an Annual Review shall not constitute or be asserted by the City as Hoag's Default. 6. GENERAL PROVISIONS. 6.1 Effective Date. This Agreement and the obligations of the Parties shall be effective as of the Effective Date. However, this Agreement shall bind the Parties as of the Approval Date, subject only to the Adopting Ordinance becoming effective pursuant to California law. 6.2 Applicability to Coastal Zone This Agreement shall not be applicable to those portions of the Property located within the Coastal Zone as defined by the California Coastal Act (Division 10 C', r_1 20, California Public Resources Code, beginning with Section 30000) until either (1) the required local coastal program for the Property has been certified by the California Coastal Commission or (2) the California Coastal Commission has/,- approved asteapproved this Agreement. This Subsection is intended solely td, comply with the provisions of California Government Code Section 65869 and shall be of no force or effect if Section 65869 is repealed. 6.3 Term of Agreement. The term of this Agreement (the "Term") shall begin on the Effective Date and continue for twenty-five (25) years unless otherwise terminated or modified pursuant to this Agreement. Any modifications to this Agreement prior to effective certification of the City's Local Coastal Program (LCP) are subject to the review and approval of the Coastal Commission or its successor agency. 6.4 Assignment. Hoag has the absolute right to assign (see Section 2.5) its rights and/or delegate its obligations under this Agreement as part of an assignment of all or a portion of the Property. Any assignment shall be subject to the provisions of this Agreement. As long as Hoag owns any part of the Property, Hoag may assign the benefits of this Agreement without delegating the obligations for the portion of the Property assigned. If that occurs, however, the benefits assigned shall remain subject to the performance by Hoag of the corresponding obligations. Where an assignment includes the delegation of both the benefits and the corresponding obligations, those obligations become solely the obligations of the assignee. If an assignee is in Default, then as to Hoag or any assignees not in Default, the Default shall not constitute their Default, give grounds for termination of their rights under this Agreement or be a basis for an enforcement action against them. 6.5 Amendment of Agreement. (a) Subject to the provisions of Subsection (b), and subject to approval of the Coastal Commission or its successor agency prior to effective certification of the City's Local Coastal Program MCP), this Agreement may be amended from time to time by the mutual consent of the Parties, or their successors in interest, but only in the manner provided by the Government Code and this Agreement. After any amendment, the term "Agreement" shall refer to the amended Agreement. (b) The City Council shall not approve, and Hoag shall not request, any amendment to the provisions of the Master Plan or this Agreement that would increase the maximum 11 permitted gross floor area or the maximum permitted building height (within any lettered building envelope) above that established by the Master Plan as of the Effective Date of this Agreement. This Subsection shall prevail over any conflicting ordinance, resolution, policy or plan adopted by the City Council. 6.6 Enforcement. This Agreement is enforceable by each of the Parties and their respective successors and assigns. 6.7 Termination. This Agreement shall be deemed terminated and of no further effect upon the occurrence of any of the following events: (a) Expiration of the twenty-five (25) year term; (b) Entry, after all appeals have been exhausted, of a final judgment or issuance of a final order directing the City to set aside, withdraw, or abrogate the City's approval of this Agreement or any material part of the Project; or, (c) The effective date of a Party's election to terminate the Agreement as provided in Section 9.3 of this Agreement. 6.8 Hoag shall defend, indemnify and hold harmless the City and its officers and employees with respect to any claim, loss or damage in any way related to the grading, excavation or stabilization of the slopes adjacent to the view parks by Hoag or its employees, agents contractors or representatives. This Section is not intended to impose liability on Hoag for the acts of persons other than Hoag or its agents, representatives or contractors. 6.9 Hoag shall enter into an agreement with City to accept ownership of, and responsibility for maintenance of, the existing methane gas venting flare and any device for collecting gas that is subsequently installed on the Property pursuant to conditions or mitigation measures imposed in conjunction with the Master Plan approval or subsequent environmental analysis. CONFLICTS OF LAW. 7.1 Conflict with State and Federal Laws and Regulations. Where state or federal laws or regulations prevent compliance with one or more provisions of this Agreement, those provisions shall be modified, through revision or suspension, to the 12 1� extent necessary to comply with such state or federal laws or regulations and the modified Agreement shall remain in effect, subject to the following: (a) the City shall not request modification of this Agreement pursuant to this provision unless and until the City Council makes a finding that such modification is required (as opposed to permitted) by state and federal laws or regulations; (b) the modifications must be limited to those required (as opposed to permitted) by the state or federal laws; (c) the modified Agreement must be consistent with the state or federal laws or regulations which required modification or suspension; (d) the intended material benefits of this Agreement must still be received by each of the Parties after modification; (e) neither the modification nor any applicable local, state, or federal laws or regulations, may render the modified Agreement impractical to enforce; and (f) Hoag consents in writing to the modification. Sgt Any modifications, prior to effective certification of the City's Local Coastal Program (LCP) are subject to approval of the Coastal Commission or its successor agency. Hoag shall have the right to seek judicial review of any proposed modification to ensure compliance with this Section. 7.2 Effect of Termination. If this Agreement is terminated as a result of changes in state or federal law, Hoag remains obligated to comply with the provisions of Section 8.2(a) and (b), unless Hoag has completed construction of less than twenty-five percent (25%) of the maximum permitted development. 8. PUBLIC BENEFITS/EXACTIONS. 8.1 Public Benefits. City and Hoag agree that this Agreement\ confers a substantial public benefit by enabling Hoag to construct facilities most appropriate to changes in medical technology and thereby better satisfy the health care needs of residents within its service area. In addition, the Master 13 Plan and this Agreement confer benefits on the public and nearby residents by imposing long term restrictions on the height, amount and location of development as well as the public improvements described in Section 8.2. 8.2 Exactions. Hoag shall, as a condition to the right to develop, do the following: (a) Prior to commencement of development irrevocably offer to dedicate and grade the proposed linear and consolidated view park identified in Figure 3.2.1 of Volume 1 of the EIR. The City shall accept the offer of dedication within sixty (60) days after the initial grading permit has been finalled by the City. The first stage of development shall include grading of the public linear and consolidated viewpark identified in Figure 3.2.1. of Volume I of the EIR. Hoag shall grade and excavate the slope adjacent to the proposed .28 (28/100) acre consolidated public view park and .52 (52/100) acre public linear view park in a way that ensures stability of the park and adjacent slopes. The grade (between the bicycle path and edge of slope) of the view parks shall be the minimum necessary to insure adequate drainage. The improvement for the linear and consolidated public parks shall be completed within three (3) years after the offer of dedication has been accepted by the City. The City shall ensure that adequate erosion control measures are implemented prior to construction. (b) Subsequent to the approval of this Agreement by the Coastal Commission and the expiration of any statute of limitation for filing a legal challenge to this Agreement, the Master Plan, or the EIR, Hoag shall deposit Two Hundred and Fifty Thousand Dollars ($250,000.00) in an account, and at a financial institution, acceptable to City. The account shall be in the name of the City provided, however, Hoag shall have the right to access the funds in the event, but only to the extent that, Hoag constructs or installs the improvements described in (i) or (ii). Funds in the account shall be applied to the following projects (in order of priority upon notice to proceed served by City on Hoag): (i) The construction of a sidewalk and installation of landscaping in the CalTrans right-of-way along the west side of Newport Boulevard southerly of Hospital Road; 14 19 9E The construction of facilities necessary to bring reclaimed water to West Newport and/or the Property; Any funds remaining in the account after completion of the projects described in ( i ) and (ii) shal l be used by the City to fund, in whole ,or in part, a public improvement in the vicinity of the property. (c) City and Hoag shall conduct a study of possible future improvements in and around the easterly end of Semeniuk Slough that would, among other things, improve the appearance of the area and, potentially, serve as a component to improve public access from residential areas in West Newport to park land and public recreation facilities proposed in conjunction with development of the West Newport Oil Company property. The study shall analyze, among other things, the type of improvements that would improve the area without adversely impacting wetlands, the possible location of pedestrian trails and the potential for those trials to improve access to proposed recreational facilities, phasing of the improvements, potential public benefits, and the cost of the improvements. As a part of the study, Hoag and City shall meet and confer with/I resource agencies relative to the type and extent of improvements that may be permitted in or adjacent to wetlands. Hoag shall fund the study and participate in the cost of constructing any improvements in the area that the City Council determines are feasible and in the public interest, provided, however, the financial contribution of Hoag, including the costs of the study and improvements, shall not exceed Two Hundred Thousand Dollars ($200,000.00). (d) Hoag's obligations pursuant to Subsection (c) are contingent on Coastal Commission approval of the Master Plan aii4 attached as Exhibit C to this Agreement with no significant reduction in entitlement from that authorized in the Master Plan. Hoag's obligations pursuant to Subsection (b) shall be reduced through good faith negotiations in the event the Coastal Commission reduces entitlement by ten percent (10%) or more from that authorized in the Master Plan. DEFAULT, REMEDIES AND TERMINATION. 9.1 General Provisions. In the event of a Default (see Section 2.11), the Party alleging a Default shall give the other Party 15 C:J a written Notice of Default. The Notice of Default shall specify the nature of the alleged Default, and a reasonable manner and sufficient period of time (not less than thirty (30) days) 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 the Agreement or institution of legal proceedings.. If the alleged Default is cured within the Cure Period, then a Default shall be deemed not to exist. 9.2 Option to Institute Legal Proceedings or to Terminate. If an alleged Default is not cured within the Cure Period, the noticing Party must give the defaulting Party a Notice of intent to terminate the Agreement. Within thirty (30) days after giving of the Notice, the City Council shall hold a public hearing in the manner set forth in Government Code Sections 65865,65867, and 65868, as amended, to consider and review the matter. 9.3 Notice of Termination. After considering the evidence presented to the City Council, the Party alleging the Default, at its option, may give written Notice of termination of the Agreement to the other Party and the Agreement shall be terminated immediately upon giving the Notice. A termination shall be valid only if good cause exists and clear and convincing evidence was presented to the City Council to establish the existence of a Default. The findings of the City Council as to the existence of a Default shall have no weight in any legal proceeding brought to determine the existence of a Default. The validity of any termination may be challenged pursuant to Section 11.16, in which case the court must render an independent judgment, on the basis of clear and convincing evidence, as to the existence of good cause for termination. Termination may result only from a material Default of a material provision of this Agreement. 9.4 Waiver. Failure or delay in giving Notice of Default shall not waive a Party's right to give future Notice of the same or any other Default. 9.5 Default by Hoag. If the City alleges a Hoag Default, the City shall conduct a hearing utilizing the Annual Review procedures required by this Agreement before the City may commence legal proceedings to terminate this Agreement. 9.6 Default by the City. If Hoag alleges a City Default, Hoag, without limiting any of its other remedies, shall not be 16 12, obligated to proceed with or complete the Project or any phase of the Project, nor to perform any further obligations under the Agreement. Upon a City Default, any resulting delays in Hoag's performance shall neither be Hoag's Default nor constitute grounds for termination or cancellation of the Agreement by the City. 10.0 ENCUMBRANCES AND RELEASES ON PROPERTY. 10.1 Discretion to Encumber. Hoag may encumber all or any portion of the Property in any manner. The City acknowledges that lenders providing financing may require technical modifications to the Agreement which do not materially alter the intent of the Parties. The City agrees to meet, upon request, with Hoag and/or lenders to negotiate in good faith any lender request for modification. The City agrees to not withhold unreasonably its consent to such modification. Any such modification, prior to effective certification of the City's Local Coastal Program .(LCP) is subject to the review and approval of the Executive nf trA rnac-'tal cnmmission or its successor aaencv. 10.2 Entitlement to Written Notice of Default. Any Mortgagee and its successors and assigns, upon written request to the City,(, shall be entitled to receive from the City written Notice of any Hoag Default at the same time Hoag is provided with Notice pursuant to Section 9.1. 11.0 MISCELLANEOUS PROVISIONS. 11.1 Notices. All Notices (see Section 2.26) shall be written and delivered by personal delivery (including Federal Express and other commercial express delivery services providing acknowledgments or receipt), registered, certified, or express mail, or telegram to the addresses set forth below. Receipt shall be deemed complete as follows: (a) For personal delivery, upon actual receipt; (b) For registered, certified, or express mail, upon the delivery date or attempted delivery date as shown on the return receipt; and (c) For telegram, upon the transmission of the telegram. Notices shall be addressed as follows: 17 �2 To the City: City Clerk City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92660 Attention: City Attorney Attention: City Manager To Hoag: Hoag Memorial Hospital Presbyterian 301 Newport Boulevard Newport Beach, CA 92663 Attention: President With a copy to: Tim Paone Paone, Callahan, McHolm & Winton 19100 Von Karman, 8th Floor P.O. Box 19613 Irvine, CA 92713-9613 The addresses to which Notices shall be sent may be changed by giving Notice of a new address. 11.2 Enforced Delay;Extension of Time of Performance. Neither Party shall be deemed to be in Default where delays or non- performance are due to war, insurrection, strikes, walkouts, riots, floods, earthquakes, fires, oil spills, casualties, acts of nature, unavailability of materials, governmental restrictions imposed or mandated by governmental entities, suspension of rights in accordance with the existence of unforeseen circumstances, litigation, or similar bases for excused performance. If written Notice of such delay is given to the other Party within thirty (30) days after such delay begins an extension of time for performance shall be granted in writing for the period of the delay, or longer as may be mutually agreed upon. In no event shall the term of this Agreement be extended as a result of the application of this Subsection. 11.3 Severability. If any material part of the Agreement is found by a court to be invalid, void, or illegal, the Parties shall modify the Agreement to implement the original intent of the Parties. These steps may include the waiver by either of the Parties of their right under the unenforceable provision. If, however, the Agreement objectively cannot be modified to implement the original intent of the Parties and the Party substantially benefitted by the material provision does not waive its rights under the unenforceable provision, the entire m Z3 Agreement shall become void. For purposes of this Section, and without excluding the possible materiality of other provisions of this Agreement, all provisions of Sections 3, 4 and 8 are deemed "material." 11.4 Entire Agreement. This Agreement constitutes the entire understanding and Agreement of the Parties regarding the subject matter of this Agreement. This Agreement supersedes all negotiations and previous agreements between the Parties. regarding that subject matter. 11.5 Waivers. All waivers of the provisions of this Agreement must be in writing and signed by the Party making the waiver and, prior to effective certification of the City's Local Coastal Program (LCP) are subject to approval of the Coastal Commission or its successor agency. 11.6 Incorporation of Recitals. The Recitals set forth in Section 1 are part of this Agreement. 11.7 Covenant of Good Faith and Fair Dealing. Neither Party shall do anything which shall have the effect of harming or injuring the right of the other Party to receive the benefits of this Agreement. 11.8 Further Actions and Instruments. Upon the request of either Party, the other Party shall promptly execute, with acknowledgment or affidavit if reasonably required, and file or record such required instruments and writings and take any actions as may be reasonably necessary under the terms of this Agreement or to evidence or consummate the transactions contemplated by this Agreement. 11.9 Successors and Assigns. Subject to Section 6.3 above, the burdens of this Agreement shall be binding upon, and the benefits of the Agreement inure to, all successors -in -interest and assigns of the Parties. 11.10 Construction of Agreement. All language in all parts of this Agreement shall be construed as a whole and given its fair meaning. The captions of the paragraphs and subparagraphs are\ for convenience only and shall not be considered or referred to in resolving questions of construction. This Agreement shall be governed by the laws of the State of California. This Agreement is not intended to impermissibly contract away the 19 )-q legislative and governmental functions of the City, and in particular, the City's police powers or to surrender or abrogate the city's governmental powers over the Property. 11.11 Authority to Execute. The person executing this Agreement on behalf of Hoag warrants and represents that he/she has the authority to do so and the authority to bind Hoag to the performance of Hoag's obligations under this Agreement. 11.12 Consent. Any consent required by the Parties in carrying out the terms of this Agreement shall not unreasonably be withheld. 11.13 Effect on Title. This Agreement shall not continue as an encumbrance against any portion of the Property as to which this Agreement has terminated. 11.14 Recording. The City Clerk shall cause a copy of this Agreement to be executed by the City and recorded in the Official Records of Orange County no later than ten (10) days after the Effective Date. The recordation of this Agreement is deemed a ministerial act and the failure of the City to record the Agreement as required by this Section and Government Code Section 65868.5 does not make the Agreement void or ineffective. 11.15 Institution of Legal Action. In addition to any other rights or remedies, either Party may institute legal action to cure, correct, or remedy any Default, to enforce any provision of this Agreement, to enjoin any threatened or attempted violation of this Agreement, to recover damages for any Default, or to obtain any remedies consistent with the purpose of this Agreement. Legal actions shall be instituted in the Superior Court of the County of Orange, State of California, or in the Federal District Court in the Central District of California. 11.16 Attorneys' Fees. In any arbitration, quasi-judicial, administrative, or judicial proceeding between the Parties initiated with respect to this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and all costs, expenses, and disbursements in connection with such action. 20 Z6 r - Date: , 1993 CITY OF NEWPORT BEACH By: Clarence Turner, Mayor Date: , 1993 HOAG MEMORIAL HOSPITAL PRESBYTERIAN By: wb\hoagda3.fnl 1/21/94 Albert J. Auer Chairman of the Board 21 zb