11 - Approving the Residences at 1400 Bristol Street Project; and Overriding OCALUC's Determination of Inconsistency — Newport Beach City Council, April 9, 2024 (part 2 of 3)

height, private open space for each residential unit, and common open space along with two development concessions related to the mix of affordable units and partial payment of park in -lieu fees pursuant to Chapter 20.32 (Density Bonus) of the NBMC and Government Code Section 65915 et seq. ("State Density Bonus Law");
• Development Agreement ("DA") — A development agreement between the Applicant and the City, pursuant to Section 15.45.020 (Development Agreement Required) of the NBMC, which would provide the Applicant with the vested right to develop the Project for a term of 10 years and provide negotiated public benefits to the City;
• Traffic Study - A traffic study pursuant to Chapter 15.40 (Traffic Phasing Ordinance) of the NBMC; and
• Addendum No. 7 to the 2006 General Plan Update Program Environmental Impact Report and the 2008-2014 City of Newport Beach Housing Element Update and Initial Study/Negative Declaration ("Addendum No. 7") — An addendum which addresses reasonably foreseeable environmental impacts resulting from the Project;
WHEREAS, the Property is designated General Commercial Office (CO-G) by the General Plan Land Use Element and located within the Newport Place Planned Community (PC-11) Zoning District in the Industrial Site 3A sub -area; WHEREAS, the Property is not located within the coastal zone; therefore, amending the Local Coastal Program and obtaining a coastal development permit are not required;
WHEREAS, a public hearing was held by the Planning Commission on December 7, 2023 in the Council Chambers at 100 Civic Center Drive, Newport Beach, California. A notice of time, place and purpose of the hearing was given in accordance with Government Code Section 54950 et seq. ("Ralph M. Brown Act"), and Chapter 15.45 (Development Agreements), Chapter 19.20 (Vesting Tentative Map), Chapter 20.56 (Planned Community District Procedures), and Chapter 20.62 (Public Hearings) of the NBMC. Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this hearing;
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WHEREAS, at the hearing, the Planning Commission adopted Resolution No.

PC2023-043 by a majority vote (6 ayes, 0 nays, 1 absent) recommending the City Council approve the Project;
WHEREAS, California Public Utilities Code ("CPUC") Section 21676(b) requires the City to refer the Project to the Orange County Airport Land Use Commission ("ALUC") to review for consistency with the 2008 John Wayne Airport Environs Land Use Plan ("AELUP");
WHEREAS, on January 18, 2024, the ALUC determined the Project is inconsistent with the AELUP;
WHEREAS, pursuant to Sections 21670 and 21676 of CPUC, the City Council may, after a public hearing, propose to overrule the ALUC with a two-thirds vote, if it makes specific findings that the Project is consistent with the purpose of Section 21670 of the CPUC to protect the public health, safety, and welfare by ensuring the orderly expansion of airports and the adoption of land use measures that minimize the public's exposure to excessive noise and safety hazards within areas around public airports to the extent that these areas are not already devoted to incompatible uses; WHEREAS, a public hearing was held by the City Council on February 13, 2024, in the City Council Chambers located at 100 Civic Center Drive, Newport Beach, California. A notice of time, place, and purpose of the hearing was given in accordance with CPUC Section 21676(b) and the Ralph M. Brown Act. Evidence, both written and oral, was presented to, and considered by, the City Council at this hearing; WHEREAS, at the conclusion of the hearing, the City Council adopted Resolution No. 2024-9 by unanimous vote (7 ayes, 0 nays) to notify the ALUC and State Department of Transportation Aeronautics Program ("Aeronautics Program") of the City's intent to override ALUC's inconsistency finding; WHEREAS, notice of the City's intent to override the ALUC inconsistency determination, along with Resolution No. 2024-9 was sent via certified mail and emailed to the ALUC and the Aeronautics Program on February 14, 2024; WHEREAS, the City received timely comments in response to the notice of the City's intent to override the ALUC inconsistency determination from the ALUC and the Aeronautics Program in accordance with CPUC Section 21676; and 11-161

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NOW THEREFORE, the City Council of the City of Newport Beach ordains as follows:

Section 1: The City Council has considered the recommendation of the Planning Commission and determined that modifications to the Project made by the City Council, if any, are not major changes that require referral back to the Planning Commission for consideration and recommendation.

Section 2: The PCDP Amendment to the Newport Place Planned Community (PC-11)is a legislative act. Neither the Newport Place Planned Community (PC-1 1), Chapters 20.56 (Planned Community District Procedures) and 20.66 (Amendments) of the NBMC, nor Section 65000 et seq. of the California Government Code set forth any required findings for approval of such amendments. Notwithstanding the foregoing, the PCDP Amendment complies with Part III (Residential Overlay) of the Newport Place Planned Community (PC-11)based on the following findings:

1. The Project allocates 15% of the base units (23 dwelling units) as affordable for very -low-income households.

2. Given the location of Property in the Airport Area which includes a mixture of service uses, hotels, John Wayne Airport and commercial support services, professional offices, and new residential developments that cumulatively contain the ingredients of a planned community, the PCDP Amendment would not disrupt the existing uses within the Newport Place Planned Community (PC-11)and would add to this diversity of uses, assisting the City in larger scale community planning and the provision of additional housing opportunities.

3. The Property is located within 85 feet of the Residential Overlay set forth in the Newport Place Planned Community (PC-1 1). The property nearest to the site within the Residential Overlay is 1300 Bristol Street, across Spruce Street. The 11-162

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property at 1300 Bristol has been approved but not yet constructed as a residential apartment project. The Project at 1400 Bristol Street includes a pedestrian bridge that would extend from the subject site to the approved residential project at 1300 Bristol Street. The Project would be consistent with the anticipated future development of 1300 Bristol Street as well other adjacent properties within the Residential Overlay of Newport Place Planned Community (PC-11). The proposed pedestrian bridge would support pedestrian connectivity that integrates the Project into the existing community and larger residential development that may occur in the future pursuant to Section F (Amenities and Neighborhood Integration) of the PCDP Amendment.

4. The Project would be subject to the appropriate site and project specific setbacks, density, and height limits for this urban location. All required parking is provided on -site. The Project compiles with the development standards identified for the Residential Overlay, except as modified by the allowed development standard waivers identified in the Affordable Housing Implementation Plan. The Residential Overlay provides a density range for proposed projects and references the Section 20.32 (Density Bonus) of the NBMC that prescribes the maximum density bonus and incentives allowed. Although the PCDP Amendment references a maximum density bonus of 35%, the Project requests a 50% density bonus, which is consistent with Section 20.32 (Density Bonus) of the NBMC that allows up to 80% density bonus depending on the percentage of affordable units being provided. Therefore, the Project is consistent with the intent of the density bonus assumptions in the Residential Overlay and within the maximum allowed by the density bonus provisions.

5. The Newport Place Planned Community (PC-11) requires an SDR in accordance with Section 20.52.080 of the NBMC. The Project includes an SDR, and all required findings are addressed in a separate resolution.

6. The PCDP Amendment requires the density for a residential development to be between 30 and 50 dwelling units per acre. The Project includes 153 base units, not including density bonus units. Since the Property is 2.28 acres in size, there is a base density of 67 dwelling units per acre. With the density bonus, there is a total of 229 dwelling units, which results in 96 units per acre. Both the base density and density bonus units are not consistent with the PCDP Amendment density requirement; however, the Applicant is requesting a development standard waiver which is required under State Density Bonus Law and Section 11-163

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20.32.080 of the NBMC where application of the development standard would physically preclude construction of a density bonus project.

7. The Property is located near existing office buildings within the Airport Area and is not negatively impacted by noise, dust, smoke, vibration, odor, toxic or noxious matter that may be generated by existing commercial or industrial uses nearby.

8. Residential dwellings are permitted as replacement of existing nonresidential uses, and the number of peak hour trips generated by the Project is not to exceed the number of trips of the underlying permitted nonresidential use. The Property is developed with existing two-story commercial office buildings totaling 38,764 square feet. A standardized conversion rate of 2.29 dwelling units per 1,000 square feet of commercial floor area, as provided by the City Traffic Engineer, is required. This results in a total of 89 dwelling units, which is the proposed base density of the Project less the GPA units requested. The Applicant is requesting a GPA to increase the base units for the Project by 64 dwelling units. With a 50% density bonus or 77 dwelling units requested, a total of 229 dwelling units are proposed for the Project.

9. The Property is fully developed and does not support any natural resources and all potential environmental impacts associated with the Project are appropriately addressed through standard building permit procedures, conditions of approval, and the General Plan Policies identified Addendum No. 7.

Section 3: The City Council hereby approves the PCDP Amendment, as set forth in Exhibit "B," which is attached hereto and incorporated herein by reference and finds that the PCDP Amendment to add the Property to the Residential Overlay complies with the purpose set forth in Section 20.56.010 (Purpose) of the NBMC, with all other provisions of the existing Planned Community District Regulations and exhibits remaining unchanged and in full force and effect.
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Section 4: Environmental Impact Report Addendum No. 7 was prepared for the Project in compliance with CEQA set forth in California Public Resources Code Section 2100 et seq.; CEQA's implementing regulations set forth in the CEQA Guidelines and City Council Policy K-3 (Implementation Procedures for the California Environmental Quality Act) to ensure that the Project will not result in new or increased environmental impacts. On the basis of the entire environmental record, the Project will not result in any new significant impacts that were not previously analyzed in the PEIR for the General Plan 2006 Update (SCH No. 2006011119) and the City of Newport Beach Housing Element Initial Study/Negative Declaration. The potential impacts associated with this Project would either be the same or less than those described in the PEIR or the City of Newport Beach Housing Element Initial Study/Negative Declaration. In addition, there are no substantial changes to the circumstances under which the Project would be undertaken that would result in new or more severe environmental impacts than previously addressed in either the PEIR, nor has any new information regarding potential for new or more severe significant environmental impacts been identified.

The City Council finds that judicial challenges to the City's CEQA determinations and approvals of land use projects are costly and time consuming. In addition, project opponents often seek an award of attorneys' fees in such challenges. As project applicants are the primary beneficiaries of such approvals, it is appropriate that such applicants should bear the expense of defending against any such judicial challenge, and bear the responsibility for any costs, attorneys' fees, and damages which may be awarded to a successful challenger.

Section 5: The recitals provided in this ordinance are true and correct and are incorporated into the substantive portion of this ordinance.

Section 6: If any section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this ordinance. The City Council hereby declares that it would have passed this ordinance and each section, subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional.
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Section 7: The Mayor shall sign and the City Clerk shall attest to the passage of this ordinance. The City Clerk shall cause the ordinance, or a summary thereof, to be published pursuant to City Charter Section 414. This ordinance shall be effective thirty (30) calendar days after its adoption.

This ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach held on the 9th day of April, 2024, and adopted on the 23rd day of April, 2024, by the following vote, to -wit:

AYES:

NAYS:

ABSENT:

WILL O'NEILL, MAYOR
ATTEST:

LEILANI I. BROWN, CITY CLERK
APPROVED AS TO FORM:

CITY ATTORNEY'S OFFICE
��
AMON C. HARP, CITY ATTORNEY
Attachments: Exhibit "A" — Legal Description
Exhibit "B" — Newport Place Planned Community (PC-11) Development Plan Amendment
11-166

EXHIBIT "A"
Legal Description

THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF

NEWPORT BEACH, IN THE COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:

THAT PORTION OF BLOCK 50 OF IRVINE'S SUBDIVISION, AS SHOWN ON A MAP RECORDED IN BOOK 1, PAGE 88 OF MISCELLANEOUS RECORDS MAPS,

RECORDS OF ORANGE COUNTY, CALIFORNIA, TOGETHER WITH THAT PORTION OF TRACT 706, AS SHOWN ON A MAP RECORDED IN BOOK 21, PAGE 25 OF MISCELLANEOUS MAPS, RECORDS OF SAID ORANGE COUNTY, DESCRIBED AS FOLLOWS:

PARCEL 2 IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP FILED IN BOOK 54, PAGE 11 OF PARCEL

MAPS IN THE OFFICE OF THE COUNTY RECORDER OF ORANGE COUNTY, CALIFORNIA.

EXCEPT THE FULL RIGHTS TO ALL MINERALS, PETROLEUM, GAS AND OTHER HYDROCARBON SUBSTANCES EXISTING BELOW FIVE HUNDRED (500) FEET

FROM THE SURFACE OF SAID REAL PROPERTY DESCRIBED ABOVE,

PROVIDED, HOWEVER, THAT GRANTOR HEREBY EXPRESSLY WAIVES THE

RIGHT TO ENTER UPON THE SURFACE OF SAID REAL PROPERTY FOR THE

PURPOSE OF EXPLORING FOR, OR PRODUCING THE MINERALS, PETROLEUM,

GAS AND OTHER HYDROCARBON SUBSTANCES SO RESERVED IN DEED RECORDED JULY 1, 1977.
11-167

EXHIBIT "B"
Newport Place Planned Community (PC-11) Development Plan Amendment 11-168

Add "Residential Overlay" to the Property
Located at 1400 Bristol St N in
the Newport Place Planned Community

Attachment D
Ordinance No. 2024-9
11-170

ORDINANCE NO. 2024- 9

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY

OF NEWPORT BEACH, CALIFORNIA, APPROVING A

DEVELOPMENT AGREEMENT FOR THE RESIDENCES
AT 1400 BRISTOL STREET PROJECT LOCATED AT 1400
BRISTOL STREET (PA2022-0296)
WHEREAS, Section 200 of the City of Newport Beach ("City") Charter vests the City Council with the authority to make and enforce all laws, rules, and regulations with respect to municipal affairs subject only to the restrictions and limitations contained in the Charter and the State Constitution, and the power to exercise, or act pursuant to any and all rights, powers and privileges, or procedures granted or prescribed by any law of the State of California;
WHEREAS, an application was filed by The Picerne Group ("Applicant"), with respect to the property located at 1400 Bristol Street and legally described in Exhibit "A," which is attached hereto and incorporated by reference ("Property").

WHEREAS, the Applicant is requesting approval to demolish two existing office buildings and develop 229 apartment units, including a 422-space parking structure ("Project"), which requires the following approvals:
• General Plan Amendment ("GPA") — A request to amend the General Plan land use designation from General Commercial Office (CO-G) to Mixed -Use Horizontal 2 (MU-H2) and add 64 dwelling units above the General Plan allowance to Anomaly 16 of the General Plan Table LU2 (Anomaly Locations); • Planned Community Development Plan Amendment ("PCDP Amendment") An amendment to the Newport Place Planned Community (PC-11) Development Plan to include the Property within the Residential Overlay; • Major Site Development Review ("SDR") — A site development review in accordance with the Newport Place Planned Community (PC-11) and Section

20.52.080 (Site Development Reviews) of the Newport Beach Municipal Code ("NBMC") to construct the Project;
• Affordable Housing Implementation Plan ("AHIP") — A plan specifying how the Project would meet the City's affordable housing requirements, in exchange for a request of 50% increase in density including a request for six development standard waivers related to park land dedication, building setbacks, building height, private open space for each residential unit, common open space along 11-171

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with two development concessions related to the mix of affordable units and payment of park in -lieu fees pursuant to Chapter 20.32 (Density Bonus) of the NBMC and Government Code Section 65915 et seq. ("State Density Bonus Law");
• Development Agreement ("DA") — A development agreement between the Applicant and the City, pursuant to Section 15.45.020 (Development Agreement Required) of the NBMC, which would provide the Applicant with the vested right to develop the Project for a term of 10 years and provide negotiated public benefits to the City;
• Traffic Study — A traffic study pursuant to Chapter 15.40 (Traffic Phasing Ordinance) of the NBMC; and
• Addendum No. 7 to the 2006 General Plan Update Program Environmental Impact Report and the 2008-2014 City of Newport Beach Housing Element Update and Initial Study/Negative Declaration ("Addendum No. 7") — An addendum which addresses reasonably foreseeable environmental impacts resulting from the Project;
WHEREAS, the Property is designated General Commercial Office (CO-G) by the General Plan Land Use Element and located within the Newport Place Planned Community (PC-11) Zoning District in the Industrial Site 3A sub -area; WHEREAS, the Property is not located within the coastal zone; therefore, amending the Local Coastal Program and obtaining a coastal development permit are not required;
WHEREAS, a public hearing was held by the Planning Commission on December 7, 2023 in the Council Chambers at 100 Civic Center Drive, Newport Beach, California. A notice of time, place and purpose of the hearing was given in accordance with Government Code Section 54950 et seq. ("Ralph M. Brown Act"), and Chapter 15.45 (Development Agreements), Chapter 19.20 (Vesting Tentative Map), Chapter 20.56 (Planned Community District Procedures), and Chapter 20.62 (Public Hearings) of the NBMC. Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this hearing;
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WHEREAS, at the hearing, the Planning Commission adopted Resolution No.

PC2023-043 by a majority vote (6 ayes, 0 nays, 1 absent) recommending the City Council approve the Project;
WHEREAS, California Public Utilities Code ("CPUC") Section 21676(b) requires the City to refer the Project to the Orange County Airport Land Use Commission ("ALUC") to review for consistency with the 2008 John Wayne Airport Environs Land Use Plan ("AELUP");
WHEREAS, on January 18, 2024, the ALUC determined the Project is inconsistent with the AELUP;
WHEREAS, pursuant to Sections 21670 and 21676 of CPUC, the City Council may, after a public hearing, propose to overrule the ALUC with a two-thirds vote, if it makes specific findings that the Project is consistent with the purpose of Section 21670 of the CPUC to protect the public health, safety, and welfare by ensuring the orderly expansion of airports and the adoption of land use measures that minimize the public's exposure to excessive noise and safety hazards within areas around public airports to the extent that these areas are not already devoted to incompatible uses; WHEREAS, a public hearing was held by the City Council on February 13, 2024, in the City Council Chambers located at 100 Civic Center Drive, Newport Beach, California. A notice of time, place, and purpose of the hearing was given in accordance with CPUC Section 21676(b) and the Ralph M. Brown Act. Evidence, both written and oral, was presented to, and considered by, the City Council at this hearing; WHEREAS, at the conclusion of the hearing, the City Council adopted Resolution No. 2024-9 by unanimous vote (7 ayes, 0 nays) to notify the ALUC and State Department of Transportation Aeronautics Program ("Aeronautics Program") of the City's intent to override ALUC's inconsistency finding; WHEREAS, a notice of the City's intent to override the ALUC inconsistency determination, along with Resolution No. 2024-9 was sent via certified mail and emailed to the ALUC and the Aeronautics Program on February 14, 2024; WHEREAS, the City received timely comments in response to the notice of the City's intent to override the ALUC inconsistency determination from the ALUC and the Aeronautics Program in accordance with CPUC Section 21676; 11-173

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WHEREAS, a public hearing was held by the City Council on April 9, 2024, in the City Council Chambers located at 100 Civic Center Drive, Newport Beach, California. A notice of time, place and purpose of the public hearing was given in accordance the Ralph M. Brown Act, Chapter 15.45 (Development Agreements), Chapter 19.20 (Vesting Tentative Map), Chapter 20.56 (Planned Community District Procedures), and Chapter 20.62 (Public Hearings) of the NBMC, and CPUC Section 21676(b). Evidence, both written and oral, was presented to, and considered by, the City Council at this meeting;
WHEREAS, a development agreement is required by Chapter 15.45 (Development Agreements) of the NBMC in that the Project would add more than 50 dwelling units within Statistical Area L4 (Airport Area); WHEREAS, Section 15.45.040 (Contents) of the NBMC requires inclusion of the permitted use of the property, density or intensity of use, maximum height, and size of proposed building into a development agreement,
WHEREAS, the DA satisfies the mandatory elements of Section 15.45.040 (Contents) of the NBMC in providing for the development of 229 dwelling units, inclusive of requested density bonus;
WHEREAS, the DA further satisfies other mandatory elements of Section

15.45.040 (Contents) of the NBMC in the definition of the Newport Place Planned Community (PC-11) Development Plan which incorporates all land use approvals required for the Project;
WHEREAS, the DA also provides other non -mandatory elements, including a term of 10 years for completion of the Project along with providing public benefits that are appropriate to support conveying the vested development rights consistent with the City of Newport Beach General Plan, NBMC, and Government Code Sections 65864 et seq.; and
WHEREAS, the public benefits include the payment of a $232,560 public safety fee, a $581,247 park in -lieu fee, and $2,893,383 public benefit fee, for a total of $3,707,190 to be used by the City Council as specified in the DA. 11-174

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NOW THEREFORE, the City Council of the City of Newport Beach ordains as follows:

Section 2: The City Council finds the Development Agreement is consistent with provisions of California Government Code Sections 65864 to 65869.5 and Chapter

15.45 (Development Agreements) of the NBMC that authorize binding agreements that:
(i) encourage investment in, and commitment to, comprehensive planning and public facilities financing; (ii) strengthen the public planning process and encourage private implementation of the local general plan; (iii) provide certainty in the approval of projects to avoid waste of time and resources; and (iv) reduce the economic costs of development by providing assurance to the property owners that they may proceed with projects consistent with existing policies, rules, and regulations.

Additionally, the City Council finds the Development Agreement is entered into pursuant to, and constitutes a present exercise of, the City's police power and is in the best interest of the health, safety, and general welfare of the City, residents, and the public.

Section 3: The Development Agreement which is attached hereto as Exhibit "B," and incorporated herein by reference between the City of Newport Beach and the Applicant to accommodate the development of Project and to enter the agreement for a term of ten years, is hereby approved.
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Section 4: Environmental Impact Report Addendum No. 7 was prepared for the Project in compliance with the California Environmental Quality Act ("CEQA") set forth in California Public Resources Code Section 2100 et seq.; CEQA's implementing regulations set forth in CCR Title 14, Division 6 Chapter 3 ("CEQA Guidelines") and City Council Policy K-3 (Implementation Procedures for the California Environmental Quality Act) to ensure that the Project will not result in new or increased environmental impacts.

On the basis of the entire environmental record, the Project will not result in any new significant impacts that were not previously analyzed in the PEIR for the General Plan 2006 Update (SCH No. 2006011119) and the 2008-2014 City of Newport Beach Housing Element Initial Study/Negative Declaration. The potential impacts associated with this Project would either be the same or less than those described in the PEIR. In Addition, there are no substantial changes to the circumstances under which the Project would be undertaken that would result in new or more severe environmental impacts than previously addressed in either the PEIR, nor has any new information regarding potential for new or more severe significant environmental impacts been identified.

Section 5: The recitals provided in this ordinance are true and correct and are incorporated into the substantive portion of this ordinance.

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This ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach held on the 9th day of April, 2024, and adopted on the 231d day of April, 2024, by the following vote, to -wit:

AYES:

NAYS:

ABSENT:

WILL O'NEILL, MAYOR
ATTEST:

LEILANI I. BROWN, CITY CLERK
APPROVED AS TO FORM:

CITY ATTORNEY'S OFFICE
AAR N C. HARP, CITY ATTORNEY
Attachments: Exhibit "A" — Legal Description
Exhibit "B" — Development Agreement
11-177

Exhibit "A"
Legal Description

THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF

NEWPORT BEACH, IN THE COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:

THAT PORTION OF BLOCK 50 OF IRVINE'S SUBDIVISION, AS SHOWN ON A MAP RECORDED IN BOOK 1, PAGE 88 OF MISCELLANEOUS RECORDS MAPS,

PARCEL 2 IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP FILED IN BOOK 54, PAGE 11 OF PARCEL

MAPS IN THE OFFICE OF THE COUNTY RECORDER OF ORANGE COUNTY, CALIFORNIA.

EXCEPT THE FULL RIGHTS TO ALL MINERALS, PETROLEUM, GAS AND OTHER HYDROCARBON SUBSTANCES EXISTING BELOW FIVE HUNDRED (500) FEET

FROM THE SURFACE OF SAID REAL PROPERTY DESCRIBED ABOVE,

PROVIDED, HOWEVER, THAT GRANTOR HEREBY EXPRESSLY WAIVES THE

RIGHT TO ENTER UPON THE SURFACE OF SAID REAL PROPERTY FOR THE

PURPOSE OF EXPLORING FOR, OR PRODUCING THE MINERALS, PETROLEUM,

GAS AND OTHER HYDROCARBON SUBSTANCES SO RESERVED IN DEED RECORDED JULY 1, 1977.
11-178

Exhibit "B"
Development Agreement
11-179

RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:

City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
Attn: City Clerk
(Space Above This Line Is for Recorder's Use Only)
This Agreement is recorded at the request and for the
benefit of the City of Newport Beach and is exempt
from the payment of a recording fee pursuant to
Government Code §§ 6103 and 27383.

DEVELOPMENT AGREEMENT
between

CITY OF NEWPORT BEACH
and

BCD NEWPORT BEACH II, LLC

CONCERNING
"THE RESIDENCES AT 1400 BRISTOL STREET"
11-180.1

DEVELOPMENT AGREEMENT
(Pursuant to California Government Code Sections 65864-65869.5) This DEVELOPMENT AGREEMENT (the "Agreement") is dated for reference purposes as of the _ day of , 2024 (the "Agreement Date"), and is being entered into by and between the City of Newport Beach ("City"), a California municipal corporation and charter city, organized and existing under and by virtue of its Charter and the Constitution, and the laws of the State of California, and BCD Newport Beach II, LLC, a Delaware limited liability corporation ("Property Owner"). City and Property Owner are sometimes collectively referred to in this Agreement as the "Parties" and individually as a "Party."

RECITALS
A. Property Owner is the owner of that certain real property located in the City of Newport Beach, County of Orange, State of California commonly referred to as 1400 Bristol Street and more particularly described in the legal description attached as Exhibit "A" and depicted on the site map attached hereto as Exhibit "B" ("Property") and has submitted an application to the City for the Development Plan, defined in Section 1 (Definitions) below to develop the Property.

The Property consists of approximately 2.38 acres and is a part of the Newport Place Planned Community shown on the City's Zoning Map.

B. To encourage investment in, and commitment to, comprehensive planning and public facilities financing, strengthen the public planning process and encourage private implementation of the local general plan, provide certainty in the approval of projects in order to avoid waste of time and resources, and reduce the economic costs of development by providing assurance to property owners that they may proceed with projects consistent with existing land use policies, rules, and regulations, the California Legislature adopted California Government Code Sections 65864-65869.5 (the "Development Agreement Statute") authorizing cities and counties to enter into development agreements with persons or entities having a legal or equitable interest in real property located within their jurisdiction.

C. On March 13, 2007, the City Council adopted Ordinance No. 2007-6, entitled "Ordinance Amending Chapter 15.45 of City of Newport Beach Municipal Code Regarding Development Agreements" (the "Development Agreement Ordinance"). This Agreement is consistent with the Development Agreement Ordinance.

D. The Parties wish to enter into Agreement for the construction of a multi -unit residential project consisting of 229 apartment units (including affordable units) atop of 422-space parking structure.

E. As detailed in Section 3 of this Agreement, Property Owner agrees to provide the following significant public benefits as consideration for this Agreement: a public benefit fee in the amount of Two Million Eight Hundred Ninety -Three Thousand Three Hundred Eighty -Three Dollars and 00/100 ($2,893,383.00), a park in -lieu fee of Five Hundred Eighty -One Thousand Two Hundred Forty -Seven Dollars and 00/100 ($581,247.00), and a public safety fee in the amount of Two Hundred Thirty -Two Thousand Five Hundred Sixty Dollars and 00/100 ($232,560.00). 11-180.2

F. This Agreement is consistent with the City of Newport Beach General Plan ("General Plan"), including without limitation the General Plan's designation of the Property as Mixed Use Horizontal 2 ("MU-112") which provides for a horizontal intermixing of uses that may include regional commercial office, multifamily residential, vertical mixed -use buildings, industrial, hotel rooms, and ancillary neighborhood commercial uses and the Newport Place Planned Community that was adopted in 1970 by Ordinance No. 1369, and amended from time to time, in order to establish appropriate zoning to regulate land use and development of property within the general boundaries of the Newport Place Planned Community.

G. In recognition of the significant public benefits that this Agreement provides, the City Council finds that this Agreement: (i) is consistent with the City of Newport Beach General Plan as of the date of this Agreement; (ii) is in the best interests of the health, safety, and general welfare of City, its residents, and the public; (iii) is entered into pursuant to, and constitutes a present exercise of, City's police power; (iv) is consistent with the Project's Addendum No. 7 to the Environmental Impact Report (SCH# 2006011119) ("PEIR") that was certified by the City Council on July 25, 2006 for the 2006 General Plan Update and the Initial Study/Negative Declaration prepared in accordance with CEQA for the Newport Beach Housing Element Update (General Plan Amendment No. GP2008-003) adopted by the City Council on November 22, 2011 (the PEIR and Initial Study/Negative Declaration are collectively referred to herein as the "PEIR"), all of which analyze the environmental effects of the proposed development of the Project on the Property, and all of the findings, conditions of approval and mitigation measures related thereto; and (v) is consistent and has been approved consistent with provisions of California Government Code Section 65867 and City of Newport Beach Municipal Code chapter 15.45.

H. On December 7, 2023, City's Planning Commission held a public hearing on this Agreement, and made findings and determinations with respect to this Agreement, and recommended to the City Council that the City Council approve this Agreement.

I. On April 9, 2024, the City Council held a public hearing on this Agreement and considered the Planning Commission's recommendations and the testimony and information submitted by City staff, Property Owner, and members of the public. On April 23, 2024, consistent with applicable provisions of the Development Agreement Statute and Development Agreement Ordinance, the City Council adopted its Ordinance No. 2024-9 (the "Adopting Ordinance"), finding this Agreement to be consistent with the City of Newport Beach General Plan and approving this Agreement.

AGREEMENT
NOW, THEREFORE, City, and Property Owner agree as follows:

Definitions.

In addition to any terms defined elsewhere in this Agreement, the following terms when used in this Agreement shall have the meanings set forth below:
"Action" shall have the meaning ascribed in Section 8.10 of this Agreement. "Adopting Ordinance" shall mean City Council Ordinance No. 2024-9 approving and adopting this Agreement.

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"Agreement" shall mean this Development Agreement, as the same may be amended from time to time.
"Agreement Date" shall mean April 23, 2024, which date is the date the City Council adopted the Adopting Ordinance.
"CE A" shall mean the California Environmental Quality Act (California Public Resources Code Sections 21000-21177) and the implementing regulations promulgated thereunder by the Secretary for Resources (California Code of Regulations, Title 14, Section 15000 et seq.) ("CEQA Guidelines"), as the same may be amended from time to time. "City" shall mean the City of Newport Beach, a California charter city. "City Council" shall mean the governing body of City.
"City's Affiliated Parties" shall have the meaning ascribed in Section 10.1 of this Agreement.
"Claim" shall have the meaning ascribed in Section 10.1 of this Agreement. "CPI Index" shall mean the Consumer Price Index published from time to time by the United States Department of Labor, Bureau of Labor Statistics for all urban consumers (all items) for the Los Angeles -Long Beach -Anaheim, California Area, All Urban Consumers, All Items, Base Period (1982-84=100), or, if such index is discontinued, such other similar index as may be publicly available that is selected by City in its reasonable discretion. "Cure Period" shall have the meaning ascribed in Section 8.1 of this Agreement. "Default" shall have the meaning ascribed to that term in Section 8.1 of this Agreement. "Develop" or "Development" shall mean to improve or the improvement of the Property for the purpose of completing the structures, improvements, and facilities comprising the Project, including but not limited to: grading; the construction of infrastructure and public facilities related to the Project, whether located within or outside the Property; the construction of all of the private improvements and facilities comprising the Project; the preservation or restoration, as required of natural and man-made or altered open space areas; and the installation of landscaping. The terms "Develop" and "Development," as used herein, do not include the maintenance, repair, reconstruction, replacement, or redevelopment of any structure, improvement, or facility after the initial construction and completion thereof.
"Development Agreement Ordinance" shall mean Chapter 15.45 of the City of Newport Beach Municipal Code.
"Development Agreement Statute" shall mean California Government Code Sections 65864-65869.5, inclusive.
"Development Exactions" shall mean any requirement of City in connection with or pursuant to any ordinance, resolution, rule, or official policy for the dedication of land, the construction or installation of any public improvement or facility, or the payment of any fee or 3 11-180.4

charge in order to lessen, offset, mitigate, or compensate for the impacts of Development of the Project on the environment or other public interests.
"Development Plan" shall mean all of the land use entitlements, approvals and permits approved by the City for the Project on or before the Agreement Date, as the same may be amended from time to time consistent with this Agreement. Such land use entitlements, approvals and permits include, without limitation, the following: (1) the Development rights as provided under this Agreement; (2) the amendment to the Newport Place Planned Community (PC-11) adopted pursuant to Ordinance No. 1369 and as amended by Ordinance No. 2024-8; (3) General Plan Amendment adopted pursuant to Resolution No. 2024-23; (4) Site Development Review adopted pursuant to Resolution No. 2024-23; (5) Affordable Housing Implementation Plan adopted pursuant to Resolution No. 2024-23; and Traffic Study adopted pursuant to Resolution No. 2024-

23. "Development Regulations" shall mean the following regulations as they are in effect as of the Agreement Date and to the extent they govern or regulate the development of the Property, but excluding any amendment or modification to the Development Regulations adopted, approved, or imposed after the Agreement Date that impairs or restricts the Property Owner's rights set forth in this Agreement, unless such amendment or modification is expressly authorized by this Agreement or is agreed to by the Property Owner in writing: the General Plan, the Development Plan, and, to the extent not expressly superseded by the Development Plan or this Agreement, all other land use and subdivision regulations governing the permitted uses, density and intensity of use, design, improvement, and construction standards and specifications, procedures for obtaining required City permits and approvals for development, and similar matters that may apply to development of the Project on the Property during the Term of this Agreement that are set forth in Title 15 of the Municipal Code (buildings and construction), Title 19 of the Municipal Code (subdivisions) and Title 20 of the Municipal Code (planning and zoning), but specifically excluding all other sections of the Municipal Code, including without limitation Title 5 of the Municipal Code (business licenses and regulations). Notwithstanding the foregoing, the term "Development Regulations," as used herein, does not include any City ordinance, resolution, code, rule, regulation or official policy governing any of the following: (i) the conduct of businesses, professions, and occupations; (ii) taxes and assessments; (iii) the control and abatement of nuisances; (iv) the granting of encroachment permits and the conveyance of rights and interests which provide for the use of or entry upon public property; or (v) the exercise of the power of eminent domain.
"Effective Date" shall mean the latest of the following dates, as applicable: (i) the date that is thirty (30) days after the Agreement Date; (ii) if a referendum concerning the Adopting Ordinance, the Development Plan, or any of the Development Regulations approved on or before the Agreement Date is timely qualified for the ballot and a referendum election is held concerning the Adopting Ordinance or any of such Development Regulations, the date on which the referendum is certified resulting in upholding and approving the Adopting Ordinance and the Development Regulations; or (iii) if a lawsuit is timely filed challenging the validity of the Adopting Ordinance, this Agreement, and/or any of the Development Regulations approved on or before the Agreement Date, the date on which said challenge is finally resolved in favor of the validity or legality of the Adopting Ordinance, this Agreement, the Development Plan and/or the applicable Development Regulations, which such finality is achieved by a final non -appealable judgment, voluntary or involuntary dismissal (and the passage of any time required to appeal an 4 11-180.5

involuntary dismissal), or binding written settlement agreement. Promptly after the Effective Date occurs, the Parties agree to cooperate in causing an appropriate instrument to be executed and recorded against the Property memorializing the Effective Date. "Environmental Laws" means all federal, state, regional, county, municipal, and local laws, statutes, ordinances, rules, and regulations which are in effect as of the Agreement Date, and all federal, state, regional, county, municipal, and local laws, statutes, rules, ordinances, rules, and regulations which may hereafter be enacted and which apply to the Property or any part thereof, pertaining to the use, generation, storage, disposal, release, treatment, or removal of any Hazardous Substances, including without limitation the following: the Comprehensive Environmental Response Compensation and Liability Act of 1980, 42 U.S.C. Sections 9601, et SeMc ., as amended ("CERCLA"); the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976, 42 U.S.C. Sections 6901, et SeMc ., as amended ("RCRA"); the Emergency Planning and Community Right to Know Act of 1986, 42 U.S.C. Sections 11001 et seq., as amended; the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et SeMc ., as amended; the Clean Air Act, 42 U.S.C. Sections 7401 et seq., as amended; the Clean Water Act, 33 U.S.C. Section 1251, et SeMc ., as amended; the Toxic Substances Control Act, 15 U.S.C.

Sections 2601 et sgq., as amended; the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. Sections 136 et seq., as amended; the Federal Safe Drinking Water Act, 42 U.S.C. Sections 300f et seq., as amended; the Federal Radon and Indoor Air Quality Research Act, 42 U.S.C.

Sections 7401 et seq., as amended; the Occupational Safety and Health Act, 29 U.S.C. Sections 651 et seq., as amended; and California Health and Safety Code Section 25100, et SeMc . "General Plan" shall mean City's 2006 General Plan adopted by the City Council on July 25, 2006, by Resolution No. 2006-76, as amended through the Agreement Date but excluding any amendment after the Agreement Date that impairs or restricts the Property Owner's rights set forth in this Agreement, unless such amendment is expressly authorized by this Agreement or is specifically agreed to by the Property Owner. The Land Use Plan of the Land Use Element of the General Plan was approved by City voters in a general election on November 7, 2006. "Hazardous Substances" means any toxic substance or waste, pollutant, hazardous substance or waste, contaminant, special waste, industrial substance or waste, petroleum or petroleum -derived substance or waste, or any toxic or hazardous constituent or additive to or breakdown component from any such substance or waste, including without limitation any substance, waste, or material regulated under or defined as "hazardous" or "toxic" under any Environmental Law.
"Mortgage" shall mean a mortgage, deed of trust, sale and leaseback arrangement, or any other form of conveyance in which the Property, or a part or interest in the Property, is pledged as security and contracted for in good faith and for fair value. "Mortgagee" shall mean the holder of a beneficial interest under a Mortgage or any successor or assignee of the Mortgagee.
"Notice of Default" shall have the meaning ascribed in Section 8.1 of this Agreement. "Party" or "Parties" shall mean City and/or Property Owner as determined by the context. [11
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"Project" shall mean the demolition of two existing office buildings and development of 229 apartment units and 422-space parking structure including all on -site and off -site improvements that Property Owner is authorized and/or may be required to construct on the Property, as provided in this Agreement and the Development Regulations, as the same may be modified or amended from time to time consistent with this Agreement and applicable law. "Property" is described in Exhibit "A" and generally depicted on Exhibit `B". "Property Owner" shall mean BCD Newport Beach II, LLC, a Delaware limited liability corporation and any successor or assignee to all or any portion of the right, title, and interest in and to ownership of all or a portion of the Property.
"Public Benefit Fee" shall have the meaning ascribed in Section 3.1 of this Agreement. "Subsequent Development Approvals" shall mean all discretionary development and building approvals that Property Owner is permitted to obtain to Develop the Project on and with respect to the Property after the Agreement Date consistent with the Development Regulations. "Term" shall have the meaning ascribed in Section 2.4 of this Agreement. "Termination Date" and "Lot Termination Date" shall have the meaning ascribed in Section 2.4 of this Agreement.
"Transfer" shall have the meaning ascribed in Section 11 of this Agreement.

2. General Provisions.

2.1 Plan Consistencv. Zonina Implementation.

This Agreement and the Development Regulations applicable to the Property are consistent with the General Plan and the Newport Place Planned Community Development Plan (PC-11) as amended by the approvals in the Development Plan adopted concurrently herewith (including but not limited to the amendment to the General Plan and Newport Place Planned Community Development Plan (PC-11).

2.2 Binding Effect of Agreement.

The Property is hereby made subject to this Agreement. Development of the Property is hereby authorized and shall be carried out in accordance with the terms of this Agreement.

2.3 Property Owner's Representations and Warranties Regarding Ownership of the Property and Related Matters Pertaining to this Agreement.

Property Owner and each person executing this Agreement on behalf of Property Owner hereby represents and warrants to City as follows: (i) that Property Owner is the owner of the fee simple title of the Property; (ii) if Property Owner or any co-owner comprising Property Owner is a legal entity and that such entity is duly formed and existing and is authorized to do business in the State of California; (iii) if Property Owner or any co-owner comprising Property Owner is a natural person that such natural person has the legal right and capacity to execute this Agreement; 3 11-180.7

(iv) that all actions required to be taken by all persons and entities comprising Property Owner to enter into this Agreement have been taken and that Property Owner has the legal authority to enter into this Agreement; (v) Property Owner's entering into and performing its obligations set forth in this Agreement will not result in a violation of any obligation, contractual or otherwise, that Property Owner or any person or entity comprising Property Owner has to any third party; (vi) that neither Property Owner nor any co-owner comprising Property Owner is the subject of any voluntary or involuntary petition in bankruptcy; and (vi) Property Owner has the authority and ability to enter into or perform any of its obligations set forth in this Agreement.

2.4 Term.

The term of this Agreement (the "Term" shall commence on the Effective Date and continue until 20_, unless otherwise terminated or modified pursuant to its terms.

Notwithstanding any other provision set forth in this Agreement to the contrary, if any Party reasonably determines that the Effective Date will not occur because (i) the Adopting Ordinance or any of the Development Regulations approved on or before the Agreement Date for the Project has/have been disapproved by City's voters at a referendum election or (ii) a final non - appealable judgment is entered in a judicial action challenging the validity or legality of the Adopting Ordinance, this Agreement, and/or any of the Development Regulations for the Project approved on or before the Agreement Date such that this Agreement and/or any of such Development Regulations is/are invalid and unenforceable in whole or in such a substantial part that the judgment substantially impairs such Party's rights or substantially increases its obligations or risks hereunder or thereunder, then such Party, in its sole and absolute discretion, shall have the right to terminate this Agreement upon delivery of a written notice of termination to the other Party, in which event neither Party shall have any further rights or obligations hereunder except that Property Owner's indemnity obligations set forth in Article 10 shall remain in full force and effect and shall be enforceable, and the Development Regulations applicable to the Project and the Property only (but not those general Development Regulations applicable to other properties in the City) shall be repealed by the City after delivery of said notice of termination except for the Development Regulations that have been disapproved by City's voters at a referendum election and, therefore, never took effect.

The Termination Date shall be the earliest of the following dates: (i) the tenth (10`") anniversary of the Effective Date; (ii) such earlier date that this Agreement may be terminated in accordance with Article 5 and/or Section 8.3 of this Agreement and/or Sections 65865.1 and/or 65868 of the Development Agreement Statute; or (iii) completion of the Project in accordance with the terms of this Agreement, including Property Owner's complete satisfaction, performance, and payment, as applicable, of all Development Exactions, the issuance of all required final occupancy permits, and acceptance by City or applicable public agency(ies) or private entity(ies) of all required offers of dedication.

Notwithstanding any other provision set forth in this Agreement to the contrary, the provisions set forth in Article 10 and Section 14.11 (as well as any other Property Owner obligations set forth in this Agreement that are expressly written to survive the Termination Date) shall survive the Termination Date of this Agreement.
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3. Public Benefits.

3.1 Public Benefit Fee.

As consideration for City's approval and performance of its obligations set forth in this Agreement, Property Owner shall pay to City a fee that shall be in addition to any other fee or charge to which the Property and the Project would otherwise be subject to (herein, the "Public Benefit Fee") in the total sum of Two Million Eight Hundred Ninety -Three Thousand Three Hundred Eighty -Three Dollars and 00/100 ($2,893,383.00) which shall be due and payable prior to the issuance of the first building permit for any portion of the Project.

The City has not designated a specific project or purpose for the Public Benefit Fee.

Property Owner acknowledges by its approval and execution of this Agreement that it is voluntarily agreeing to pay the Public Benefit Fee and that its obligation to pay the Public Benefit Fee is an essential term of this Agreement and is not severable from City's obligations and Property Owner's vested rights to be acquired hereunder, and that Property Owner expressly waives any constitutional, statutory, or common law right it might have in the absence of this Agreement to protest or challenge the payment of the Public Benefits identified in this Section 3.1 on any ground whatsoever, including without limitation pursuant to the Fifth and Fourteenth Amendments to the United States Constitution, California Constitution Article I Section 19, the Mitigation Fee Act (California Government Code Section 66000 et seq.), or otherwise. In addition to any other remedy set forth in this Agreement for Property Owner's default, if Property Owner shall fail to timely pay any portion of the Public Benefits identified in this Section 3.1 when due, City shall have the right to withhold issuance of any further building permits, occupancy permits, or other development or building permits for the Project.

3.2 Consumer Price Index (,CPI) Increases. Any fee provided in this Article 3 (Public Benefits) shall be increased based upon percentage increases in the CPI Index as provided herein.

The first CPI adjustment shall occur on the first anniversary of the City Council's adoption of the Adopting Ordinance (the first "Adjustment Date") and subsequent CPI adjustments shall occur on each anniversary of the first Adjustment Date thereafter until expiration of the Term of this Agreement (each, an "Adjustment Date"). The amount of the CPI adjustment on the applicable Adjustment Date shall in each instance be calculated based on the then most recently available CPI Index figures such that, for example, if the Effective Date of this Agreement falls on July 1 and the most recently available CPI Index figure on the first Adjustment Date (January 1 of the following year) is the CPI Index for November of the preceding year, the percentage increase in the CPI Index for that partial year (a 6-month period) shall be calculated by comparing the CPI Index for November of the preceding year with the CPI Index for May of the preceding year (a 6- month period). In no event, however, shall application of the CPI Index reduce the amount of the Public Benefit Fee (or unpaid portion thereof) below the amount in effect prior to any applicable Adjustment Date.

3.2 Other Public Benefits.

3.2.1 In addition to the Public Benefit Fee, the direct and indirect benefits City shall receive pursuant to this Development Agreement are as follows:
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3.2.2 Park In -Lieu Fee. The Property Owner shall pay a park land dedication in -lieu fee pursuant to the City General Plan Land Use Policy 6.15.13 in the amount of Five Hundred Eighty -One Thousand Two Hundred Forty -Seven Dollars and 00/100 ($581,247.00), for the purpose of acquisition and improvement of other properties as parklands to serve the Airport Area (the "Park In -Lieu Fee"). The Park In -Lieu Fee shall be due and payable prior to the issuance of the first building permit for any portion of the Project.

3.2.3 Public Safety. The Property Owner shall pay a public safety fee in the amount of Two Hundred Thirty -Two Thousand Five Hundred Sixty Dollars and 00/100 ($232,560.00) to be used, at the City's discretion, to fund the cost of staffing, services, and equipment necessary for fire related public safety purposes (the "Public Safety"). The Public Safety Fee shall be due and payable prior to the issuance of the first building permit for any portion of the Project.

3.2.4 Apportionment of Fees. Property Owner and City hereby acknowledge and agree that the amounts of the Public Benefit Fee (Section 3.1), Park In -Lieu Fee (Section 3.2.2), and Public Safety Fee (Section 3.2.3) assessed herein are predicated on the Project being developed as a 229- unit residential development project. In the event Property Owner submits a building permit application for the Project that includes fewer residential units, the amounts owed by Property Owner to City for the Public Benefit Fee, Park In -Lieu Fee, and Public Safety Fee shall each be reduced on a proportional basis.

4. Development of Project.

4.1 Applicable Regulations; Property Owner's Vested Rights and City's Reservation of Discretion With Respect to Subsequent Development Approvals.

Other than as expressly set forth in this Agreement, during the Term of this Agreement, (i) Property Owner shall have the vested right to Develop the Project on and with respect to the Property in accordance with the terms of the Development Regulations and this Agreement and (ii) City shall not prohibit or prevent development of the Property on grounds inconsistent with the Development Regulations or this Agreement. Notwithstanding the foregoing, nothing herein is intended to limit or restrict City's discretion with respect to (i) review and approval requirements contained in the Development Regulations, (ii) exercise of any discretionary authority City retains under the Development Regulations, (iii) the approval, conditional approval, or denial of any Subsequent Development Approvals applied for by Property Owner, if any, or that are required, for Development of the Project as of the Agreement Date provided that all such actions are consistent with the Development Regulations, or (iv) any environmental approvals that may be required under CEQA or any other federal or state law or regulation in conjunction with any Subsequent Development Approvals that may be required for the Project, and in this regard, as to future actions referred to in clauses (i)-(iv) of this sentence, City reserves its full discretion to the same extent City would have such discretion in the absence of this Agreement. In addition, it is understood and agreed that nothing in this Agreement is intended to vest Property Owner's rights with respect to any laws, regulations, rules, or official policies of any other governmental agency or public utility company with jurisdiction over the Property or the Project; or any applicable federal or state laws, regulations, rules, or official policies that may be inconsistent with this Agreement and that override or supersede the provisions set forth in this Agreement, and regardless of whether such overriding or superseding laws, regulations, rules, or official policies are adopted or applied to the Property or the Project prior or subsequent to the Agreement Date. 9 11-180.10

Property Owner has expended and will continue to expend substantial amounts of time and money in the planning and entitlement process to permit Development of the Project in the future.

Property Owner represents and City acknowledges that Property Owner would not make these expenditures without this Agreement, and that Property Owner is and will be making these expenditures in reasonable reliance upon obtaining vested rights to Develop the Project as set forth in this Agreement.

Property Owner may apply to City for permits or approvals necessary to modify or amend the Development specified in the Development Regulations, provided that unless this Agreement also is amended, the request does not propose an increase in the maximum density, intensity, height, or size of proposed structures, or a change in use that generates more peak hour traffic or more daily traffic. In addition, Property Owner may apply to City for approval of minor amendments to existing tentative tract maps, tentative parcel maps, or associated conditions of approval, consistent with City of Newport Beach Municipal Code Section 19.12.090. This Agreement does not constitute a promise or commitment by City to approve any such permit or approval, or to approve the same with or without any particular requirements or conditions, and City's discretion with respect to such matters shall be the same as it would be in the absence of this Agreement.

4.2 No Conflicting Enactments.

Except to the extent City reserves its discretion as expressly set forth in this Agreement, during the Term of this Agreement City shall not apply to the Project or the Property any ordinance, policy, rule, regulation, or other measure relating to Development of the Project that is enacted or becomes effective after the Agreement Date to the extent it conflicts with this Agreement. This Section 4.2 shall not restrict City's ability to enact an ordinance, policy, rule, regulation, or other measure applicable to the Project pursuant to California Government Code Section 65866 consistent with the procedures specified in Section 4.3 of this Agreement. In Pardee Construction Co. v. City of Camarillo (1984) 37 Cal.3d 465, the California Supreme Court held that a construction company was not exempt from a city's growth control ordinance even though the city and construction company had entered into a consent judgment (tantamount to a contract under California law) establishing the company's vested rights to develop its property consistent with the zoning. The California Supreme Court reached this result because the consent judgment failed to address the timing of development. The Parties intend to avoid the result of the Pardee case by acknowledging and providing in this Agreement that Property Owner shall have the vested right to Develop the Project on and with respect to the Property at the rate, timing, and sequencing that Property Owner deems appropriate within the exercise of Property Owner's sole subjective business judgment, provided that such Development occurs in accordance with this Agreement and the Development Regulations, notwithstanding adoption by City's electorate of an initiative to the contrary after the Agreement Date. No City moratorium or other similar limitation relating to the rate, timing, or sequencing of the Development of all or any part of the Project and whether enacted by initiative or another method, affecting subdivision maps, building permits, occupancy certificates, or other entitlement to use, shall apply to the Project to the extent such moratorium or other similar limitation restricts Property Owner's vested rights in this Agreement or otherwise conflicts with the express provisions of this Agreement. 10 11-180.11

4.3 Reservations of Authoritv.

Notwithstanding any other provision set forth in this Agreement to the contrary, the laws, rules, regulations, and official policies set forth in this Section 4.3 shall apply to and govern the Development of the Project on and with respect to the Property.

4.3.1 Procedural Regulations. Procedural regulations relating to hearing bodies, petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals, and any other matter of procedure shall apply to the Property, provided that such procedural regulations are adopted and applied City-wide or to all other properties similarly situated in City.

4.3.2 Processing and Permit Fees. City shall have the right to charge and Property Owner shall be required to pay all applicable processing and permit fees to cover the reasonable cost to City of processing and reviewing applications and plans for any required Subsequent Development Approvals, building permits, excavation and grading permits, encroachment permits, and the like, for performing necessary studies and reports in connection therewith, inspecting the work constructed or installed by or on behalf of Property Owner, and monitoring compliance with any requirements applicable to Development of the Project, all at the rates in effect at the time fees are due.

4.3.3 Consistent Future City Regulations. City ordinances, resolutions, regulations, and official policies governing Development which do not conflict with the Development Regulations, or with respect to such regulations that do conflict, where Property Owner has consented in writing to the regulations, shall apply to the Property.

4.3.4 Development Exactions Applicable to Property. During the Term of this Agreement, Property Owner shall be required to satisfy and pay all Development Exactions at the time performance or payment is due to the same extent and in the same amount(s) that would apply to Property Owner and the Project in the absence of this Agreement; provided, however, that to the extent the scope and extent of a particular Development Exaction (excluding any development impact fee) for the Project has been established and fixed by City in the conditions of approval for any of the Development Regulations approved on or before the Agreement Date, City shall not alter, increase, or modify said Development Exaction in a manner that is inconsistent with such Development Regulations without Property Owner's prior written consent or as may be otherwise required pursuant to overriding federal or state laws or regulations (Section 4.3.5 hereinbelow). In addition, nothing in this Agreement is intended or shall be deemed to vest Property Owner against the obligation to pay any of the following (which are not included within the definition of "Development Exactions") in the full amount that would apply in the absence of this Agreement:
(i) City's normal fees for processing, environmental assessment and review, tentative tract and parcel map review, plan checking, site review and approval, administrative review, building permit, grading permit, inspection, and similar fees imposed to recover City's costs associated with processing, reviewing, and inspecting project applications, plans, and specifications; (ii) fees and charges levied by any other public agency, utility, district, or joint powers authority, regardless of whether City collects those fees and charges; or (iii) community facility district special taxes or special district assessments or similar assessments, business license fees, bonds or other security required for public improvements, transient occupancy taxes, sales taxes, property taxes, sewer lateral connection fees, water service connection fees, new water meter fees, and the Property Development Tax payable under Chapter 3.12 of City's Municipal Code. 11 11-180.12

4.3.5 Overriding Federal and State Laws and Regulations. Federal and state laws and regulations that override Property Owner's vested rights set forth in this Agreement shall apply to the Property, together with any City ordinances, resolutions, regulations, and official policies that are necessary to enable City to comply with the provisions of any such overriding federal or state laws and regulations, provided that (i) Property Owner does not waive its right to challenge or contest the validity of any such purportedly overriding federal, state, or City law or regulation; and (ii) upon the discovery of any such overriding federal, state, or City law or regulation that prevents or precludes compliance with any provision of this Agreement, City or Property Owner shall provide to the other Party a written notice identifying the federal, state, or City law or regulation, together with a copy of the law or regulation and a brief written statement of the conflict(s) between that law or regulation and the provisions of this Agreement. Promptly thereafter City and Property Owner shall meet and confer in good faith in a reasonable attempt to determine whether a modification or suspension of this Agreement, in whole or in part, is necessary to comply with such overriding federal, state, or City law or regulation. In such negotiations, City and Property Owner agree to preserve the terms of this Agreement and the rights of Property Owner as derived from this Agreement to the maximum feasible extent while resolving the conflict. City agrees to cooperate with Property Owner at no cost to City in resolving the conflict in a manner which minimizes any financial impact of the conflict upon Property Owner. City also agrees to process in a prompt manner Property Owner's proposed changes to the Project and any of the Development Regulations as may be necessary to comply with such overriding federal, state, or City law or regulation; provided, however, that the approval of such changes by City shall be subject to the discretion of City, consistent with this Agreement.

4.3.6 Public Health and Safety. Any City ordinance, resolution, rule, regulation, program, or official policy that is necessary to protect persons on the Property or in the immediate vicinity from conditions dangerous to their health or safety, as reasonably determined by City, shall apply to the Property, even though the application of the ordinance, resolution, rule regulation, program, or official policy would result in the impairment of Property Owner's vested rights under this Agreement.

4.3.7 Uniform Building Standards. Existing and future building and building - related standards set forth in the uniform codes adopted and amended by City from time to time, including building, plumbing, mechanical, electrical, housing, swimming pool, and fire codes, and any modifications and amendments thereof shall all apply to the Project and the Property to the same extent that the same would apply in the absence of this Agreement.

4.3.8 Public Works Improvements. To the extent Property Owner constructs or installs any public improvements, works, or facilities, the City standards in effect for such public improvements, works, or facilities at the time of City's issuance of a permit, license, or other authorization for construction or installation of same shall apply.

4.3.9 No Guarantee or Reservation of Utility Capacity. Notwithstanding any other provision set forth in this Agreement to the contrary, nothing in this Agreement is intended or shall be interpreted to require City to guarantee or reserve to or for the benefit of Property Owner or the Property any utility capacity, service, or facilities that may be needed to serve the Project, whether domestic or reclaimed water service, sanitary sewer transmission or wastewater treatment capacity, downstream drainage capacity, or otherwise, and City shall have the right to limit or restrict Development of the Project if and to the extent that City reasonably determines that 12 11-180.13

inadequate utility capacity exists to adequately serve the Project at the time Development is scheduled to commence.

5. Amendment or Cancellation of Agreement. This Agreement may be amended or canceled in whole or in part only by mutual written and executed consent of the Parties in compliance with California Government Code Section 65868 and Newport Beach Municipal Code Section

15.45.070 or by unilateral termination by City in the event of an uncured default of Property Owner.

6. Enforcement. Unless this Agreement is amended, canceled, modified, or suspended as authorized herein or pursuant to California Government Code Section 65869.5, this Agreement shall be enforceable by either Party despite any change in any applicable general or specific plan, zoning, subdivision, or building regulation or other applicable ordinance or regulation adopted by City (including by City's electorate) that purports to apply to any or all of the Property.

7. Annual Review of Property Owner's Compliance With Agreement.

7.1 General.

City shall review this Agreement once during every twelve (12) month period following the Effective Date for compliance with the terms of this Agreement as provided in Government Code Section 65865.1. Property Owner (including any successor to the Property Owner executing this Agreement on or before the Agreement Date) shall pay City a reasonable fee in an amount City may reasonably establish from time to time to cover the actual and necessary costs for the annual review. City's failure to timely provide or conduct an annual review shall not constitute a Default hereunder by City.

7.2 Property Owner's Obligation to Demonstrate Good Faith Compliance.

During each annual review by City, Property Owner is required to demonstrate good faith compliance with the terms of the Agreement. Property Owner agrees to furnish such evidence of good faith compliance as City, in the reasonable exercise of its discretion, may require, thirty (30) days prior to each anniversary of the Effective Date during the Term.

7.3 Procedure. The Zoning Administrator shall conduct a duly noticed hearing and shall determine, on the basis of substantial evidence, whether or not Property Owner has, for the period under review, complied with the terms of this Agreement. If the Zoning Administrator finds that Property Owner has so complied, the annual review shall be concluded. If the Zoning Administrator finds, on the basis of substantial evidence, that Property Owner has not so complied, written notice shall be sent to Property Owner by first class mail of the Zoning Administrator's finding of non-compliance, and Property Owner shall be given at least ten (10) calendar days to cure any noncompliance that relates to the payment of money and thirty (30) calendar days to cure any other type of noncompliance. If a cure not relating to the payment of money cannot be completed within thirty (30) calendar days for reasons which are beyond the control of Property Owner, Property Owner must commence the cure within such thirty (30) calendar days and diligently pursue such cure to completion. If Property Owner fails to cure such noncompliance within the time(s) set forth above, such failure shall be considered to be a Default and City shall be entitled to exercise the remedies set forth in Article 8 below. 13 11-180.14

7.4 Annual Review a Non -Exclusive Means for Determining and Requiring Cure of Property Owner's Default.

The annual review procedures set forth in this Article 7 shall not be the exclusive means for City to identify a Default by Property Owner or limit City's rights or remedies for any such Default.

8. Events of Default.

8.1 General Provisions. In the event of any material default, breach, or violation of the terms of this Agreement ("Default"), the Party alleging a Default shall deliver a written notice (each, a "Notice of Default") to the defaulting Party. The Notice of Default shall specify the nature of the alleged Default and a reasonable manner and sufficient period of time (ten (10) calendar days if the Default relates to the failure to timely make a monetary payment due hereunder and not less than thirty (30) calendar days in the event of non -monetary Defaults) in which the Default must be cured ("Cure Period"). During the Cure Period, the Party charged shall not be considered in Default for the purposes of termination of this Agreement or institution of legal proceedings. If the alleged Default is cured within the Cure Period, then the Default thereafter shall be deemed not to exist. If a non -monetary Default cannot be cured during the Cure Period with the exercise of commercially reasonable diligence, the defaulting Party must promptly commence to cure as quickly as possible, and in no event later than thirty (30) calendar days after it receives the Notice of Default, and thereafter diligently pursue said cure to completion. Notwithstanding the foregoing, the City is not required to give Property Owner notice of default and may immediately pursue remedies for a Property Owner Default that result in an immediate threat to public health, safety or welfare.

8.2 Default by Property Owner.

If Property Owner is alleged to have committed a non -monetary Default and it disputes the claimed Default, it may make a written request for an appeal hearing before the City Council within ten (10) days of receiving the Notice of Default, and a public hearing shall be scheduled at the next available City Council meeting to consider Property Owner's appeal of the Notice of Default.

Failure to appeal a Notice of Default to the City Council within the ten (10) day period shall waive any right to a hearing on the claimed Default. If Property Owner's appeal of the Notice of Default is timely and in good faith but after a public hearing of Property Owner's appeal the City Council concludes that Property Owner is in Default as alleged in the Notice of Default, the accrual date for commencement of the thirty (30) day Cure Period provided in Section 8.1 shall be extended until the City Council's denial of Property Owner's appeal is communicated to Property Owner in writing.

8.3 City's Option to Terminate Agreement.

In the event of an alleged Property Owner Default, City may not terminate this Agreement without first delivering a written Notice of Default and providing Property Owner with the opportunity to cure the Default within the Cure Period, as provided in Section 8.1, and complying with Section 8.2 if Property Owner timely appeals any Notice of Default. A termination of this Agreement by City shall be valid only if good cause exists and is supported by evidence presented to the City Council at or in connection with a duly noticed public hearing to establish the existence 14 11-180.15

of a Default. The validity of any termination may be judicially challenged by Property Owner.

Any such judicial challenge must be brought within thirty (30) days of service on Property Owner, by first class mail, postage prepaid, of written notice of termination by City or a written notice of City's determination of an appeal of the Notice of Default as provided in Section 8.2.

8.4 Default by City.

If Property Owner alleges a City Default and alleges that the City has not cured the Default within the Cure Period, Property Owner may pursue any equitable remedy available to it under this Agreement, including, without limitation, an action for a writ of mandamus, injunctive relief, or specific performance of City's obligations set forth in this Agreement. Upon a City Default, any resulting delays in Property Owner's performance hereunder shall neither be a Property Owner Default nor constitute grounds for termination or cancellation of this Agreement by City and shall, at Property Owner's option (and provided Property Owner delivers written notice to City within thirty (30) days of the commencement of the alleged City Default), extend the Term for a period equal to the length of the delay.

8.5 Waiver.

Failure or delay by either Party in delivering a Notice of Default shall not waive that Party's right to deliver a future Notice of Default of the same or any other Default.

8.6 Specific Performance Remedy.

Due to the size, nature, and scope of the Project, it will not be practical or possible to restore the Property to its pre-existing condition once implementation of this Agreement has begun. After such implementation, both Property Owner and City may be foreclosed from other choices they may have had to plan for the development of the Property, to utilize the Property or provide for other benefits and alternatives. Property Owner and City have invested significant time and resources and performed extensive planning and processing of the Project in agreeing to the terms of this Agreement and will be investing even more significant time and resources in implementing the Project in reliance upon the terms of this Agreement. It is not possible to determine the sum of money which would adequately compensate Property Owner or City for such efforts. For the above reasons, City and Property Owner agree that damages would not be an adequate remedy if either City or Property Owner fails to carry out its obligations under this Agreement. Therefore, specific performance of this Agreement is necessary to compensate Property Owner if City fails to carry out its obligations under this Agreement or to compensate City if Property Owner fails to carry out its obligations under this Agreement.

8.7 Monetary Damages.

The Parties agree that monetary damages shall not be an available remedy for either Party for a Default hereunder by the other Party; provided, however, that (i) nothing in this Section 8.7 is intended or shall be interpreted to limit or restrict City's right to recover the Public Benefit Fees due from Property Owner as set forth herein; and (ii) nothing in this Section 8.7 is intended or shall be interpreted to limit or restrict Property Owner's indemnity obligations set forth in Article 10 or the right of the prevailing Party in any Action to recover its litigation expenses, as set forth in Section 8.10. In no event shall damages be awarded against the City upon an event of default or upon termination of this Agreement. Property Owner expressly agrees that the City, any City 15 11-180.16

agencies and their respective elected and appointed councils, boards, commissions, officers, agents, employees, volunteers and representatives (collectively, for purposes of this Section 8.7, "City") shall not be liable for any monetary damage for a Default by the City or any claims against City arising out of this Agreement. Property Owner hereby expressly waives any such monetary damages against the City. The sole and exclusive judicial remedy for Property Owner in the event of a Default by the City shall be an action in mandamus, specific performance, or other injunctive or declaratory relief.

8.8 Additional City Remedy for Property Owner's Default.

In the event of any Default by Property Owner, in addition to any other remedies which may be available to City, whether legal or equitable, City shall be entitled to receive and retain any Development Exactions applicable to the Project or the Property, including any fees, grants, dedications, or improvements to public property which it may have received prior to Property Owner's Default without recourse from Property Owner or its successors or assigns.

8.9 No Personal Liability of City Officials, Employees, or Agents.

No City official, employee, or agent shall have any personal liability hereunder for a Default by City of any of its obligations set forth in this Agreement.

8.10 Recovery of Legal Expenses by Prevailing Party in Any Action.

In any judicial proceeding, arbitration, or mediation (collectively, an "Action") between the Parties that seeks to enforce the provisions of this Agreement or arises out of this Agreement, the prevailing Party shall not recover any of its costs and expenses, regardless of whether they would be recoverable under California Code of Civil Procedure Section 1033.5 or California Civil Code Section 1717 in the absence of this Agreement. These costs and expenses include, but are not limited to, court costs, expert witness fees, attorneys' fees, City staff costs (including overhead), and costs of investigation and preparation before initiation of the Action.

9. Force Majeure.

Neither Party shall be deemed to be in Default where failure or delay in performance of any of its obligations under this Agreement is caused, through no fault of the Party whose performance is prevented or delayed, by floods, earthquakes, other acts of God, fires, wars, riots or similar hostilities, strikes or other labor difficulties, state or federal regulations, or court actions.

Except as specified above, nonperformance shall not be excused because of the act or omission of a third person. In no event shall the occurrence of an event of force majeure operate to extend the Term of this Agreement. In addition, in no event shall the time for performance of a monetary obligation, including without limitation Property Owner's obligation to pay Public Benefit Fees, be extended pursuant to this Section.

10. Indemnity Oblieations of Pronertv Owner.

10.1 Indemnity Arising From Acts or Omissions of Property Owner.

Property Owner shall indemnify, defend, and hold harmless City and City's officials, employees, agents, attorneys, and contractors (collectively, the "City's Affiliated Parties") from 16 11-180.17

and against all suits, claims, liabilities, losses, damages, penalties, obligations, and expenses (including but not limited to attorneys' fees and costs) (collectively, a "Claim") that may arise, directly or indirectly, from the acts, omissions, or operations of Property Owner or Property Owner's agents, contractors, subcontractors, agents, or employees in the course of Development of the Project or any other activities of Property Owner relating to the Property or pursuant to this Agreement. City shall have the right, in its sole discretion, to select and retain counsel to defend any Claim filed against City and/or any of City's Affiliated Parties, and Property Owner shall pay the reasonable cost for defense of any Claim. In the event either City or Developer recovers any attorneys' fees, expert witness fees, costs, interest, or other amounts from the party or parties asserting the Claim, Developer shall be entitled to retain the same (provided it has fully performed its indemnity obligations hereunder). The indemnity provisions in this Section 10.1 shall commence on the Agreement Date, regardless of whether the Effective Date occurs, and shall survive the Termination Date.

10.2 Third Party Litigation.

In addition to its indemnity obligations set forth in Section 10.1, Property Owner shall indemnify, defend, and hold harmless City and City's Affiliated Parties from and against any Claim against City or City's Affiliated Parties seeking to attack, set aside, void, or annul the approval of this Agreement, the Adopting Ordinance, any of the Development Regulations for the Project (including without limitation any actions taken pursuant to CEQA with respect thereto), any Subsequent Development Approval, or the approval of any permit granted pursuant to this Agreement. Said indemnity obligation shall include payment of attorney's fees, expert witness fees, City staff costs, and court costs. City shall promptly notify Property Owner of any such Claim and City shall cooperate with Property Owner in the defense of such Claim. If City fails to promptly notify Property Owner of such Claim, Property Owner shall not be responsible to indemnify, defend, and hold City harmless from such Claim until Property Owner is so notified and if City fails to cooperate in the defense of a Claim Property Owner shall not be responsible to defend, indemnify, and hold harmless City during the period that City so fails to cooperate or for any losses attributable thereto. City shall be entitled to retain separate counsel to represent City against the Claim and the City's defense costs for its separate counsel shall be included in Property Owner's indemnity obligation, provided that such counsel shall reasonably cooperate with Property Owner in an effort to minimize the total litigation expenses incurred by Property Owner.

In the event either City or Property Owner recovers any attorney's fees, expert witness fees, costs, interest, or other amounts from the party or parties asserting the Claim, Property Owner shall be entitled to retain the same (provided it has fully performed its indemnity obligations hereunder).

The indemnity provisions in this Section 10.2 shall commence on the Agreement Date, regardless of whether the Effective Date occurs, and shall survive the Termination Date.

10.3 Environmental Indemnity.

In addition to its indemnity obligations set forth in Section 10.1, from and after the Agreement Date, Property Owner shall indemnify, defend, and hold harmless City and City's Affiliated Parties from and against any and all Claims for personal injury or death, property damage, economic loss, statutory penalties or fines, and damages of any kind or nature whatsoever, including without limitation attorney's fees, expert witness fees, and costs, based upon or arising from any of the following: (i) the actual or alleged presence of any Hazardous Substance on or under any of the Property in violation of any applicable Environmental Law; (ii) the actual or 17 11-180.18

alleged migration of any Hazardous Substance from the Property through the soils or groundwater to a location or locations off of the Property; and (iii) the storage, handling, transport, or disposal of any Hazardous Substance on, to, or from the Property and any other area disturbed, graded, or developed by Property Owner in connection with Property Owner's Development of the Project.

The indemnity provisions in this Section 10.3 shall commence on the Agreement Date, regardless of whether the Effective Date occurs, and shall survive the Termination Date.

11. Assignment.

Property Owner shall have the right to sell, transfer, or assign (hereinafter, collectively, a "Transfer") Property Owner's interest in or fee title to the Property, in whole or in part, to any person, partnership, joint venture, firm, or corporation (which successor, as of the effective date of the Transfer, shall become the "Property Owner" under this Agreement) at any time from the Agreement Date until the Termination Date; provided, however, that no such Transfer shall violate the provisions of the Subdivision Map Act (Government Code Section 66410 et sea.) or City's local subdivision ordinance and any such Transfer shall include the assignment and assumption of Property Owner's rights, duties, and obligations set forth in or arising under this Agreement as to the Property or the portion thereof so Transferred and shall be made in strict compliance with the following conditions precedent: (i) no transfer or assignment of any of Property Owner's rights or interest under this Agreement shall be made unless made together with the Transfer of all or a part of the Property; and (ii) prior to the effective date of any proposed Transfer, Property Owner (as transferor) shall notify City, in writing, of such proposed Transfer and deliver to City a written assignment and assumption, executed in recordable form by the transferring and successor Property Owner and in a form subject to the reasonable approval of the City Attorney of City (or designee), pursuant to which the transferring Property Owner assigns to the successor Property Owner and the successor Property Owner assumes from the transferring Property Owner all of the rights and obligations of the transferring Property Owner with respect to the Property or portion thereof to be so Transferred, including in the case of a partial Transfer the obligation to perform such obligations that must be performed off of the portion of the Property so Transferred that are a condition precedent to the successor Property Owner's right to develop the portion of the Property so Transferred. Any Permitted Transferee shall have all of the same rights, benefits, duties, obligations, and liabilities of Property Owner under this Agreement with respect to the portion of, or interest in, the Property sold, transferred, and assigned to such Permitted Transferee; provided, however, that in the event of a Transfer of less than all of the Property, or interest in the Property, no such Permitted Transferee shall have the right to enter into an amendment of this Agreement that jeopardizes or impairs the rights or increases the obligations of the Property Owner with respect to the balance of the Property, without Property Owner's written consent.

Notwithstanding any Transfer, the transferring Property Owner shall continue to be jointly and severally liable to City, together with the successor Property Owner, to perform all of the transferred obligations set forth in or arising under this Agreement unless the transferring Property Owner is given a release in writing by City, which release shall be only with respect to the portion of the Property so Transferred in the event of a partial Transfer. City shall provide such a release upon the transferring Property Owner's full satisfaction of all of the following conditions: (i) the transferring Property Owner no longer has a legal or equitable interest in the portion of the Property so Transferred other than as a beneficiary under a deed of trust; (ii) the transferring Property Owner is not then in Default under this Agreement and no condition exists that with the passage of time or the giving of notice, or both, would constitute a Default hereunder; (iii) the transferring Property 11-180.19

Owner has provided City with the notice and the fully executed written and recordable assignment and assumption agreement required as set forth in the first paragraph of this Section 11; and (iv) the successor Property Owner either (A) provides City with substitute security equivalent to any security previously provided by the transferring Property Owner to City to secure performance of the successor Property Owner's obligations hereunder with respect to the Property or the portion of the Property so Transferred or (B) if the transferred obligation in question is not a secured obligation, the successor Property Owner either provides security reasonably satisfactory to City or otherwise demonstrates to City's reasonable satisfaction that the successor Property Owner has the financial resources or commitments available to perform the transferred obligation at the time and in the manner required under this Agreement and the Development Regulations for the Project.

Any determination by the City in regards to the second paragraph of Section 11 subpart (iv) (A) and/or (B) shall be documented in writing.

12. Mortgagee Rights.

12.1 Encumbrances on Property.

The Parties agree that this Agreement shall not prevent or limit Property Owner in any manner from encumbering the Property, any part of the Property, or any improvements on the Property with any Mortgage securing financing with respect to the construction, development, use, or operation of the Project.

12.2 Mortgagee Protection.

This Agreement shall be superior and senior to the lien of any Mortgage. Nevertheless, no breach of this Agreement shall defeat, render invalid, diminish, or impair the lien of any Mortgage made in good faith and for value. Any acquisition or acceptance of title or any right or interest in the Property or part of the Property by a Mortgagee (whether due to foreclosure, trustee's sale, deed in lieu of foreclosure, lease termination, or otherwise) shall be subject to all of the terms and conditions of this Agreement. Any Mortgagee who takes title to the Property or any part of the Property shall be entitled to the benefits arising under this Agreement.

12.3 Mortgagee Not Obligated.

Notwithstanding the provisions of this Section 12.3, a Mortgagee will not have any obligation or duty under the terms of this Agreement to perform the obligations of Property Owner or other affirmative covenants of Property Owner, or to guarantee this performance except that: (i) the Mortgagee shall have no right to develop the Project under the Development Regulations without fully complying with the terms of this Agreement; and (ii) to the extent that any covenant to be performed by Property Owner is a condition to the performance of a covenant by City, that performance shall continue to be a condition precedent to City's performance.

12.4 Notice of Default to Mortgagee; Right of Mortgagee to Cure.

Each Mortgagee shall, upon written request to City, be entitled to receive written notice from City of: (i) the results of the periodic review of compliance specified in Article 7 of this Agreement, and (ii) any default by Property Owner of its obligations set forth in this Agreement. 19 11-180.20

Each Mortgagee shall have a further right, but not an obligation, to cure the Default within ten (10) days after receiving a Notice of Default with respect to a monetary Default and within thirty (30) days after receiving a Notice of Default with respect to a non -monetary Default. If the Mortgagee can only remedy or cure a non -monetary Default by obtaining possession of the Property, then the Mortgagee shall have the right to seek to obtain possession with diligence and continuity through a receiver or otherwise, and to remedy or cure the non -monetary Default within thirty (30) days after obtaining possession and, except in case of emergency or to protect the public health or safety, City may not exercise any of its judicial remedies set forth in this Agreement to terminate or substantially alter the rights of the Mortgagee until expiration of the thirty (30) day period. In the case of a non -monetary Default that cannot with diligence be remedied or cured within thirty (30) days, the Mortgagee shall have additional time as is reasonably necessary to remedy or cure the Default, provided the Mortgagee promptly commences to cure the non - monetary Default within thirty (30) days and diligently prosecutes the cure to completion.

13. Bankruptcy. The obligations of this Agreement shall not be dischargeable in bankruptcy.

14. Miscellaneous Terms.

14.1 Reserved.

14.2 Notices.

Any notice or demand that shall be required or permitted by law or any provision of this Agreement shall be in writing. If the notice or demand will be served upon a Party, it either shall be personally delivered to the Party; deposited by a reliable courier service that provides a receipt showing date and time of delivery with courier charges prepaid. The notice or demand shall be addressed as follows:

TO CITY: City of Newport Beach
100 Civic Center Drive
Newport Beach, California 92660
Attn: City Manager
With a copy to: City of Newport Beach
100 Civic Center Drive
Newport Beach, California 92660
Attn: City Attorney
With a copy to:

BCD Newport Beach II, LLC
c/o The Picerne Group
5000 Birch Street, Ste. 600
Newport Beach, CA 92660
Kevin Ashe
Holland & Knight LLP
4675 MacArthur Court, Ste. 900
Newport Beach, CA 92660
20 11-180.21

Either Party may change the address stated in this Section 14.2 by delivering notice to the other Party in the manner provided in this Section 14.2, and thereafter notices to such Party shall be addressed and submitted to the new address. Notices delivered in accordance with this Agreement shall be deemed to be delivered upon the earlier of: (i) the date received or (iii) three business days after deposit in the mail as provided above.

14.3 Protect as a Private Undertaking.

Any future Development of the Project is a private undertaking. Neither Party will be acting as the agent of the other in any respect, and each Party will be an independent contracting entity with respect to the terms, covenants, and conditions set forth in this Agreement. This Agreement forms no partnership, joint venture, or other association of any kind. The only relationship between the Parties is that of a government entity regulating the Development of private property by the owner or user of the Property.

14.4 Cooperation.

Each Party shall cooperate with and provide reasonable assistance to the other Party to the extent consistent with and necessary to implement this Agreement. Upon the request of a Party at any time, the other Party shall promptly execute, with acknowledgement or affidavit if reasonably required, and file or record the required instruments and writings and take any actions as may be reasonably necessary to implement this Agreement or to evidence or consummate the transactions contemplated by this Agreement.

14.5 Estoppel Certificates.

At any time, either Party may deliver written notice to the other Party requesting that that Party certify in writing that, to the best of its knowledge: (i) this Agreement is in full force and effect and is binding on the Party; (ii) this Agreement has not been amended or modified either orally or in writing or, if this Agreement has been amended, the Party providing the certification shall identify the amendments or modifications; and (iii) the requesting Party is not in Default in the performance of its obligations under this Agreement and no event or situation has occurred that with the passage of time or the giving of Notice or both would constitute a Default or, if such is not the case, then the other Party shall describe the nature and amount of the actual or prospective Default.

The Party requested to furnish an estoppel certificate shall execute and return the certificate within thirty (30) days following receipt. Requests for the City to furnish an estoppel certificate shall include reimbursement for all administrative costs incurred by the City including reasonable attorney's fees incurred by the City in furnishing an estoppels certificate.

14.6 Rules of Construction.

The singular includes the plural; the masculine and neuter include the feminine; "shall" is mandatory; and "may" is permissive.
21 11-180.22

14.7 Time Is of the Essence.

Time is of the essence regarding each provision of this Agreement as to which time is an element.

14.8 Waiver.

The failure by a Party to insist upon the strict performance of any of the provisions of this Agreement by the other Party, and failure by a Party to exercise its rights upon a Default by the other Party, shall not constitute a waiver of that Party's right to demand strict compliance by the other Party in the future.

14.9 Counterparts.

This Agreement may be executed in two (2) or more counterparts, each of which shall be identical and may be introduced in evidence or used for any other purpose without any other counterpart, but all of which shall together constitute one (1) and the same agreement.

14.10 Entire Agreement.

This Agreement constitutes the entire agreement between the Parties and supersedes all prior agreements and understandings, both written and oral, between the Parties with respect to the subject matter addressed in this Agreement.

14.11 Severability.

The Parties intend that each and every obligation of the Parties is interdependent and interrelated with the other, and if any provision of this Agreement or the application of the provision to any Party or circumstances shall be held invalid or unenforceable to any extent, it is the intention of the Parties that the remainder of this Agreement or the application of the provision to persons or circumstances shall be rendered invalid or unenforceable. The Parties intend that neither Party shall receive any of the benefits of the Agreement without the full performance by such Party of all of its obligations provided for under this Agreement. Without limiting the generality of the foregoing, the Parties intend that Property Owner shall not receive any of the benefits of this Agreement if any of Property Owner's obligations are rendered void or unenforceable as the result of any third party litigation, and City shall be free to exercise its legislative discretion to amend or repeal the Development Regulations applicable to the Property and Property Owner shall cooperate as required, despite this Agreement, should third party litigation result in the nonperformance of Property Owner's obligations under this Agreement.

The provisions of this Section 14.11 shall apply regardless of whether the Effective Date occurs and after the Termination Date.

14.12 Construction.

This Agreement has been drafted after negotiation and revision. Both City and Property Owner are sophisticated parties who were represented by independent counsel throughout the negotiations or City and Property Owner had the opportunity to be so represented and voluntarily chose to not be so represented. City and Property Owner each agree and acknowledge that the terms of this Agreement are fair and reasonable, taking into account their respective purposes, 22 11-180.23

terms, and conditions. This Agreement shall therefore be construed as a whole consistent with its fair meaning and applicable principle or presumptions of contract construction or interpretation, if any, shall be used to construe the whole or any part of this Agreement in favor of or against either Party.

14.13 Successors and Assip-ns; Constructive Notice and Acceptance.

The burdens of this Agreement shall be binding upon, and the benefits of this Agreement shall inure to, all successors in interest to the Parties to this Agreement. All provisions of this Agreement shall be enforceable as equitable servitudes and constitute covenants running with the land. Each covenant to do or refrain from doing some act hereunder with regard to Development of the Property: (i) is for the benefit of and is a burden upon every portion of the Property; (ii) runs with the Property and each portion thereof; and (iii) is binding upon each Party and each successor in interest during its ownership of the Property or any portion thereof. Every person or entity who now or later owns or acquires any right, title, or interest in any part of the Project or the Property is and shall be conclusively deemed to have consented and agreed to every provision of this Agreement. This Section 14.13 applies regardless of whether the instrument by which such person or entity acquires the interest refers to or acknowledges this Agreement and regardless of whether such person or entity has expressly entered into an assignment and assumption agreement as provided for in Article 11.

14.14 No Third Party Beneficiaries.

The only Parties to this Agreement are City and Property Owner. This Agreement does not involve any third party beneficiaries, and it is not intended and shall not be construed to benefit or be enforceable by any other person or entity.

14.15 Annlicable Law and Venue.

This Agreement shall be construed and enforced consistent with the internal laws of the State of California, without regard to conflicts of law principles. Any action at law or in equity arising under this Agreement or brought by any Party for the purpose of enforcing, construing, or determining the validity of any provision of this Agreement shall be filed and tried in the Superior Court of the County of Orange, State of California, or the United States District Court for the Central District of California. The Parties waive all provisions of law providing for the removal or change of venue to any other court.

14.16 Section Headings.

All section headings and subheadings are inserted for convenience only and shall not affect construction or interpretation of this Agreement.
23 11-180.24

14.17 Incorporation of Recitals and Exhibits.

All of the Recitals are incorporated into this Agreement by this reference. Exhibits A and B are attached to this Agreement and incorporated by this reference as follows:

EXHIBIT I DESCRIPTION

DESIGNATION
A I Legal Description of Property
B I Depiction of the Property

14.18 Recordation.

The City Clerk of City shall record this Agreement and any amendment, modification, or cancellation of this Agreement in the Office of the County Recorder of the County of Orange within the period required by California Government Code section 65868.5 and City of Newport Beach Municipal Code section 15.45.090. The date of recordation of this Agreement shall not modify or amend the Effective Date or the Termination Date. [SIGNATURE PAGE FOLLOWS]
24 11-180.25

SIGNATURE PAGE TO DEVELOPMENT AGREEMENT
"PROPERTY OWNER"
BCD Newport Beach II, LLC, a Delaware
limited liability corporation
By: _
Name:

Title:

By: _
Name:

Title:
"CITY"
ATTEST:

Leilani I. Brown, City Clerk
APPROVED AS TO FORM:

Aaron C. Harp, City Attorney
CITY OF NEWPORT BEACH, a municipal
corporation and charter city
Will O'Neill, Mayor
Jennifer Hernandez, Attorney for Property Owner
25 11-180.26

ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

State of California
County of
On , 20 before me, , Notary
Public, personally appeared , who proved to me
on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature

State of California
County of
(seal)
On , 20 before me, , Notary
Public, personally appeared , proved to me on
the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature (seal)
11-180.27

EXHIBIT A

LEGAL DESCRIPTION OF PROPERTY

THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF

NEWPORT BEACH, IN THE COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:

THAT PORTION OF BLOCK 50 OF IRVINE'S SUBDIVISION, AS SHOWN ON A MAP RECORDED IN BOOK 1, PAGE 88 OF MISCELLANEOUS RECORDS MAPS,

RECORDS OF ORANGE COUNTY, CALIFORNIA, TOGETHER WITH THAT PORTION OF TRACT 706, AS SHOWN ON A MAP RECORDED IN BOOK 21, PAGE 25 OF

MISCELLANEOUS MAPS, RECORDS OF SAID ORANGE COUNTY, DESCRIBED AS FOLLOWS:

PARCEL 2 IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP FILED IN BOOK 54, PAGE 11 OF PARCEL MAPS IN THE OFFICE OF THE COUNTY RECORDER OF ORANGE COUNTY, CALIFORNIA.

EXCEPT THE FULL RIGHTS TO ALL MINERALS, PETROLEUM, GAS AND OTHER HYDROCARBON SUBSTANCES EXISTING BELOW FIVE HUNDRED (500) FEET

FROM THE SURFACE OF SAID REAL PROPERTY DESCRIBED ABOVE, PROVIDED,

HOWEVER, THAT GRANTOR HEREBY EXPRESSLY WAIVES THE RIGHT TO ENTER

UPON THE SURFACE OF SAID REAL PROPERTY FOR THE PURPOSE OF

EXPLORING FOR, OR PRODUCING THE MINERALS, PETROLEUM, GAS AND

OTHER HYDROCARBON SUBSTANCES SO RESERVED IN DEED RECORDED JULY 1, 1977.
11-180.28

EXHIBIT B

DEPICTION OF PROPERTY
11-180.29

Attachment E
Resolution No. 2024-24
11-181

RESOLUTION NO. 2024- 24

A RESOLUTION OF THE CITY COUNCIL OF THE CITY

OF NEWPORT BEACH, CALIFORNIA, FINDING THE
RESIDENCES AT 1400 BRISTOL PROJECT IS

CONSISTENT WITH THE PURPOSES OF THE STATE

AERONAUTICS ACT AND OVERRIDING THE ORANGE

COUNTY AIRPORT LAND USE COMMISSION'S
DETERMINATION THAT THE RESIDENCES AT 1400
BRISTOL IS INCONSISTENT WITH THE 2008 JOHN

WAYNE AIRPORT ENVIRONS LAND USE PLAN
(PA2022-0296)
WHEREAS, Section 200 of the City of Newport Beach ("City") Charter vests the City Council with the authority to make and enforce all laws, rules, and regulations with respect to municipal affairs subject only to the restrictions and limitations contained in the Charter and the State Constitution, and the power to exercise, or act pursuant to any and all rights, powers, and privileges, or procedures granted or prescribed by any law of the State of California;
WHEREAS, an application was filed by The Picerne Group ("Applicant'), with respect to the property located at 1400 Bristol Street and legally described in Exhibit "A," which is attached hereto and incorporated by reference ("Property").

WHEREAS, the Applicant is requesting approval to demolish two existing office buildings and develop 229 apartment units, including a 422-space parking structure ("Project"), which requires the following approvals:
• General Plan Amendment ("GPA") - A request to amend the General Plan land use designation from General Commercial Office (CO-G) to Mixed -Use Horizontal 2 (MU-H2) and add 64 dwelling units above the General Plan allowance to Anomaly 16 of the General Plan Table LU2 (Anomaly Locations); • Planned Community Development Plan Amendment ("PCDP Amendment') - An amendment to the Newport Place Planned Community (PC-11) Development Plan to include the Property within the Residential Overlay; • Major Site Development Review ("SDR") - A site development review in accordance with the Newport Place Planned Community (PC-11) and Section

20.52.080 (Site Development Reviews) of the Newport Beach Municipal Code ("NBMC") to construct the Project;
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• Affordable Housing Implementation Plan ("AHIP") - A plan specifying how the Project would meet the City's affordable housing requirements, in exchange for a request of 50% increase in density including a request for six development standard waivers related to park land dedication, building setbacks, building height, private open space for each residential unit, common open space along with two development concessions related to the mix of affordable units and partial payment of park in -lieu fees pursuant to Chapter 20.32 (Density Bonus) of the NBMC and Govemment Code Section 65915 et seq. ("State Density Bonus Law");
• Development Agreement ("DA") — A development agreement between the Applicant and the City, pursuant to Section 15.45.020 (Development Agreement Required) of the NBMC, which would provide the Applicant with the vested right to develop the Project for a term of 10 years and provide negotiated public benefits to the City;
• Traffic Study - A traffic study pursuant to Chapter 15.40 (Traffic Phasing Ordinance) of the NBMC; and
• Addendum No. 7 to the 2006 General Plan Update Program Environmental Impact Report and the 2008-2014 City of Newport Beach Housing Element Update and Initial Study/Negative Declaration ("Addendum No. 7") — An addendum which addresses reasonably foreseeable environmental impacts resulting from the Project;
WHEREAS, the Property is designated General Commercial Office (CO-G) by the General Plan Land Use Element and is located within the Newport Place Planned Community (PC-11) Zoning District in the Industrial Site 3A sub -area; WHEREAS, the Property is not located within the coastal zone; therefore, amending the Local Coastal Program and obtaining a coastal development permit are not required; WHEREAS, the Property is located in the Airport Area Environs ("Airport Area") and is one of the 62 new housing opportunity sites allocated in the certified 6th Cycle Housing Element;
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WHEREAS, on November 14, 2023, the City Council approved Resolutions 2023- 72 and 2023-73 and Ordinances 2023-20 and 2023-21, authorizing amendments to the Noise Element and Land Use Element of the General Plan, Title 20 (Planning and Zoning) of the NBMC, Newport Place Planned Community Development Plan (PC-11), and Newport Airport Village Planned Community Development Plan (PC-60) ("6t' Cycle Housing Element Implementation Noise -Related Amendments") to update the noise contours identified by the 2014 John Wayne Airport Settlement Agreement Amendment Environmental Impact Report No. 617 EIR No. 617"), allowing residential units identified by the certified 6th Cycle Newport Beach Housing Element to be located within the 65 decibel ("65 dBA") Community Noise Equivalent Level ("CNEL") noise contour maps analyzed in EIR No. 617, and incorporating additional noise attenuation measures for future housing units proximate to John Wayne Airport;
WHEREAS, the Property is located within the 60 dBA noise contour as a shown in the updated noise contour maps adopted as part of the 6th Cycle Housing Element Implementation Noise -Related Amendments;
WHEREAS, a public hearing was held by the Planning Commission on December 7, 2023 in the Council Chambers at 100 Civic Center Drive, Newport Beach, California. A notice of time, place and purpose of the hearing was given in accordance with Government Code Section 54950 et seq. ("Ralph M. Brown Act"), and Chapter 15.45 (Development Agreements), Chapter 19.20 (Vesting Tentative Map), Chapter 20.56 (Planned Community District Procedures), and Chapter 20.62 (Public Hearings) of the NBMC. Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this hearing;
WHEREAS, at the hearing, the Planning Commission adopted Resolution No.

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WHEREAS, on January 18, 2024, the ALUC determined the Project is inconsistent with the following provisions of the AELUP:
• Section 2.1.1 (Aircraft Noise), which provides that the "aircraft noise emanating from airports may be incompatible with the general welfare of the inhabitants within the vicinity of an airport";
• Section 2.1.2 (Safety Compatibility Zones), which provides "the purpose of these zones is to support the continued use and operation of an airport by establishing compatibility and safety standards to promote air navigational safety and to reduce potential safety hazards for persons living, working or recreating near JWA"; and
• Section 3.2.1 (General Policy), which provides that "[w]ithin the boundaries of the AELUP, any land use may be found to be Inconsistent with the AELUP [if it] ... (1) [p]laces people so that they are affected adversely by aircraft noise [or] (2) concentrates people in areas susceptible to aircraft accidents ... " WHEREAS, pursuant to Sections 21670 and 21676 of CPUC, the City Council may, after a public hearing, propose to overrule the ALUC with a two-thirds vote, if it makes specific findings that the Project is consistent with the purpose of Section 21670 of the CPUC to protect the public health, safety, and welfare by ensuring the orderly expansion of airports and the adoption of land use measures that minimize the public's exposure to excessive noise and safety hazards within areas around public airports to the extent that these areas are not already devoted to incompatible uses; WHEREAS, a public hearing was held by the City Council on February 13, 2024, in the City Council Chambers located at 100 Civic Center Drive, Newport Beach, California. A notice of time, place, and purpose of the hearing was given in accordance with CPUC Section 21676(b) and the Ralph M. Brown Act. Evidence, both written and oral, was presented to, and considered by, the City Council at this hearing; WHEREAS, at the conclusion of the hearing, the City Council adopted Resolution No. 2024-9 by unanimous vote (7 ayes, 0 nays) to notify the ALUC and State Department of Transportation Aeronautics Program ("Aeronautics Program") of the City's intent to override ALUC's inconsistency finding;
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WHEREAS, notice of the City's intent to override the ALUC inconsistency determination, along with Resolution No. 2024-9 was sent via certified mail and emailed to the ALUC and the Aeronautics Program on February 14, 2024; WHEREAS, the City received timely comments in response to the notice of the City's intent to override the ALUC inconsistency determination from the ALUC and the Aeronautics Program in accordance with CPUC Section 21676 which are attached hereto as Exhibits "C" and "D" respectively, and incorporated herein by reference; and WHEREAS, a public hearing was held by the City Council on April 9, 2024, in the City Council Chambers located at 100 Civic Center Drive, Newport Beach, California. A notice of time, place and purpose of the public hearing was given in accordance with the Ralph M. Brown Act, Chapter 15.45 (Development Agreements), Chapter 19.20 (Vesting Tentative Maps), Chapter 20.56 (Planned Community District Procedures), and Chapter

20.62 (Public Hearings) of the NBMC, and CPUC Section 21676(b). Evidence, both written and oral, was presented to, and considered by, the City Council at this meeting.

NOW, THEREFORE, the City Council of the City of Newport Beach resolves as follows:

Section 1: The City Council finds the Project consistent with the purposes of Section 21670 of the CPUC and the AELUP of protecting the public health, safety, and welfare by ensuring the orderly expansion of airports and the adoption of land use measures that minimize the public's exposure to excessive noise and safety hazards within areas around public airports to the extent that these areas are not already devoted to incompatible uses and hereby overrides ALUC' s determination that the Project is inconsistent with the AELUP.

Findings and Facts in Support of Findings
A. The Project is consistent with the noise standards of the AELUP.

The AELUP guides development proposals to provide forthe orderly development of John Wayne Airport and the surrounding area through implementation of the standards in Section 2 (Planning Guidelines) and Section 3 (Land Use Policies). Implementation of these standards are intended to protect the public from the adverse effects of aircraft noise, ensure that people and facilities are not concentrated in areas susceptible to aircraft accidents, and ensure that no structures or activities adversely affect navigable airspace.
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Section 2.1.1 of the AELUP sets forth the CNEL standards, and Sections 3.2.3 and 3.2.4 of the AELUP define the noise exposure in the 60 dBA to 65 dBA CNEL noise contour (Noise Impact Zone 2) as "Moderate Noise Impact" and in the 65 dBA to 70 dBA CNEL noise contour (Noise Impact Zone 1) as "High Impact." Section 3, Table 1 (Limitations on Land Use Due to Noise) of the AELUP identifies residential uses as "conditionally consistent" with the 60 dBA to 65 dBA CNEL noise contour and "normally inconsistent" with the 65 dBA to 70 dBA CNEL noise contour. However, residential uses are not outright prohibited. Instead, Section 3.2.3 of the AELUP requires the residential uses be developed with advanced insulation systems to bring the sound attenuation to no more than 45 dBA within the interior of the building. In addition, residential uses within the 65 dBA CNEL noise contour area are required to be "indoor -oriented" to preclude noise impingement on outdoor living areas.

The Project is located within the updated 60 dBA CNEL noise contour, consistent with the approved 6th Cycle Housing Element Implementation Noise -Related Amendments.

Additionally, the Project has been conditioned to provide an acoustical report which describes the best design features of the structure that will satisfy noise standards, be attenuated to provide a maximum interior noise level of 45 dBA and provide advanced air filtration systems to promote cleaner air without the opening of windows. These conditions of approval mitigate noise to the Project and are consistent with the 45 dBA interior noise standards of the AELUP.

B. The Project is consistent with the safety standards of the AELUP.

Section 2.1.2 (Safety Compatibility Zones) of the AELUP sets forth zones depicting which land uses are acceptable in various portions of JWA environs. Allowed uses in Safety Zone 6 include residential and most nonresidential uses, excepting outdoor stadiums and similar uses with very high intensities. Uses that should be avoided include children's schools, large day-care centers, hospitals, and nursing homes. Risk factors associated with Safety Zone 6 generally include a low likelihood of accident occurrence.

The Project is located within Safety Zone 6 and residential uses are allowed in that zone.

The City's General Plan Safety Element Policy S 8.6 demonstrates that the City acknowledges the importance of the JWA Safety Zones in providing, "S 8.6 John Wayne Airport Traffic Pattern Zone - Use the most currently available John Wayne Airport (JWA) Airport Environs Land Use Plan (AELUP) as a planning resource for evaluation of land use compatibility and land use intensity in areas affected by JWA operations. In particular, future land use decisions within the existing JWA Clear Zone/Runway Protection Zone (Figure S5) should be evaluated to minimize the risk to life and property associated with aircraft operations."
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The Project complies with the policies and regulations within the JWA Airport Planning Area and follows the safety standards of the AELUP as it is located within Safety Zone 6 and is not within the JWA Clear Zone/Runway Protection Zone.

C. The Project is consistent with the height standards of the AELUP.

Section 2.1.3 (Building Height Restrictions) of the AELUP sets forth building height restrictions. Section 2.1.3 provides that ALUC consider only one standard as provided in 14 Code of Federal Regulations ("C.F.R.") Part 77 (also referred to as the Federal Aviation Regulations). Section 2.1.3 provides that the Federal Aviation Regulations are the only definitive standards available and the standards most generally used. Section

2.1.3 identifies the FAA as the single authority for analyzing project impacts on airports or aeronautical operations, or navigational -aid siting, including interference with navigational aids or published flight paths and procedures along with reporting results of such studies and project analyses.

The FAA conducted an aeronautical study for the Project consistent with the Federal Aviation Regulations. The FAA issued a Determination of No Hazard to Air Navigation on January 17, 2023, thereby finding the development does not exceed obstruction standards and would not be a hazard to air navigation. The FAA reviewed the proposed height of the Project assuming an existing site elevation of 54 feet, with a proposed building that is 85 feet above ground level ("AGL"), and 139 feet above mean sea level ("AMSL"). The FAA further found that marking and lighting of the Project is not necessary for aviation safety. Any increase in height of the structure above the proposed 85-foot building height would require a revised Determination of No Hazard to Air Navigation from the FAA. Additionally, there are other buildings in the vicinity of the Project that are taller than the Project including the building at 1500 Quail Street that is approximately 144 feet AMSL.
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Section 2: Environmental Impact Report Addendum No. 7 was prepared for the Project in compliance with the California Environmental Quality Act ("CEQA") set forth in California Public Resources Code Section 21000 et seq.; CEQA's implementing regulations set forth in Title 14, Division 6 Chapter 3 of the California Code of Regulations ("CCR") ("CEQA Guidelines") and City Council Policy K-3 (Implementation Procedures for the California Environmental Quality Act) to ensure that the Project will not result in new or increased environmental impacts. On the basis of the entire environmental record, the Project will not result in any new significant impacts that were not previously analyzed in the Program Environmental Impact Report ("PEIR") for the General Plan 2006 Update (SCH No. 2006011119) and the City of Newport Beach Housing Element Initial Study/Negative Declaration. The potential impacts associated with this Project would either be the same or less than those described in the PEIR and the City of Newport Beach Housing Element Initial Study/Negative Declaration. In addition, there are no substantial changes to the circumstances under which the Project would be undertaken that would result in new or more severe environmental impacts than previously addressed in the PEIR and the City of Newport Beach Housing Element Initial Study/Negative Declaration, nor has any new information regarding potential for new or more severe significant environmental impacts been identified.

Section 3: The recitals provided in this resolution are true and correct and are incorporated into the operative part of this resolution. 11-189

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Section 4: If any section, subsection, sentence, clause or phrase of this resolution is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this resolution. The City Council hereby declares that it would have passed this resolution, and each section, subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional.

Section 5: This resolution shall take effect immediately upon its adoption by the City Council, and the City Clerk shall certify the vote adopting the resolution.

ADOPTED this 9th day of April, 2024.

Will O'Neill
Mayor
ATTEST:

Leilani I. Brown
City Clerk
APPROVED AS TO FORM:

CITY TTORNEY'S OFFICE
Aaron C. Harp
City Attorney
Attachments: Exhibit "A" — Legal Description
Exhibit "B" — Orange County Airport Land Use Commission Inconsistency Determination dated January 23, 2024
Exhibit "C" — Comment Letter from Orange County Airport Land Use Commission dated March 12, 2024
Exhibit "D" — Comment Letter from California Department of Transportation Aeronautics Program dated
March 12, 2024
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