HomeMy WebLinkAboutOrdinance #4135 ORDINANCE NO. 4135
AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH ADOPTING A
DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF
HUNTINGTON BEACH AND SIGNAL LANDMARK(DEVELOPER)
(DEVELOPMENT AGREEMENT NO. 16-001)
WHEREAS, the Planning Commission approved Conditional Use Permit No. 16-
035, Coastal Development Permit No. 16-018, and Tentative Tract Map No. 18060 to
develop an approximately 2.5-acre property located at 17202 Bolsa Chica Street
(Property) with 36 townhome units with a 3,800 square feet of resident recreation area
(Project)pursuant to the Windward Specific Plan; and
The City and Developer each mutually desire to enter into a Development
Agreement with one another to permit and ensure that the Property is developed in
accordance with the approved Conditional Use Permit No. 16-035, Coastal Development
Permit No. 16-018, and Tentative Tract Map No. 18060 and the Windward Specific Plan
zoning regulations to achieve the mutually beneficial development of the Property.
NOW, THEREFORE, the City Council of the City of Huntington Beach does
hereby ordain as follows:
SECTION 1: That the City Council hereby finds that Development Agreement
No. 16-001 conforms to Government Code Section 65864 et. seq. and that:
a. Development Agreement No. 16-001 is consistent with the Huntington Beach
General Plan; and
b. Development Agreement No. 16-001 is consistent with Chapter 246 of the
Huntington Beach Zoning and Subdivision Ordinance (HBZSO), the
Huntington Beach Municipal Code, and the Subdivision Map Act; and
c. Development Agreement No. 16-001 will not be detrimental to the health,
safety and general welfare, and will not adversely affect the orderly
development of the property because it is consistent with applicable land use
regulations of the zoning regulations in effect at the time of project approval,
mitigation measures adopted for the Project in accordance with MND 16-003,
and conditions approved for Conditional Use Permit No. 16-035, Coastal
Development Permit No. 16-018, and Tentative Tract Map No. 18060; and
17-5696/157322/MV 1
ORDINANCE NO. 4135
d. The City Council has considered the fiscal effect of Development Agreement
No. 16-001 on the City and the effect on public open space in the Bolsa Chica
area and has balanced these needs against available fiscal and environmental
resources.
SECTION 2: Based on the above findings, the City Council of the City of
Huntington Beach hereby approves Development Agreement No. 16-001 and adopts it by
this ordinance pursuant to Government Code Section 65867.5. This action is subject to a
referendum.
SECTION 3: This ordinance shall take effect 30 days after its adoption.
PASSED AND ADOPTED by the City Council of the City of Huntington Beach
at a regular meeting thereof held on the 4th day of June , 2018.
Mayor
ATTEST:
?6Ø" q6/.'44/241,111Ald
City Clerk
APPROVED AS •
'City Attorney
REVIEWED AND APPROVED: t INITIATED AND APPROVED:
City Manager Dir c r of unity Development
ATTACHMENTS:
Exhibit A: Development Agreement No. 16-001
17-5696/157322/MV 2
Oi2bilvtr .GE Ale). y135 JTx/-7131j" "A " Recorded in Official Records, Orange County
Hugh Nguyen, Clerk-Recorder
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2019000015662 12:17 pm 01/16/19
RECORDING REQUESTED BY AND 47 NC-5 Al2 30
WHEN RECORDED MAIL TO: 0.00 0.00 0.00 0.00 87.00 0.00 0.000.000.00 0.00
City of Huntington Beach
2000 Main Street
Huntington Beach,CA 92648
Attn: Community Development Director
Per Ordinance No. 4135 SPACE ABOVE THIS LINE RESERVED FOR RECORDER'S USE
DEVELOPMENT AGREEMENT NO. 16-001
This Development Agreement ("Agreement") is entered into by and between the City of
Huntington Beach, a municipal corporation of the State of California (the "City"), and Signal
Landmark, Inc., a California corporation ("Developer").The City and Developer shall be referred
to jointly within this Agreement as the "Parties" and individually as a "Party." For the
convenience of the reader, a Glossary of Defined Terms used in this Agreement follows the
signature pages.
RECITALS
A. This. Agreement is one of a series of actions by the City (collectively, the "Required
Approvals") which will implement an April 2016 settlement of litigation (the "Settlement")
between the City, Developer, and the Bolsa Chica Land Trust (the "BCLT") with respect to
development of property described below as the "Windward Property" (see Recital E).
B. The purpose of this Agreement is to provide assurances to the City, the California Coastal
Commission, and the community that development of that portion of the Windward
Property defined in Recital E as the "Windward Residential Parcel" cannot begin unless:
1. "Alternative 1": Both the Windward Property and the adjacent "Goodell Property"
(described in Recital F below) are first made available for acquisition by the Trust for
Public Lands("TPL") as set forth in Section1 4.1; or
2. "Alternative 2": If Alternative 1 does not occur pursuant to Section 4.1, Developer has
conveyed2 to a governmental agency or a qualifying non-profit organization entity
acceptable to the City, such as, but not limited to, the BCLT3 (a "Qualifying Non-Profit
1"Section"means a numbered section of this Agreement,unless specifically stated to refer to another document.
1 If a conveyance is made to a governmental entity, it will be made through an Irrevocable Offer of Dedication. If a
conveyance is made to a non-profit entity, the conveyance may be through an instrument other than an
Irrevocable Offer of Dedication, such as a grant deed, if(i) legally necessary to complete the conveyance and (ii)
approved by the City.
3 If the grantee is the BCLT,the BCLT must first be approved by the City.
This document is solely for the official
business of the City of Huntington Mach.
as contemplated under Government Cods
Sec. 2730 and shouid'ba recorded free
1 of charge.
Organization") both (i) that portion of the Windward Property defined in Recital E as the
"Windward Open Space Parcel" and (ii) the Goodell Property (see Section 4.2).
C. In addition, as set forth in Section 65864(b) of California's Development Agreement Statute
(Government Code Sections 65864-65869.5), this Agreement will provide necessary
assurances to Developer that if Alternative 1 does not occur and Alternative 2 is
implemented by Developer, development of the Windward Residential Parcel "may proceed
in accordance with existing policies, rules and regulations." Those "existing policies, rules,
and regulations" are described and defined later in this Agreement as the "Applicable
Rules." Absent these assurances, Developer cannot make the "investment in and
commitment to comprehensive planning" (see Government Code Section 65864(a))
facilitated by this Agreement.
D. Government Code Sections 65864 through 65869.5 and Chapter 246 of the Huntington
Beach Zoning and Subdivision Ordinance (the "Zoning Code") authorize the City to enter
into development agreements with the owners of legal or equitable interests in real
property located within the City.
E. The property subject to this Agreement is the Windward Property. Developer holds legal
title to the Windward Property, which consists of approximately 5 acres, is described in
Exhibit A,4 and is depicted on Exhibit B. The Windward Property is in the City, southeast of
the intersection of Bolsa Chica and Los Patos. Exhibit B identifies a portion of the Windward
Property as the "Windward Residential Parcel" and the remainder as the "Windward Open
Space Parcel."
F. Adjacent to and south of the Windward Property and in the unincorporated area of the
County of Orange is the Goodell Property, which consists of approximately 6.2 acres. The
Goodell Property is depicted on Exhibit B and described in Exhibit C. The City does not have
jurisdiction over the Goodell Property.
G. The Goodell Property is zoned, under the County of Orange, as Planned Community (PC),
which allows single-family residential uses at a density of 6-12 units per acre. The City has
pre-zoned 3.2 acres of the Goodell Property for single-family residential and 3 acres for
open space uses. Developer holds an option to purchase legal title to the Goodell Property
(the "Goodell Option").
H. Because the Goodell Property is not within the City, this Agreement is not intended to and
does not regulate the use of the Goodell Property. The role of the Goodell Property as part
of this Development Agreement is simply to allow Developer to convey its potential
ownership interest in the Goqdell Property to satisfy the conditions precedent to the
development of the Windward Residential Parcel if Alternative 1 does not occur. Any
°All references to"Exhibits"within this Agreement are references to exhibits to this Agreement unless otherwise
specified.All Exhibits are incorporated as a substantive part of this Agreement.
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conveyance of and use restrictions imposed on the Goodell Property as described in this
Agreement are voluntary on the part of Developer and not the result of regulations
imposed on the Goodell Property by either the City or the Coastal Commission.
I. The City owns the thirty-foot strip of land located above the northerly boundary of the
Development Site as shown on Exhibit "B" (the "City Property").
J. The Settlement establishes a program under which Developer and the City intend to enable
either Alternative 1 or Alternative 2 (the "Settlement Program").This Agreement is a vehicle
to facilitate the following actions if Alternative 1 does not occur and Alternative 2 of the
Settlement Program is implemented:
1. The conveyance of title to that portion of the Windward Property outside the Windward
Residential Parcel not slated for development under Alternative 2 (the "Windward Open
Space Parcel") to either a governmental agency or a Qualifying Non-Profit Organization
for public access, passive recreational use, habitat enhancement, and public trail
purposes, as appropriate (the "Windward Conveyance");
2. The conveyances of the Goodell Property to either a governmental agency or a
Qualifying Non-Profit Organization for public access, passive recreational use, habitat
enhancement, and public trail purposes, as appropriate (the "Goodell Conveyance");
and
3. Developer's proposed medium density residential neighborhood within the "Windward
Residential Parcel" (the "Development").
K. The Settlement Program and the Development are to be undertaken pursuant to the
following approvals which, together, shall be referred to within this Agreement as the
"Required Approvals" and which are anticipated to be sequenced as set forth in Recital L
below:
1. City approvals (collectively, the "City Approvals"):
a) Approval of a Local Coastal Program Amendment (the "LCPA"), consisting of (1) an
amendment to the Coastal Element of the City's General Plan which functions as the
Land Use Plan portion of the LCP, and (2) the "Windward Specific Plan," comprised
of a Zoning Text Amendment and a Zoning Map Amendment to the Implementation
Plan portion of the Local Coastal Program;
b) Approval of and entry into this Agreement;
c) Approval of a Coastal Development Permit (the "CDP") authorizing construction of a
36-unit townhome development and associated infrastructure and consisting of (1)
a Tentative Tract Map (the "Map") subdividing the Windward Property into one
numbered lot for residential development (the "Windward Residential Parcel") and
5 See Footnote 2 above.
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one lettered lot for open space (the "Windward Open Space Parcel") and (2) a
Conditional Use Permit (the "CUP") allowing the development of the Windward
Residential Parcel in accordance with the development standards set forth in the
Windward Specific Plan and the LCPA (or as certified with suggested modifications
adopted by the City); and
d) Approval of grading, building, and similar ministerial permits.
2. Coastal Commission actions (collectively, "Commission Approvals"):
a) Certification of the LCPA, in accordance with the City Approvals (or with suggested
modifications approved by the City);
b) Approval of this Agreement to the extent, if any, required by Government Code
Section 65869, including with respect to its terms regarding the acquisition,
conveyance, and deed restriction of the adjacent Goodell Property; and
c) In the event the City's approval of the CDP is appealed to the Coastal Commission,
approval by the Commission of a coastal development permit.
L. The anticipated procedural sequence for obtaining the Required Approvals and the issuance
of permits allowed by the CDP is:
1. Approval by the City of the City Approvals.
2. Submittal of an application to the Coastal Commission by the City for certification of the
LCPA, in accordance with the City Approvals, and any required approval of this
Agreement.
3. The certification by the Coastal Commission of the LCPA and, to the extent required, if
any, the approval of this Agreement. (Note: The Coastal Commission may make its
approval of the LCPA subject to concurrence by the City Council with "suggested
modifications" to the City's proposed LCPA.)
4. Approval by the City Council of the Coastal Commission's "suggested modifications," if
any.
5. After certification of the LCPA is complete, approval by the City of the CDP or, in the
event the City's approval of the CDP is appealed to the Coastal Commission and for
which the Coastal Commission determines the appeal raises substantial issue(s)
regarding conformity of the CDP with the LCP, approval by the Commission of the CDP.
6. The issuance by the City of all permits related to the CUP, the Map, and the CDP, such as
grading, building, and similar ministerial permits.
M. Government Code Section 65869 provides, in pertinent part,as follows:
"A development agreement shall not be applicable to any development project
located in an area for which a local coastal program is required to be prepared
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and certified. . . unless: (1) the required local coastal program has been certified
as required by such provisions prior to the date on which the development
agreement is entered into, or (2) in the event that the required local coastal
program has not been certified, the California Coastal Commission approves such
development agreement by formal commission action."
Because this Agreement is premised upon the certification of the LCPA by the Commission,
the Parties recognize that it may not be "applicable" to the Development until the date that
the certification of the LCPA by the Coastal Commission is final (the "Certification Date").
N. The City Council has evaluated the potential environmental impacts of the Settlement
Program (the "CEQA Review") pursuant to the California Environmental Quality Act
("CEQA"). The City Council has determined that the Settlement Program will not have any
new or more severe potential adverse environmental impacts than were evaluated in the
CEQA Review and that no further environmental review of this Agreement or the Required
Approvals is required.
0. As parties to the Settlement, the Parties each have an interest in securing the objectives of
- the Settlement. This Agreement assures the City and the Coastal Commission that if
Alternative 1 of the Settlement Program is not successful, the Development cannot proceed
without completion of both the Windward and Goodell Conveyances. It also assures
Developer that if it completes the Windward and Goodell Conveyances, it will have the
vested right to complete the Development.
P. On June 27, 2017, the Planning Commission held a duly noticed public hearing on this
Agreement and recommended to the City Council that it approve this Agreement.
Q. On May 21, 2018, the City Council held a duly noticed public hearing on and approved this
Agreement.
R. The City Council has found that this Agreement is consistent with (i) the City's General Plan
as amended by the GPA (including the Coastal Element as amended, provided that the
Coastal Commission certifies the LCPA) and the Huntington Beach Zoning and Subdivision
Ordinance (the "Zoning Code") in effect on the date of the first reading of the ordinance
adopting this Agreement (the "Approval Date") and (ii)the Subdivision Map Act.
S. For emphasis and clarification, there are three defined dates which have different meanings
and purposes within this Agreement and should not be confused.They are:
1. The "Approval Date," which is the date of the first reading of City Ordinance No.
4135 approving this Agreement. (Note: That ordinance is referred to as the
"Adopting Ordinance.")That date is May 21, 2018.
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2. The "Effective Date," which is the date on which the Adopting Ordinance becomes
effective under California law. That date is thirty days after the "second reading" of the
Adopting Ordinance.The Effective Date,therefore, is July 4, 2018.
3. The "Certification Date," which is the date that the certification of the LCPA by the
Coastal Commission becomes final. That date is unknown at the time of the approval of
this Agreement and will be determined by future events.
AGREEMENT
The Parties agree as follows:
1. DEFINITIONS. Defined terms that are used more than once within this Agreement are listed
in the Glossary following the signature page.
2. EXHIBITS.The following attached exhibits are incorporated as a part of this Agreement:
Exhibit A: Legal Description of the Windward Property
Exhibit B: Depiction of the Windward Property, the Windward Residential
Parcel, the Windward Open Space Parcel, the Goodell Property,
and the City Parcel.
Exhibit C: Legal Description of the Goodell Property
3. TERM OF AGREEMENT. Subject to Section 5.1a below, the term of this Agreement starts on
the day after the Effective Date and ends ten (10) years after the Certification Date (the
"Term").6 For purposes of clarification, neither Party shall have any obligations under this
Agreement until the Certification Date, except for (i) the performance of those acts
referenced in this Agreement which, by their context, are to occur before the Certification
Date and (ii)the duty of cooperation set forth in Section 12.1.
4. PUBLIC BENEFIT. As a party to the Settlement, the City has an interest in securing the
public benefits provided by the Settlement. The City's approval of this Agreement provides
an opportunity to facilitate one of the following public benefit opportunities:
4.1 Alternative 1: Acquisition by Trust for Public Land. Pursuant to the Settlement,
Developer has granted the Trust for Public Land ("TPL")7 an option to purchase the
Windward Property and, after exercise of the Goodell Option by Developer, the
6 As noted in Recital M, however, this Agreement shall not become "applicable" to the Development until the
Certification Date.The Parties recognize that the Effective Date will occur before the Certification Date.
Founded in 1972,TPL is a nationwide non-profit organization that acquires land from private owners and conveys
it into public or non-governmental organization ownership for conservation or public park purposes. Since its
inception,TPL has protected 3.3 million acres of land in over 5,400 separate acquisitions.
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Goodell Property (the "TPL Option"). The TPL Option provides TPL eighteen months
in which to raise the purchase funds. The TPL Option was originally set to expire in
October 2017, but has since been extended to April 30, 2019. The Settlement
allows Developer to apply for and pursue approval of the Required Approvals
during the term of the TPL Option while TPL pursues acquisition funding. If TPL
exercises the TPL Option, Developer will withdraw any pending applications for the
Required Approvals.
4.2 Alternative 2: Preservation Opportunity / Limited Development. If the TPL Option
expires without being exercised, then, after obtaining approval of the Required
Approvals and before commencing the Development, Developer must first make
the Windward and Goodell Conveyances for the benefit of the public as set forth in
Section 5 below(the "Implementation Documents").
a. Windward and Goodell Conveyance Deed Restrictions. At the time and on the
terms set forth in Chapter 5 of the Specific Plan, deed restrictions shall be
recorded against the Windward Open Space Parcel and the Goodell Property
permanently restricting each property to "Open Space and Conservation Uses"
(the "Deed Restrictions"). For the purposes of this Agreement, "Open Space
and Conservation Uses" shall mean and shall be limited to those "Open Space
and Conservation Uses" set forth in Section 4.2 of the Specific Plan.
4.3 Windward Open Space Parcel Improvements. If Alternative 2 occurs, (i) Developer
will improve the Windward Open Space Parcel with the public access amenities and
habitat enhancement as identified in the Specific Plan and (ii) the homeowner's
association for the Windward Residential Parcel shall maintain those improvements
until the Windward Open Space Parcel has been formally conveyed to either a
governmental agency or a Qualifying Non-Profit Organization.
4.4 City Property Improvements. If Alternative 2 occurs, Developer will (i) improve the
City Property with the trails, signage, and landscaping identified in the Specific Plan
and (ii) maintain those improvements until the maintenance responsibility is
transferred to the Development's Homeowner's Association.
5. DEVELOPMENT OF THE WINDWARD PROPERTY.
5.1 Developer's Vested Right. Subject to the Reservations of Authority (see Section
5.7), Developer shall have the vested right to complete the Development to the full
extent permitted under the Applicable Rules ("Developer's Vested Right").
Developer's Vested Right shall accrue and be applicable to the Development on the
Certification Date.
a. Limitation on Term of Developer's Vested Right. The sole reason that the City
is entering into this Agreement is to benefit the public by facilitating (i) the
Windward and Goodell Conveyances and (ii) the improvements and
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maintenance of the City-owned Parcel and the Windward Open Space Parcel, in
return for permitting development within the Windward Residential Parcel. As
a result, the City has required assurances in this Agreement that Developer
does not retain Developer's Vested Right if changes, other than "Minor
Changes" (see Glossary of Defined Terms), to the Development are sought by
Developer in the future.Therefore, if, after the LCPA has been certified and has
become effective, the CDP has been approved, and all permits related to the
CUP, the Map, and the CDP, such as grading, building, and similar ministerial
permits, have been issued, Developer or any successor of Developer submits an
application for an amendment to the LCP. which proposes to alter the
permitted uses of the Windward Residential Parcel, increase the density or
intensity of uses on the Windward Residential Parcel, increase the maximum
height or size of buildings permitted on the Windward Residential Parcel, or
eliminate Developer's obligation to make the Windward and Goodell
Conveyances, then Developer's Vested Right shall expire upon the submittal of
that application.
5.2 Condition Precedent to Required Approvals Becoming "Operative." To assure that
development of the Windward Residential Parcel may not occur without the
Windward Owner first taking the actions needed to implement the open space
objectives of the Specific Plan and Alternative 2 of the Settlement, the certified
LCPA shall become operative only on the terms and conditions set forth in Chapter
5,Section 5.3, of the Specific Plan.
5.3 Timing of Recordation of Implementation Documents. The applicable
Implementation Documents shall be signed and recorded and become effective
only in the time, substance, and form set forth in Chapter 5, Section 5.4.2, of the
Specific Plan as approved on the Approval Date (or with modifications acceptable to
the City and Owner).
5.4 Timing of Permit Issuance. Prior to the LCPA becoming operative, the City may not
issue any permits pursuant to Specific Plan, with the exception of permits for
archaeological studies and archaeological grading. Permits for archaeological
studies and archaeological grading may be issued at any time after certification of
the LCPA.
5.5 Term of Development Approvals.
a. The Map. Pursuant to Government Code Section 66452.6, the term of the Map
shall be automatically extended by the Adopting Ordinance to the end of the
Term and any future extension of the Term agreed upon by the Parties.
b. Other Development Approvals. The expiration of all other Development
Approvals shall be governed by applicable state law, including Government
Code Section 65863.9, and, where permitted under state and local law, all
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other Development Approvals shall be extended by the Adopting Ordinance for
a term ending concurrently with the term of the Map.
5.6 Initiatives, Moratoria, and Referenda. As a Subsequent Land Use Regulation, any
initiative or moratorium adopted after the Approval Date, no matter how enacted,
shall not apply to the Development or the Windward Property without Developer's
written consent unless otherwise ordered by a court of competent jurisdiction.
Pursuant to Government Code Section 65867.5(a), this Development Agreement is
a legislative act subject to referendum.
5.7 Reservations of Authority.The following rights are reserved to the City:
a. City's Discretion Under Applicable Rules. In considering applications for a
Subsequent Development Approval or Subsequent Land Use Regulation, the
City may exercise its regulatory discretion to the extent permitted by the
Applicable Rules. Pursuant to Government Code Section 65865.28, however,
requirements for subsequent discretionary actions shall not prevent
development of the Windward Property for the uses and to the density or
intensity of development set forth in the Applicable Rules.
b. Conflicting Emergency Regulations. The City may adopt emergency rules,
regulations, laws, and ordinances within the City's police power that would
limit the exercise of Developer's Vested Right ("Conflicting Emergency
Regulations"), provided that the Conflicting Emergency Regulations:
• result from a sudden, unexpected emergency declared by the President of
the United States, Governor of California, or the Mayor, City Council, or City
Manager of the City;
• address a clear and imminent danger, with no effective reasonable
alternative available that would have a lesser adverse effect on Developer's
Vested Right;
• do not primarily or disproportionately impact the Development; and
• are based upon findings of necessity established by a preponderance of the
evidence at a public hearing.
Any action challenging the application of a Conflicting Emergency Regulation to
the Windward Property or the Development shall be subject to de novo review
by the court for compliance with the provisions of this Section.
8 GC 65865.2 provides, among other things, that a "development agreement may include conditions, terms,
restrictions, and requirements for subsequent discretionary actions, provided that such conditions, terms,
restrictions, and requirements for subsequent discretionary actions shall not prevent development of the land for
the uses and to the density or intensity of development set forth in the agreement."
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c. Development Fees. The City may impose upon Developer any development
fees that are applicable to all development within the City at the rate and the
time generally applicable to all such development ("Development Fees").
Development Fees include all taxes,fees, or other exactions charged by the City
in connection with the development of land, including the application,
processing, approval, and/or issuance of Development Approvals or Land Use
Regulations. Development Fees include, but are not limited to, development
impact fees imposed pursuant to California's Mitigation Fee Act. Other
examples of Development Fees include inspection, plan check, utility capacity,
service, connection, library, cultural enrichment, park, flood control,
stormwater management, mitigation, and public facilities fees.
d. Affordable Housing In-Lieu Fee. Section 230.26 of the Zoning Code requires
that at least ten percent (10%) of all new residential construction shall be
affordable units, except as provided elsewhere within Section 230.26. Section
230.26(6)(5) of the Zoning Code provides that the terms of a project's
affordable housing requirement may be outlined in an applicable Specific Plan.
The Windward Specific Plan provides for 36 residential units to be constructed
on the Windward Residential Parcel. Pursuant to Sections 230.26(6)(1-2) of the
Zoning Code, the affordable housing requirement for the Development is 3.6
units affordable to moderate-income households. Section 3.3.6 of the Specific
Plan provides that this obligation may be satisfied through the payment of in-
lieu fees. Therefore, the City and the Windward Owner are providing in this
Agreement that prior to issuance of the first building permit for a residence
within the Windward Residential Parcel, the Windward Owner shall pay in-lieu
fees for all 36 units within the Development at the rate of $50,000 for each
unit, for a total payment of$1,800,000.
e. Suggested Modifications. Should the Commission suggest modifications to
some or all of the LCPA pursuant to Public Resources Code Sections 30512
and/or 30513 (the "Suggested Modifications"):
• This Agreement shall not require the City to agree to the Suggested
Modifications if the Suggested Modifications make substantive changes to
the LCPA as submitted to the Coastal Commission by the City which deprive
the City of the public benefits set forth in Section 4 above; and
• This Agreement shall terminate and shall not bind Developer if the
Suggested Modifications are adopted by the City without the City first
obtaining Developer's written concurrence with the Suggested
Modifications.
5.8 Appeal of Administrative Decisions. Any decision of the Director or a City staff
member with respect to this Agreement may be appealed to the Planning
Commission. Planning Commission decisions may be appealed to the City Council.
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5.9 Tentative Maps. Any Tentative Map approved for the Development shall comply
with the provisions of Government Code Section 66473.7.
6. DEVELOPER DEFAULTS AND REMEDIES.
6.1 Periodic Review. The City shall periodically review Developer's good faith
compliance with this Agreement pursuant to Government Code Section 65865.1
("GC 65865.1") and Zoning Code Section 246.14 and consistent with the due
process considerations set forth in Section 6.2(the "Periodic Review").
6.2 Due Process Considerations. Developer has committed through this Agreement to
make the Windward and Goodell Conveyances before permits are issued to begin
work on the Development. Developer would not have entered into this Agreement
and made that commitment without assurances that Developer's Vested Right
could not be terminated or modified without a fair and equitable Periodic Review
process9 consistent with GC 65865.1, Zoning Code Section 246.14 and general
principles of fairness and due process. Therefore, the following requirements shall
apply to Periodic Reviews and any other review of or allegation of noncompliance
pertaining to this Agreement:
a. Modifications for Noncompliance. The terms of GC 65865.1 allow a local
agency to terminate or modify a development agreement if a periodic review
of compliance with the terms of the development agreement demonstrates
noncompliance by the applicant/developer. The local agency's right to do so is
stated in permissive, rather than mandatory, terms: "the local agency may
terminate or modify the agreement."1°Therefore, as material consideration for
entering into this Agreement, the Parties have agreed that, in the event of a
finding of noncompliance, the City shall not modify the terms of this
Agreement unless the modification has been agreed to by Developer, as
provided in Government Code Section 65868.
b. Standard of Evidence. GC 65865.111 contains permissive terms which allow a
local agency to terminate a development agreement if a periodic review
demonstrates, "on the basis of substantial evidence," that there has been
noncompliance. The Parties recognize that the loss of Developer's Vested Right
upon a showing of "substantial evidence" of noncompliance would be unfair
and inequitable. Therefore, as material consideration for entering into this
Agreement, the Parties have agreed that any City finding of Developer's
noncompliance must be based upon the "preponderance of the evidence," as
would be the case with other breach of contract actions under California law.
9 These considerations apply equally to any other process by which this Agreement is terminated or modified.
io Subsection F of MC 246.14 contains the same permissive provision.
ii Subsection F of MC 246.14 contains the same permissive provision.
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6.3 Mortgagee Default Protection. If a Mortgagee requests from the City a copy of any
notice of default given to Developer, the City shall provide a copy of that notice to
the Mortgagee within ten (10) calendar days after receiving the Mortgagee's
request. The Mortgagee shall have the right, but not the obligation, to cure the
Default during any cure period allowed Developer under this Agreement.
7. CITY DEFAULTS AND REMEDIES.
7.1 Notice of City Default. After the Certification Date, if Developer believes that the
City has failed to honor Developer's Vested Right (a "City Default"), Developer shall
submit to the City a written notice of default stating those obligations which
Developer alleges have not been performed by City (a "Notice of City Default").
After receiving a Notice of City Default, the City shall promptly commence to cure
the identified City Default at the earliest reasonable time after receipt of the Notice
of City Default and shall complete the cure within thirty (30) calendar days after
receipt of the Notice of City Default, or such longer period as is reasonably
necessary to feasibly remedy the City Default. The City shall continuously and
diligently pursue the cure until the cure is complete. In no event shall the cure
period exceed one hundred twenty (120) calendar days. If the City disputes the
existence of a City Default or whether the City has cured the City Default, either
Party may seek declaratory relief from a court of law.
7.2 No Damages. Under no circumstances shall City be liable to Developer for damages,
including, but not limited to, monetary damages, lost profits, out of pocket costs,
and any other payment of any money, for a breach of this Agreement. Developer's
sole remedies for breach of any provision of this Agreement shall be for declaratory
relief,specific performance, and mandate.
8. MODIFICATION,AMENDMENT,CANCELLATION OR TERMINATION.
8.1 Amendment and Cancellation. Notwithstanding any other provision of this
Agreement, this Agreement may be amended or canceled, in whole or in part, by
mutual written consent of the City and Developer, subject to compliance with
Government Code Sections 65867, 65867.5, and 65868.
8.2 Minor Changes. Pursuant to Zoning Code Section 246.18, the Director, with the
written consent of Developer, may make changes to the Agreement without formal
action by the City Council if those changes do not (i) modify the Term or the
permitted uses, (ii) increase the density or intensity of uses or the maximum height
or size of buildings, or (iii) modify the substantive provisions for reservations or
dedication of land ("Minor Changes").
9. OTHER LEGAL ACTIONS, REMEDIES,AND INDEMNIFICATION
12
9.1 Third-Party Actions. If a third-party action (a "Third-Party Action") is filed against
the City with respect to this Agreement for any reason, including, but not limited to,
(i) attacking, setting aside, voiding, or annulling the approval of this Agreement, (ii)
challenging any of the Development's Development Approvals or Subsequent
Development Approvals, or (iii) otherwise delaying, impeding, or impairing
implementation of the Development, the Parties shall cooperate in the defense of
that Third-Party Action.
9.2 Indemnification of City. With respect to any Third-Party Action, including an action
challenging the sufficiency of environmental review and/or compliance with CEQA,
Developer shall, at Developer's expense, defend, indemnify, and hold harmless City,
its officers, employees, and independent contractors engaged in Development
planning or implementation. Developer shall provide a defense to the City with
counsel reasonably selected by Developer to defend both the City and Developer
and shall reimburse the City for ANY costs which the City may be required to pay as
a result of a Third-Party Action.The City may, in its sole discretion, participate in the
defense of a Third-Party Action at its own expense, but, except for those defense
costs, the City's participation shall not relieve Developer of the remainder of its
indemnification obligations under this Section 9.2.
9.3 Effect on Development.The filing of a Third-Party Action shall not excuse, delay, or
stop the Development in any manner, including the processing or construction of
the Development, approval of Subsequent Development Approvals, or issuance of
ministerial approvals by the City, unless the third party obtains a court order
preventing the activity or invalidating this Agreement. The City shall not stipulate to
the issuance of any such order without Developer's prior written consent.
10. NOTICES. All notices, demands, and correspondence required or permitted by this
Agreement (collectively, "Notices") shall be in writing. Notices shall be either personally
delivered or sent by registered or certified mail or overnight mail service. Notices shall be
deemed received upon personal delivery or on the second business day after registered,
certified, or overnight mailing. Notices shall be addressed as follows:
City or Developer may change its address by giving written Notice to the other Party.
Thereafter, Notices shall be addressed and transmitted to the new address.
If to City,to: If to Developer,to: With a Copy to:
City of Huntington Beach Signal Landmark, Inc. Tim Paone
2000 Main Street 27271 Las Ramblas Cox,Castle& Nicholson
Huntington Beach,CA 92648 Suite 100 3121 Michelson Drive
92648 Mission Viejo,CA 92692 Suite 200
Attn: City Manager Irvine, CA 92612
13
11. ENCUMBRANCES,ASSIGNMENTS,TRANSFERS,AND RELEASES
11.1 Discretion to Encumber. Developer may, in its sole discretion, encumber some or
all of the Windward Property or improvements on the Windward Property with a
Mortgage.
11.2 Mortgagee Protection. If a Mortgagee in possession of the Windward Property
requests Minor Changes, City shall meet with Developer and the Mortgagee to
negotiate in good faith the requested Minor Changes. City will not unreasonably
withhold or delay its consent to a requested Minor Change if the Minor Change is
consistent with the intent and purposes of this Agreement. The following terms
apply to all Mortgages:
a. Neither entering into this Agreement nor a breach of this Agreement shall
defeat, render invalid, diminish, or impair the lien of any Mortgage.
b. Except as otherwise provided within this Agreement, a Mortgagee who takes
possession of some or all of the Windward Property shall take the property
subject to this Agreement, including the provision that Developer cannot begin
any work on the Development without first making the Windward and Goodell
Conveya nces.
11.3 Assignment. If Developer sells or otherwise conveys (an "Assignment") all or a
portion of Developer's interest in the Windward Property (the "Transferred
Property"), the assignee of that Assignment (the "Assignee") shall be subject to all
provisions of this Agreement previously applicable to Developer with respect to the
Transferred Property, including, but not limited to, Developer's obligations set forth
in Section 5.2 as conditions precedent to the City's submittal of its application for
certification of the LCPA. The Assignee shall have no obligations with respect to
portions of the Windward Property not transferred ("Retained Property").
Developer shall remain liable for performance of Retained Property obligations,
including, but not limited to, Developer's obligations set forth in Section 5.2 as
conditions precedent to the City's submittal of its application for certification of the
LCPA, but shall have no further obligations with respect to the Transferred
Property.
11.4 City's Consent to Assignment. The City's consent to an Assignment shall not be
required except under the following circumstance:
If the Transferred Property is sold to an Assignee before Developer has exercised
the Goodell Option, then the Assignee shall not obtain Developer's rights under this
Agreement unless the City has first consented to the Assignment. The sole basis for
the City's refusal to grant that consent, however, shall be that, in the reasonable
and objective exercise of the City's judgment, both (i)the Assignee does not possess
the financial capacity to exercise the Goodell Option and (ii) adequate security has
14
not otherwise been offered to the City to assure that the Goodell Option can be
exercised so that the Goodell Conveyance can be made when and if the Required
Approvals have been granted and Developer elects to implement development of
the Windward Property as provided in this Agreement.
If Developer requests the City's consent to such an Assignment, the City's consent
shall be deemed granted unless the City has refused in writing to give that consent
within thirty(30) days after receiving written request for consent from Developer.
12. MISCELLANEOUS PROVISIONS.
12.1 Cooperation. The Parties shall cooperate in good faith to assist each other in the
performance of the provisions of this Agreement.
12.2 Recordation. The City Clerk shall cause a copy of this Agreement to be recorded
against the Windward Property with the County Recorder within ten (10) calendar
days after the Effective Date. The failure of the City to sign and/or record this
Agreement shall not affect the validity of this Agreement.
12.3 Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of the Parties and their respective successors and assigns.
12.4 No Third Party Beneficiaries. No person or entity other than the City and Developer
shall have any right of action based upon any provision of this Agreement.
12.5 Entire Agreement.This Agreement represents the entire and final agreement of the
Parties with respect to the subject matter of this Agreement.
12.6 Litigation Expenses. In any litigation between the Parties related to this Agreement,
each of the Parties shall bear its own attorneys'fees and other expenses incurred in
that proceeding.
12.7 Waiver. All waivers of performance must be in a writing signed by the Party
granting the waiver. Failure by a Party to insist upon the strict performance of any
provision of this Agreement shall not be a waiver of future performance of the
same or any other provision of this Agreement.
12.8 Delay for Events Beyond the Parties' Control. Performance by either Party of its
obligations under this Agreement shall be excused and the Term shall be extended
for periods equal to the time during which (i) litigation is pending which challenges
any matter, including compliance with any other local, state, or federal law, related
to the approval or implementation of the Development or (ii) a delay in a Party's
performance is caused by any event beyond the control of that Party. Examples of
such events include acts of nature, newly-enacted federal or state laws or
regulations, judicial actions such as the issuance of restraining orders and
injunctions, riots, strikes, and damage to work in process by reason of fire, mud,
15
rain, floods, earthquake, or other such casualties. With respect to litigation,
extensions shall be equal to the time between the filing of the action and the entry
of final judgment or dismissal after the conclusion of all appeals and/or the
expiration of all time periods during which an appeal could be brought. All
extensions under this Section 12.8 shall be cumulative.
A Party seeking excuse from performance under this Section shall provide written
Notice to the other Party within thirty (30) calendar days after becoming aware of
the delay. Either Party may file an action for judicial review of any requested excuse
from performance.
12.9 Time of Essence. Time is of the essence in the performance of the provisions of this
Agreement as to which time is an element.
12.10 Interpretation. This Agreement has been prepared jointly by both Parties and shall
not be interpreted or construed against either Party as the preparer.
12.11 Estoppel Certificate. During the Term, either Party may request from the other an
"Estoppel Certificate" certifying that:
a. This Agreement is unmodified and in full force and effect;or
b. There have been specific (date and description) modifications to the
Agreement, but it remains in full force and effect as modified.
The Estoppel Certificate shall also certify one of the following, if requested:
c. There are no known current uncured Defaults; or
d. There are specific(date, description, and status) Defaults which exist.
Within ten (10) business after receiving the request, the responding Party shall
deliver the completed Estoppel Certificate to the requesting Party. Estoppel
Certificates shall provide any other reasonable information requested. A failure to
timely deliver an Estoppel Certificate shall create a conclusive presumption that this
Agreement is in full force and effect without modification or Default. Developer
shall pay City for City's reasonable costs incurred in issuing Estoppel Certificates.
12.12 Governing Law and Venue. This Agreement shall be governed and interpreted in
accordance with the laws of the State of California. Venue for any litigation
concerning this Agreement shall be in Orange County, California.
Developer and City have executed this Agreement on the dates set forth below.
SIGNATURE PAGE TO BE ADDED
ACKNOWLEDGMENTS TO BE ADDED
1`6
SIGNAL LANDMARK, INC.,
a California corporation
By:
Name: e.✓�
Title: (' Fe)
Dated: 0_ I `t�
17
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 CA\kfnl a )
) ss:
COUNTY OF O' qty e )
On \a-a I`0 , 2018 before me, At\\t kv�6,rt \blt�� I�O�Ciftk\3Gbi1
Notary Public (insert name and titl of the officer),
personally appeared �e,1(\ @ D ea. , who proved to me on the
basis of satisfactory evidence to be therson(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/stye/they executed the same in his/bar/their
authorized capacity(ies), and that by his/ber/their signature(s) on the instrument the person(s),
or the entity upon behalf of which the person(s)acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
- \iLii, l
Signature:
Michell-eK►rv+ner11
[Seal]
.t;`I:pt MICHELLE KIMBERLY WIG
ie O Commission:.2241153
Notafy Publi ratrfomia
p
� Orange Connly
My Conran�zp re MAY 4,2022
18
CITY OF HUNTINGTON BEACH,
a municipal corporation of the
State of California
MAYOR Cri K PeterStin,
Dated: T/4/ 2°('1
ATTEST: APPROVED AS TO FORM:
91,44.
City Ierk Rcbi Y1 ESi"v+ni SlGtt1 City A •rney M rc he e% E Gra teS
Dated: //9/a d/ 7D,ted: Y1011
19
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.
ACKNOWLEDGMENT
STATE OF CALIFORNIA )
) ss
COUNTY OF ORANGE )
On January 9, 2019 before me, P. L. Esparza, Notary Public, personally appeared
Robin Estanislau and Erik Peterson who proved to me on the basis of
satisfactory evidence to be the persons whose names are subscribed to the within
instrument and acknowledged to me that they executed the same in their authorized
capacities, and that by their signatures on the instrument the persons, or the entity
upon behalf of which the persons 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.
ah7dbaj
mandi
WITNESS m hand and official seal. P.L.ESPARZA
y r
Orange County
• --+fir Commission#2204197
°"xi- My Comm.Expires Aug 4,2021
;49X
(Seal)
(Notary Si ure)
P.L. ESpoirza.,
GLOSSARY OF DEFINED TERMS
Within this Agreement, the following defined terms have the meanings set forth below:
1. "Adopting Ordinance" means City Ordinance No.41135approving.this Agreement.
2. "Agreement" means this Development Agreement.
3. "Applicable Rules" means the Required Approvals, the Existing Land Use Regulations, this
Agreement, the Subsequent Land Use Regulations to which Developer has consented in
writing, and Subsequent Development Approvals.
4. "Approval Date" means the,date of the first reading of the Adopting Ordinance.
5. "Assignee" means the person or entity to whom Developer transfers Developer's interest
in all, any portion of, or any interest in the Windward Property.
6. "Assignment" means the sale, transfer, or assignment of Developer's rights and
obligations under this Agreement in connection with a transfer of Developer's interest in
all, any portion of, or any interest in the Windward Property.
7. "BCLT" means the Bolsa Chica Land Trust.
8. "Certification Date" means the date that the certification of the LCPA by the Coastal
Commission becomes final.
9. "CDP" means Coastal Development Permit No. 16-018 for the Development, which will
not be acted upon by the City Council until after certification of the LCPA.
10. "CEQA" means the California Environmental Quality Act.
11. "CEQA Review" means the evaluation by the City of the Settlement Program's potential
environmental impacts pursuant to CEQA.
12. "City" means the City of Huntington Beach, California.
13. "City Approvals" means the approval of Local Coastal Program Amendment No. 16-002
(the "LCPA"), consisting of General Plan Amendment No. 16-002 (the "GPA"), Zoning Text
Amendment No. 16-004 for Specific Plan.,.No. 16 (the "Specific Plan"), and Zoning Map
Amendment No. 16-003 (the "Zoning Map Amendment").
14. "City Council" means the City Council of the City.
15. "City Property" means the thirty-foot strip of land identified on Exhibit "B" as the "City-
Owned Parcel" and located north of the Windward Property.
16. "Coastal Commission" means the California Coastal Commission.
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17. "Conflicting Emergency Regulations" means those emergency rules, regulations, laws,
and ordinances within the City's police power that would limit the exercise of Developer's
Vested Right and fall within the descriptions set forth in Section 5.6b.
18. "CUP" means Conditional Use Permit No. 16-035 for the Development(the"CUP").
19. "Deed Restrictions" means the recorded use restrictions limiting the Windward Open
Space Parcel and the Goodell Property, respectively, to Open Space and Conservation
Uses.
20. "Developer" means Signal Landmark, Inc., a California corporation.
21. "Developer's Vested Right" means Developer's right to complete the Development in
accordance with the Applicable Rules,as more specifically set forth in Section 5.
22. "Development" means Developer's proposed medium density residential neighborhood
within the Windward Residential Parcel to the extent authorized by the Applicable Rules.
23. "Development Approvals" means all permits, certificates, approvals, and other
entitlements approved or issued by the City for construction, marketing, use, occupancy,
and/or development of or on the Windward Residential Parcel. For the purposes of this
Agreement, Development Approvals shall be deemed to include, but are not limited to,
the following actions, including revisions, addenda, amendments, and modifications to
these actions:
• This Agreement;
• Coastal Development Permits;
• Tentative Maps, Final Maps, parcel maps, and any other approvals required by or
permitted under the Subdivision Map Act and/or the City's subdivision ordinance;
• Conditional use permits, use permits, temporary use permits, and site development
permits;
• Variances and waivers of development standards;
• Grading, excavation, building, and other construction-related permits;
• Certificates of compliance and/or lot line adjustments;
• Street, drainage, utility, stormwater, and landscape permits;
• Encroachment permits;
• Occupancy permits; and
• Environmental review documents for the Settlement Program.
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24. "Development Fees" means all taxes, fees, or other exactions charged by the City in
connection with the development of land, including the application, processing, approval,
and/or issuance of Development Approvals or Land Use Regulations. Development Fees
include, but are not limited to, development impact fees imposed pursuant to California's
Mitigation Fee Act. Other examples of Development Fees include inspection, plan check,
utility capacity, service, connection, library, cultural enrichment, park, flood control,
stormwater management, mitigation, and public facilities fees.
25. "Director" means the Director of Community Development of the City.
26. "Effective Date" means the date on which the Adopting Ordinance has become effective
as provided by California law.
27. "Estoppel Certificate" means a written statement issued pursuant to Section 12.11.
28. "Exhibit" means an exhibit to this Agreement, unless otherwise expressly stated.
29. "Existing Land Use Regulations" means all Land Use Regulations in effect on the Effective
Date, including those Required Approvals which are Land Use Regulations. However,
changes to Land Use Regulations adopted (as opposed to becoming effective) between
the Approval Date and the Effective Date shall not be considered part of the Existing Land
Use Regulations without Developer's prior written consent. Developer shall be deemed to
have consented to those Required Approvals which, though approved on the Approval
Date, are not effective until the Effective Date.
30. "Final Map" means a final parcel map or final tract map for the Development, as defined
in the Subdivision Map Act and the Zoning Code.
31. "General Plan" means the General Plan of the City in effect on the Approval Date and as
amended through the GPA.
32. "Goodell Conveyance" means the conveyance of the Goodell Property to either a
governmental agency or a Qualifying Non-Profit Organization, such as the BCLT,
acceptable to the City,for Open Space and Conservation Uses.
33. "Goodell Option" means Developer's option to acquire the Goodell Property as described
in Section 4.
34. "Goodell Property" means the approximately 6.2-acre parcel designated on Exhibit B as
the "Goodell Property."
35. "GPA" means the amendment of the General Plan through the City Council's adoption of
General Plan Amendment No. 16-002 for the Windward Property.
36. "Implementation Documents" means those documents needed to complete the
Windward and Goodell Conveyances, as well as the Deed Restrictions.
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37. "Land Use Regulations" means all ordinances, resolutions, codes, rules, regulations,
moratoria, initiatives,12 and official policies of the City governing the development and
use of land, including, without limitation, the General Plan and each of its elements
(including the Coastal Element), zoning ordinances, subdivision ordinances (but not
Tentative or Final Maps, which are Development Approvals), specific plans, and their
respective amendments. Land Use Regulations govern, among other things, the
permitted use of land,the density or intensity of use,timing and phasing of development,
the maximum height and size of buildings, the provisions for reservation or dedication of
land for public purposes, and the design, improvement, construction, and initial
occupancy standards and specifications applicable to the Development. Land Use
Regulations do not include any City ordinance, resolution, code, rule, regulation or official
policy governing:
• The conduct or taxation of businesses, professions, and occupations applicable to all
businesses, professions, and occupations in the City;
• Taxes and assessments of general application upon all residents of the City, provided
that the taxes and assessments are not imposed for the purpose of taxing the right,
power or privilege of developing or improving land (e.g., excise tax) or to directly
finance the acquisition or dedication of open space or any other public improvement
for which Developer is paying any fee (directly or through an assessment or similar
financing district) or providing any improvement pursuant to this Agreement; or
38. "LCPA" means Local Coastal Program Amendment No. 16-002, as approved by the City
and certified by the Coastal Commission on terms acceptable to Developer, and
consisting of (1) an amendment to the Coastal Element of the City's General Plan which
functions as the Land Use Plan portion of the LCP, and (2) the "Windward Specific Plan,"
comprised of a Zoning Text Amendment and a Zoning Map Amendment to the
Implementation Plan portion of the Local Coastal Program.
39. "Map" means Tentative Tract Map No. 18060 for the Windward Property which was
approved by the City Council on the Approval Date.
40. "Minor Changes" means any change to the Development that does not modify the Term,
alter the permitted uses, increase the density or intensity of uses, increase the maximum
height or size of buildings, or eliminate Developer's obligation to make the Windward and
Goodell Conveyances.
41. "Mortgage" means any mortgage, deed of trust,or other security device recorded against
some or all of the Windward Property or improvements to the Windward Property for the
purpose of securing a debt or other obligation.
12 Because initiatives and moratoria, no matter how enacted, are legislative acts, they are Land Use Regulations.
Therefore,any initiative or moratorium adopted after the Approval Date, no matter how enacted, is,for purposes
of this Agreement,a Subsequent Land Use Regulation.
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42. "Mortgagee" means a mortgagee of a Mortgage, a beneficiary under a deed of trust or
any other security device, a lender, and their successors and assigns.
43. "Notice" means any notice, demand, or correspondence required or permitted by this
Agreement.
44. "Open Space and Conservation Uses" means, and is limited to, pedestrian trails,
observation areas and platforms, interpretive signs and displays, native landscaping, trail
fencing, habitat restoration, any additional uses set forth in the Mitigation Plan prepared
pursuant to Consent Cease and Desist Order No. CCC-12-CD-01 and Consent Restoration
Order No. CCC-12-RO-01, both approved by the Coastal Commission on September 11,
2013, and any other open space, resource protection, and conservation uses that are
later approved through an amendment of the LCP approved by the City and certified by
the Coastal Commission.
45. "Party" or "Parties" means either City or Developer or both, as determined by the
context.
46. "Periodic Review" means the review by the City of Developer's good faith compliance
with the terms of this Agreement pursuant to Section 6.
47. "Planning Commission" means the Planning Commission of the City.
48. "Project Grading Permit" means grading permits for the development of the Windward
Residential Parcel (this is not intended to include permits related to studies, surveys, or
architectural grading).
49. "Qualifying Non-Profit Organization" means a non-profit 501(c)3 organization that is
BCLT or an accredited Land Trust.
50. "Required Approvals" means the following:
® City approvals:
a) Approval of Local Coastal Program Amendment No. 16-002 (the "LCPA"), consisting
of General Plan Amendment No. 16-002 (the "GPA") and Specific Plan No. 16,
adopted through the approval of Zoning Map Amendment No. 16-003 and Zoning
Text Amendment No. 16-004(the "Specific Plan").
b) Approval of and entry into this Agreement; and
c) Approval of Coastal Development Permit No. 16-018 (the "CDP"), consisting of
Conditional Use Permit No. 16-035 (the "CUP") and Tentative Tract Map No. 18060
(the "Map").
• Coastal Commission actions:
a) Certification of the LCPA, consisting of (1) an amendment to the Coastal Element of
the City's General Plan which functions as the Land Use Plan portion of the LCP, and
(2) the "Windward Specific Plan," comprised of a Zoning Text Amendment and a
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Zoning Map Amendment to the Implementation Plan portion of the Local Coastal
Program; and
b) To the extent, if any, required by Government Code Section 65869, approval of this
Agreement.
51. "Retained Property" means any portion of the Windward Property not included within an
Assignment, as set forth in Section 11.3.
52. "Section" refers to a numbered section of this Agreement, unless specifically stated to
refer to another document or matter.
53. "Settlement" means the April 2016 settlement of litigation between Developer, the City,
and the BCLT related to the City's approval in 2010 of a project known as "The Ridge"
which was proposed for the Windward Property.
54. "Settlement Program" means the Windward Conveyance, the Goodell Conveyance, and
the Development, collectively and to the full extent permitted by the Applicable Rules.
55. "Specific Plan" means Specific Plan No. 16 for the Windward Property, including future
amendments to which Developer has consented in writing. The Specific Plan was adopted
pursuant to Zoning Map Amendment No. 16-003 and Zoning Text Amendment No. 16-
004.
56. "Subsequent Development Approvals" means all Development Approvals to which
Developer has consented and which are approved, granted, or issued for the
Development on or after the Approval Date, including, but not limited to, the CUP, the
Map, and the CDP.
57. "Subsequent Land Use Regulations" means those Land Use Regulations which are both
adopted and effective after the Approval Date and which are not included within the
definition of Existing Land Use Regulations. "Subsequent Land Use Regulations" include
any Land Use Regulations adopted by moratorium, initiative, City action,or otherwise.
58. "Tentative Map" means a tentative parcel map or tentative tract map, as defined in the
Subdivision Map Act and the Zoning Code,for the Development.
59. "Term" means the term of this Agreement as set forth in Section 3.
60. "Third-Party Action" means any legal action, including appellate review, which is brought
with respect to this Agreement by a person or entity other than one of the Parties,
including, but not limited to, a governmental entity or official.
61. "TPL" means the Trust for Public Land.
62. "TPL Option" means the option agreement entered into between Developer and the
Trust for Public Land for the purchase of the entire Windward Property and the Goodell
Property, subject to the contingencies contained in the Settlement.
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63. "Transferred Property" means all or that portion of the Windward Property which is the
subject of an Assignment by Developer.
64. "Windward Conveyance" means the conveyance of that portion of the Windward
Property other than the Windward Residential Parcel to either a governmental agency or
a Qualifying Non-Profit Organization, such as the BCLT, acceptable to the City, for Open
Space and Conservation Uses.
65. "Windward Open Space Parcel" means that portion of the Windward Property identified
as the "Windward Open Space Parcel" on Exhibit B.
66. "Windward Property" means the approximately 5-acre parcel of land which is more
particularly described in Exhibit A and depicted as the "Windward Property" on Exhibit B.
67. "Windward Residential Parcel" refers to that portion of the Windward Property
designated on Exhibit B as"Windward Residential Parcel."
68. "Zoning Code" means the Huntington Beach Zoning and Subdivision Ordinance (HBZSO).
69. "Zoning Map Amendment" means Zoning Map Amendment No. 16-003.
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EXHIBIT A
WINDWARD PROPERTY LEGAL DESCRIPTION
PROPOSED TRACT NO. 17294, BEING A SUBDIVISION OF:
THAT PORTION OF THE NORTHWEST QUARTER OF SECTION 28,TOWNSHIP 5 SOUTH, RANGE 11
WEST, IN THE RANCHO LA BOLSA CHICA, AS SHOWN ON A MAP RECORDED IN BOOK 51, PAGE
13 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA, INCLUDED WITHIN
THE FOLLOWING DESCRIBED LAND:
BEGINNING AT THE NORTHEASTERLY CORNER OF THAT CERTAIN 6.2 ACRE PARCEL OF LAND
DESCRIBED IN QUITCLAIM DEED TO DONALD E. GOODELL RECORDED NOVEMBER 5, 1959 IN
BOOK 4960, PAGE 87 OF OFFICIAL RECORDS OF SAID ORANGE COUNTY; THENCE SOUTH 89° 58'
30" WEST 450.00 FEET ALONG THE NORTHERLY LINE OF SAID 6.2 ACRE PARCEL TO A ANGLE
POINT IN PARCEL 2 OF CERTIFICATE OF COMPLIANCE NO. 92-01 RECORDED SEPTEMBER 2, 1992
AS INSTRUMENT NO, 92-589755 OF SAID OFFICIAL RECORDS; THENCE ALONG THE EASTERLY
LINE OF SAID LAST ABOVE MENTIONED PARCEL 2, THE FOLLOWING COURSES: CONTINUING
SOUTH 89° 58' 30" WEST 323.00 FEET AND NORTH 34° 02' 08" WEST 604.67 FEET TO A LINE
PARALLEL WITH AND 30.00 FEET SOUTHERLY OF THE CENTERLINE OF LOS PATOS AVENUE AS
SHOWN ON A MAP FILED IN BOOK 92, PAGES 19 THROUGH 28 OF RECORD OF SURVEYS, IN THE
OFFICE OF SAID COUNTY RECORDER; THENCE ALONG SAID PARALLEL LINE AND ITS EASTERLY
PROLONGATION, THE FOLLOWING COURSES: SOUTH 89° 21' 32" EAST 639.80 FEET AND SOUTH
89° 35' 35" EAST 90.18 FEET; THENCE NORTH 0° 10' 29" EAST 30.00 FEET TO THE WESTERLY
PROLONGATION OF THE SOUTHERLY LINES OF TRACT NO. 10853 RECORDED IN BOOK 513,
PAGES 14 THROUGH 15 AND TRACT NO. 5792 RECORDED IN BOOK 220, PAGES 8 THROUGH 11,
BOTH OF SAID MISCELLANEOUS MAPS; THENCE SOUTH 89° 35' 35" EAST 383.00 FEET ALONG
SAID WESTERLY PROLONGATION TO THE NORTHERLY PROLONGATION OF THE EASTERLY LINE
OF SAID 6.2 ACRE PARCEL; THENCE SOUTH 0° 10' 29" WEST 520.23 FEET ALONG SAID
NORTHERLY PROLONGATION TO THE POINT OF BEGINNING.
EXCEPTING THEREFROM THAT PORTION DESCRIBED IN DEED TO THE CITY OF HUNTINGTON
BEACH RECORDED FEBRUARY 28, 2000 AS INSTRUMENT NO. 20000104631 OF SAID OFFICIAL
RECORDS.
ALSO EXCEPTING THEREFROM THAT PORTION INCLUDED WITHIN TRACT NO. 15734,AS SHOWN
ON A MAP RECORDED IN BOOK 797, PAGES 40 TO 42 INCLUSIVE, OF SAID MISCELLANEOUS
MAPS.
APN: 110-016-35
A-1
EXHIBIT B
DEPICTION OF THE WINDWARD PROPERTY,THE WINDWARD RESIDENTIAL PARCEL,THE
WINDWARD OPEN SPACE PARCEL,AND THE GOODELL PROPERTY
: . ~ _.
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P Windward Wi dward
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Residential' O . Space
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Exhibit B
Windward Development Agreement
City of Huntington Beach 1 I I I K i �;
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B-1
EXHIBIT C
GOODELL PROPERTY LEGAL DESCRIPTION
COMMENCING AT THE POINT OF INTERSECTION OF THE CENTER LINES OF BOLSA CHICA STREET
AND LOS PATOS AVENUE, BOTH 60 FEET WIDE, AS SAID STREETS ARE SHOWN ON THE MAP OF
TRACT 86, BLOCK 20, COAST BOULEVARD FARMS, RECORDED IN BOOK 10, PAGES 35 AND 36,
OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE RECORDER OF SAID COUNTY; THENCE
SOUTH 0°42' 01" EAST 523.80 FEET; THENCE NORTH 89°06' 00" EAST 23.00 FEET TO THE TRUE
POINT OF BEGINNING. THENCE CONTINUING NORTH 89° 06' 00" EAST 450.00 FEET; THENCE
SOUTH 0° 42' 01" EAST 600 FEET; THENCE SOUTH 89° 06' 00" WEST 450 FEET: THENCE NORTH
0°42'01" WEST 600 FEET TO THE TRUE POINT OF BEGINNING. CONTAINING 6.20 ACRES.
APN: 110-016-18
C-1
Ord. No. 4135
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss:
CITY OF HUNTINGTON BEACH )
I, ROBIN ESTANISLAU,the duly elected, qualified City Clerk of the
City of Huntington Beach, and ex-officio Clerk of the City Council of said City, do
hereby certify that the whole number of members of the City Council of the City of
Huntington Beach is seven; that the foregoing ordinance was read to said City Council at
a Regular meeting thereof held on May 21,2018, and was again read to said City
Council at a Regular meeting thereof held on June 4, 2018, and was passed and adopted
by the affirmative vote of at least a majority of all the members of said City Council.
AYES: O'Connell, Semeta, Peterson, Posey, Delgleize, Brenden
NOES: Hardy
ABSENT: None
ABSTAIN: None
I,Robin Estanislau,CITY CLERK of the City of Huntington
Beach and ex-officio Clerk of the City Council,do hereby
certify that a synopsis of this ordinance has been published in
the Huntington Beach Wave on June 14,2018.
In accordance with the ity Charter of said City. 9"6714,74A.4)
obin Estanislau, City Clerk City Clerk and ex-officio Clerk
se f De a Cit Clerk of the City Council of the City
of Huntington Beach, California