HomeMy WebLinkAboutPC2023-014 - RECOMMENDING CITY COUNCIL APPROVAL OF AN ADDENDUM TO MITIGATED NEGATIVE DECLARATION NO. ND2010-008, GENERAL PLAN AMENDMENT, LOCAL COASTAL PROGRAM AMENDMENT, PLANNED COMMUNITY DEVELOPMENT PLAN AMENDMENT, AND DEVELOPMENT AGREEMENT FOR THE TENNRESOLUTION NO. PC2023-014 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY
OF NEWPORT BEACH, CALIFORNIA RECOMMENDING CITY COUNCIL APPROVAL OF AN ADDENDUM TO MITIGATED NEGATIVE DECLARATION NO. ND2010-008, GENERAL PLAN AMENDMENT, LOCAL COASTAL PROGRAM AMENDMENT, PLANNED COMMUNITY DEVELOPMENT PLAN AMENDMENT,
AND DEVELOPMENT AGREEMENT FOR THE TENNIS CLUB AT NEWPORT BEACH LOCATED AT 1602 EAST COAST HIGHWAY (PA2021-260) THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS
FOLLOWS:
SECTION 1. STATEMENT OF FACTS. 1. An application was filed by Golf Realty Fund, Managing Owner (“Applicant”), with respect
to property located at 1602 East Coast Highway, and legally described as Parcels A, B, C,
and D of Parcel Map No. 2016-151 (“Tennis Club Site” or “Property”). 2. On January 24, 2012, the City Council authorized the redevelopment of the Property to include a reconstruction of the 3,725-square-foot tennis clubhouse, a reduction of tennis
courts from 24 to seven (7) courts, and a construction of 27-room boutique hotel with 9,700
square feet of ancillary uses, and five (5) single-family residential units. On November 20, 2018, the Zoning Administrator approved Coastal Development Permit No. CD2017-039, authorizing the redevelopment of the Property consistent with the 2012 approval (“Approved Project”).
3. On November 2, 2021, an application was filed by the Applicant with respect to the Tennis Club Site proposing an amendment to the Approved Project to include one (1) additional tennis court for a total of eight (8) courts, 14 additional hotel rooms for a total of 41 rooms, additional ancillary hotel uses, and three (3) attached condominium units and two (2)
detached single-family residences in-lieu of five (5) detached single-family residences
(“Revised Project”). 4. On September 8, 2022, the Planning Commission conducted a public hearing on the Revised Project, 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 California Government Code Section 54950 et seq. (“Ralph M. Brown Act”), California Government Code Section 65867, Section 15.45.050 (Public Hearing-Notice) of the Newport Beach Municipal Code (“NBMC”) and Chapters 20.62 (Public Hearings) and 21.62 (Public Hearings) of the NBMC. Evidence, both written and
oral, was presented to, and considered by, the Planning Commission at this hearing. At
the conclusion of the public hearing, the Planning Commission voted 5-0 (5 ayes, 1 absent, and 1 recused) to adopt Resolution No. PC2022-022, recommending the City Council approve the Revised Project.
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5. On September 27, 2022, the City Council conducted a public hearing on the Revised Project, 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 the (“Ralph M. Brown Act”), California Government Code Section 65867, Section 15.45.050 (Public Hearing-Notice) of the NBMC and Chapters 20.62 (Public Hearings) and 21.62 (Public Hearings) of the NBMC. Evidence, both written and oral, was presented to, and considered by, the City Council at this hearing. The main
topics discussed by the City Council included the interim use of existing pickleball courts,
the process for a future conversion of tennis courts to pickleball courts, and potential impacts that may be created by the Revised Project. At the conclusion of the public hearing, the City Council failed to approve the Revised Project (2 ayes, 5 nays). Subsequent to the failed motion, the City Council remanded the Revised Project (6 ayes,
1 nay) to the Planning Commission for further consideration of the pickleball use. 6. On October 11, 2022, City Council adopted a motion to reconsider the Revised Project (4 ayes, 3 nays).
7. On October 25, 2022, the City Council conducted a public hearing to reconsider the
Revised Project, 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 the Ralph M. Brown Act, California Government Code Section 65867, and Section 15.45.050 (Public Hearing-Notice) of the NBMC and Chapters 20.62
(Public Hearings) and 21.62 (Public Hearings) of the NBMC. Evidence, both written and
oral, was presented to, and considered by, the City Council at this hearing. The main topics discussed by the City Council included the potential for pickleball courts and at the conclusion of the public hearing, the City Council failed to approve the Revised Project (2 ayes, 5 nays). Subsequent to the first motion, the City Council adopted a
second motion (5 ayes, 2 nays) to continue the item to a future meeting after the
Planning Commission consideration of development that includes pickleball courts. 8. On December 6, 2022, the Applicant submitted a revised application which includes pickleball courts. The Applicant is requesting land use approvals to amend the Approved
Project which consists of the following:
a. Decrease the number of future tennis courts from seven (7) to four (4) tennis courts and add 14 pickleball courts; b. Increase the number of future hotel rooms from 27 to 41 rooms;
c. Increase the gross floor area of ancillary hotel uses by 4,686 square feet, for a total
of 14,386 square feet; d. Provide three (3) attached condominium units and two (2) single family residences in-lieu of five (5) single-family residences; and e. A Development Agreement which includes the aforementioned changes to the
Approved Project for a term of 10 years (“Project”).
The following approvals are requested or required in order to consider the Project:
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a. General Plan Amendment (“GPA”) – An amendment to Anomaly No. 46 of Table LU2 of the 2006 Newport Beach General Plan Land Use Element to document the
conversion of 17 tennis courts to 27 hotel rooms and assignment of five residential units
authorized by City Council Resolution No. 2012-10, and amend the following: 1. The addition of 14 hotel rooms for a total of 41 rooms; 2. The reduction of three (3) tennis courts for a total of four (4) tennis courts; and 3. The addition of 14 pickleball courts
b. Local Coastal Program Amendment (“LCPA”) – An amendment to Section
21.26.055.S.2 (Planned Community Coastal Zoning District Development Standards, Newport Beach Country Club (PC-47, Tennis Club) of the NBMC to modify the permitted uses and development standards allowed on the Property; c. Planned Community Development Plan Amendment (“PCDP Amendment”) – An
amendment to Planned Community Development Plan No. 47 (Newport Beach
Country Club Planned Community) to amend land use regulations and development standards on the Property; d. Development Agreement (“DA”) – A Development Agreement between the Applicant and the City, pursuant to Sections 15.45.020(A)(2)(c) (Buildings and Construction,
Development Agreements Required, Development Agreement Required) and
15.45.070 (Buildings and Constructions, Development Agreements, Amendment/Cancellation) of the NBMC, which would provide vested right to develop the Project for a term of ten (10) years and provide negotiated public benefits to the City; and
e. Addendum to previously adopted Mitigated Negative Declaration No. ND-2010-008 (SCH2010091052) (“Addendum”) – Pursuant to the California Environmental Quality Act (“CEQA”), the Addendum addresses reasonably foreseeable environmental impacts resulting from the Project.
9. The Property is designated Mixed-Use Horizontal 3/Parks and Recreation (MU-H3/PR) by
the General Plan Land Use Element and is located within the Newport Beach Country Club Planned Community (PC-47) Zoning District. 10. The Property is located within the coastal zone. The Coastal Land Use Plan category is
Mixed-Use Horizontal/Parks and Recreation (MU-H/PR) and it is located within the
Newport Beach Country Club Planned Community (PC-47) Coastal Zone District. 11. A public hearing was held on March 23, 2023 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 the Ralph M. Brown Act, California Government
Code Section 65867, Chapters 20.62 (Public Hearings) and 21.62 (Public Hearings) of the NBMC, and Section 15.45.050 (Public Hearing-Notice) of the NBMC. Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this hearing.
SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. 1. On March 27, 2012, the Newport Beach City Council approved Mitigated Negative Declaration No. ND2010-008 (SCH 2010091052) and an Errata to Mitigated Negative
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Declaration No. ND2010-008 (“MND”) that addressed the potential environmental effects associated with the Approved Project. The MND was prepared in compliance
with the California Environmental Quality Act as set forth in Section 21000 et seq. of the
California Public Resources Code (“CEQA”), the State CEQA Guidelines set forth in Title 14, Division 6, Chapter 3 of the California Code of Regulations, (“CEQA Guidelines”), and City Council Policy K-3.
2. Pursuant to Section 21166 of the California Public Resources Code and Section 15162
of the CEQA Guidelines, when a negative declaration adopted for a project, no subsequent negative declaration is required unless the lead agency determines, on the basis of substantial evidence in the light of the whole record, one or more of the following:
a. Substantial changes are proposed in the project which will require major revisions of the previous negative declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects;
b. Substantial changes occur with respect to the circumstances under which the project
is undertaken which will require major revisions of the previous negative declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; or c. New information of substantial importance, which was not known and could not have
been known with the exercise of reasonable diligence at the time the negative
declaration was adopted as complete, shows any of the following: i. The project will have one (1) or more significant effects not discussed in the previous negative declaration.
ii. Significant effects previously examined will be substantially more severe than shown in the adopted negative declaration. iii. Mitigation measures or alternatives previously found not to be feasible would in
fact be feasible and would substantially reduce one or more significant effects of
the project, but the project proponents decline to adopt the mitigation measure or alternative; or iv. Mitigation measures or alternatives which are considerably different from those
analyzed in the previous negative declaration would substantially reduce one or
more significant effects on the environment, but the project proponents decline to adopt the mitigation measure or alternative. 3. Although the Project necessitates an amendment to the General Plan to increase the
number of hotel rooms, reduce the number of tennis courts and reconfigure several of
the remaining tennis courts to pickleball courts, there are no proposed changes to the land uses permitted per the General Plan land use designation. Additionally, based on the changes associated with the Project, there are no conditions that would require the preparation of a subsequent or supplemental MND. As a result, an Addendum to the
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MND (“Addendum”) was prepared pursuant to Section 15162 (Subsequent EIRs and Negative Declarations) and 15164 (Addendum to an EIR or Negative Declaration) of the
CEQA Guidelines.
4. The following environmental topics were analyzed for the Project: Aesthetics, Air Quality, Biological Resources, Cultural Resources, Energy, Geology and Soils, Greenhouse Gas Emissions, Hazards and Hazardous Materials, Hydrology and Water
Quality, Land Use and Planning, Noise, Population and Housing, Public Services,
Recreation, Transportation, Utilities and Service Systems, and Wildfire. The Addendum includes analysis of new topics that were not included in the previous MND; specifically, it includes a new energy section and a new wildfire section. These additional analyses are appropriate for inclusion in the Addendum, but none result in new or increased
significant impacts that would require preparation of a subsequent MND pursuant to
Section 15162 of the CEQA Guidelines. 5. On the basis of the MND and entire environmental review record, the reduction of three (3) tennis courts and addition of 14 pickleball courts, 14 hotel rooms, and 4,686 square
feet of ancillary hotel uses, and conversion of three single-family residences to
condominium units will not result in any new significant impacts that were not previously analyzed in the MND. The Addendum confirms and provides substantial evidence that the potential impacts associated with this Project would either be the same or less than those described in the MND, or as mitigated by applicable mitigation measures in the
MND. 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 MND, nor has any new information regarding the potential for new or more severe significant environmental impacts been identified. Therefore, in accordance with Section 15164 of the CEQA Guidelines, an
Addendum to the previously adopted MND is the appropriate environmental document
for the Project. In taking action to approve any of the requested applications for the Project, the data presented in the MND, as augmented by the Addendum for this Project, are considered as part of the record.
6. The Addendum to the MND, is hereby recommended for adoption by the City Council
given its analysis and conclusions. The Addendum to the MND and related referenced documentation, constitute the administrative record upon which this decision was based, are on file with the Planning Division, City Hall, 100 Civic Center Drive, Newport Beach, California.
7. The Planning Commission 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 3. REQUIRED FINDINGS.
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General Plan Amendment
An amendment to the 2006 Newport Beach General Plan Land Use Element is a legislative act. Neither Title 20 (Planning and Zoning) nor California Government Code Section 65000 et
seq., set forth any required findings for either approval or denial of such amendments. Finding and Facts in Support of Findings:
1. As part of the Approved Project, the City Council adopted Resolution No. 2012-10, which authorized the conversion of 17 tennis courts to 27 hotel rooms along with the redevelopment of the Property. The Approved Project included a 3,725-square-foot tennis clubhouse and seven tennis courts, five single-family residential units, and a 27-
room boutique hotel with a 2,200 square-foot concierge and guest meeting facility and a 7,500 square-foot spa and fitness center. The City Council found that the conversion of tennis courts to hotel rooms is consistent with the General Plan based on the following:
a. The Project provides revitalization to Newport/Fashion Island area where the General Plan encourages additional hotel development and housing units; and b. The conversion does not create traffic impacts. At the time of the conversion, the 17 tennis courts generated 658 average daily trips based upon ITE Trip Generation Rates (7th edition), while the 27 hotel rooms generated 221 average daily trips,
resulting in a net decrease of 389 daily trips. 2. The Project includes a GPA to amend the development limits for Anomaly 46. The development limits will be updated to reflect 41 hotel rooms, 27 of which have been approved by the conversion of 17 unused tennis courts as part of the Approved Project.
The GPA will also include a reduction of the seven (7) tennis courts of the Approved Project to four (4) tennis courts, as well as 14 pickleball courts. No change to the 3,725-square-foot tennis and pickleball clubhouse is proposed. Finally, a maximum of five (5) residential units has been specified in the Anomaly table. The GPA does not include a change in land use designation and would remain as Mixed-Use Horizontal 3/Parks and
Recreation (MU-H3/PR). 3. The GPA for the Project is consistent with the following City of Newport Beach General Plan Land Use policies, applicable to the Project (additional policy analysis is included in the MND Addendum attached hereto as Exhibit “A”):
a. Land Use Element Policy LU1.1 (Unique Environment). Maintain and enhance
the beneficial and unique character of the different neighborhoods, business districts,
and harbor that together identify Newport Beach. Locate and design development to reflect Newport Beach’s topography, architectural diversity, and view sheds.
The Project includes an amendment to the PC-47 District regulations on the Tennis Club sites and reflects the proposed development on the Property. PC-47 will continue to guide development occurring within the Property. The development
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standards address building height, setbacks, landscaping, and architectural character. The standards are intended to ensure that the City’s unique character is
maintained through land use and architectural diversity.
b. Land Use Element Policy LU1.2 (Citywide Identity). While recognizing the
qualities that uniquely define its neighborhoods and districts, promote the identity of the entire City that differentiates it as a special place within the Southern California
region.
The area in which the Property is located is characterized by a variety of residential, commercial, and recreational land uses that reflect a range of architectural styles, which contribute to the unique character of the City. The intensity and architectural
character of the Project are compatible with the variety of densities and styles within
the area, which are consistent with the identity of the City. The architectural character of the Project, including the bungalow-style hotel rooms, detached residential units, and attached residential loft buildings, is consistent with the City’s desire to differentiate Newport Beach from other coastal cities.
c. Land Use Element Policy LU2.1 (Resident-Serving Land Uses). Accommodate
uses that support the needs of Newport Beach’s residents including housing, retail,
services, employment, recreation, education, culture, entertainment, civic engagement, and social and spiritual activity that are in balance with community
natural resources and open spaces.
The Project will continue to provide residents with recreational opportunities, culture, entertainment, and civic engagement. The proposed GPA remains supportive of recreational uses by providing four (4) tennis courts and 14 pickleball courts. The
Project also includes an additional 14 hotel rooms to the previously approved 27-unit
hotel development with additional hotel amenities for club members such as a Performance Therapy Center and a Yoga Pavilion.
d. Land Use Element Policy LU.2.6 (Visitor Serving Uses). Provide uses that serve
visitors to Newport Beach’s ocean, harbor, open spaces, and other recreational
assets, while integrating them to protect neighborhoods and residents
The Project provides visitors with an updated recreational facility as it includes a new tennis and pickleball clubhouse, four (4) tennis courts and 14 pickleball courts. Two
(2) of the 14 pickleball courts are proposed to be located within a new stadium. The
tennis and pickleball club is adjacent to the golf course with amenities and is within 2,000 feet from the Newport Bay. The proposed 41 hotel rooms provide additional opportunities for visitors to enjoy the tennis and pickleball club and nearby recreational activities.
e. Land Use Element Policy LU3.2 (Growth and Change). Enhance existing
neighborhoods, districts, and corridors, allowing for reuse and infill with uses that are
complementary in type, form, scale, and character. Changes in use and/or density/intensity should be considered only in those areas that are economically
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underperforming, are necessary to accommodate Newport Beach’s share of projected regional population growth, improve the relationship and reduce
commuting distance between home and jobs, or enhance the values that distinguish
Newport Beach as a special place to live for its residents. The scale of growth and
new development shall be coordinated with the provision of adequate infrastructure
and public services, including standards for acceptable traffic level of service.
The character of the tennis and pickleball club, hotel development, and residential
units are compatible with the existing land uses and development intensities of the surrounding area. Although the reduction of three (3) tennis courts and addition of 14 hotel rooms and 14 pickleball courts requires amendments to adopted plans and regulations, the existing tennis club and hotel development that are the substance of
the Approved Project are allowed under the existing General Plan. The Project has
been designed to be compatible with the existing residential, commercial, and recreational uses located within the vicinity of the Property. In addition, the surrounding area is adequately served by existing infrastructure, including circulation, water, sewer, and storm drainage systems. As a result, the
implementation of the Project will not adversely affect those systems or the provision
of adequate service to nearby development.
f. Land Use Element Policy LU3.3 (Opportunities for Change). Provide opportunities for improved development and enhanced environments for residents
in the following districts and corridors, as specified in Polices 6.3.1 through 6.22.7:
Fashion Island/Newport Center: expanded retail uses and hotel rooms and
development of residential in proximity to jobs and services, while limiting increases
in office development.
The Project provides enhancement to the Property, which is currently being used
exclusively as a tennis club with 31 interim pickleball courts. The Project will include 41 hotel rooms and ancillary uses, and five (5) residential units. The Project includes four tennis courts and 14 pickleball courts as well as the reconstruction of the tennis and pickleball clubhouse. The Project will be utilized as a recreational facility for
residents, guests, and club members.
g. Land Use Element Policy LU4.1 (Land Use Diagram). Accommodate land use
development consistent with the Land Use Plan.
The Project is consistent with the designation of the General Plan Land Use Element,
which designates the Property as MU-H3/PR. The Property is located within Anomaly 46, which allocates 24 tennis courts with residential permitted in accordance with the MU-H3 designation. The GPA includes an amendment to the Development Limit (Other) of Anomaly 46, to reduce the number of tennis courts to
four, add 14 pickleball courts, and include 41 hotel rooms.
h. Land Use Element Policy LU5.1.2 (Compatible Interfaces). Require that the
height of development in nonresidential and higher-density residential areas
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transition as it nears lower-density residential areas to minimize conflicts at the interface between the different types of development.
Although the Property is not located adjacent to lower density residential development, the Project has been designed to respect the proximity of the existing residential development adjacent to the Property. The amended PC-47 prescribes maximum building heights and setback requirements for each of the development
components to ensure land use compatibility. Building heights for the proposed
structures will range from 46 feet for the attached residential loft buildings, 39 feet for the detached residential units, 31 feet for the hotel rooms, and 30 feet for the tennis and pickleball clubhouse, which are within the maximum 50-foot building height allowed by PC-47.
i. Land Use Element Policy LU (5.3.3). Require that properties developed with a mix
of residential and non-residential uses be designed to achieve high levels of
architectural quality in accordance with Policies 5.1.9 and 5.2.1 and planned to assure compatibility among the uses and provide adequate circulation and parking.
Residential uses should be seamlessly integrated with non-residential uses through
architecture, pedestrian walkways, and landscape. They should not be completely
isolated by walls or other design elements.
The Project includes four tennis courts, 14 pickleball courts, 41 hotel rooms and
ancillary hotel uses, two (2) single family residences, and three (3) residential
condominium units. The Project provides adequate parking for each of the proposed uses. Vehicular and pedestrian circulation has been designed to accommodate the residents, as well as guests and members of the tennis club and hotel development. The architectural character of the uses is defined in PC-47 to ensure that
compatibility between proposed uses and the surrounding area is maintained.
j. Land Use Element Policy LU5.3.4 (Districts Integrating Residential and Nonresidential Uses). Require that sufficient acreage be developed for an individual use located in a district containing a mix of residential and non-residential
uses to prevent fragmentation and assure each use’s viability, quality, and
compatibility with adjoining uses.
Each of the uses has been designed to complement the overall Project. The uses are connected by the vehicular and pedestrian circulation system, including
sidewalks and pedestrian pathways. Land use compatibility is achieved through a
common landscape theme and design guidelines in PC-47 to ensure that the architectural integrity of the Project is not compromised.
k. Land Use Element Policy LU6.14.2 (Newport Center). Provide the opportunity for
limited residential, hotel, and office development in accordance with the limits
specified by Tables LU1 and LU2. The Project has a mix of land uses including single-family residential, attached residential condominiums, recreational tennis and pickleball club facilities, and
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visitor-serving commercial uses. These uses are permitted in Table LU1 under the MU-H3/PR land use designation. The GPA proposes to amend the development
limits of Table LU2 to include four tennis courts, 14 pickleball courts, and 41 hotel
rooms.
l. Land Use Element Policy LU6.14.6 (Pedestrian Connectivity and Amenity). Encourage that pedestrian access and connections among uses within the district
be improved with additional walkways and streetscape amenities concurrent with the
development of expanded and new uses. The Project provides for both pedestrian and vehicular access within the Property. Sidewalks and pedestrian pathways are incorporated into the circulation system that
are intended to accommodate pedestrians utilizing the tennis club, hotel facilities,
and future residents. A landscape plan has been provided which includes plant materials that are intended to reflect and complement the existing character within the project area.
4. Pursuant to California Government Code Section 65352.3 (SB18), a local government
is required to contact the appropriate tribes identified by the Native American Heritage Commission (“NAHC”) each time it considers a proposal to adopt or amend the General Plan. If requested by any tribe, the local government must consult for the purpose of preserving or mitigating impacts to cultural resources. The City received comments from
the NAHC indicating that twelve tribal contacts should be provided notice regarding the
proposed amendment. The tribal contacts were provided notice on June 9, 2022. Subsequently, City Staff corresponded with two (2) tribes, Gabrielino Tongva Indians of California and Juaneno Band of Mission Indians. On January 17, 2023, the aforementioned tribes were provided a courtesy notification that the application has
been modified to include pickleball courts. No further correspondence was requested by
either tribe. California Government Code Section 65352.3 requires notification 90 days prior to Council action to allow tribal contacts to respond to the request to consult. The 90-day notification period expired on September 7, 2022.
423 Charter Analysis
Finding: Charter Section 423 requires voter approval of any major General Plan amendment to the
General Plan. A major General Plan amendment is one that significantly increases allowed
density or intensity by 40,000 square feet of non-residential floor area, increases traffic by more than 100 peak hour vehicle trips (AM/PM), or increases residential dwelling units by 100 units. These thresholds apply to the total of increases resulting from the amendment itself, plus 80 percent of the increases resulting from other amendments affecting the same neighborhood
(defined as a Statistical Area as shown in the General Plan Land Use Element) and adopted
within the preceding ten years. Council Policy A-18 (Guidelines for Implementing Charter Section 423) requires that proposed amendments to the General Plan be reviewed to determine if a vote of the Newport Beach
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electorate would be required. This policy includes a provision that all General Plan amendments be tracked as “Prior Amendments” for ten years to determine if minor
amendments in a single Statistical Area cumulatively exceed the thresholds indicated above.
Facts in Support of Findings: 1. The Property is within Statistical Area L1. Prior amendments within the past ten years
are Vivante Senior Housing and Residences at Newport Center. Charter Section 423
counts 80 percent of prior increases, which results in a cumulative increase of 94 dwelling units, 23 AM trips, and 43 PM trips between both projects. There were no square footage increases.
2. The GPA results in an increase of 14,000 square feet (at the rate of 1,000 square feet
per hotel unit) of non-residential floor area, 26.21 AM trips, and 51.22 PM trips. When combined with 80 percent of the prior increases, this results in cumulative increases of 14,000 square feet of non-residential floor area, 49.21 AM trips, and 94.22 PM trips. As none of the thresholds specified by Charter Section 423 are exceeded, no vote of the
electorate is required if the City Council chooses to approve the GPA.
Local Coastal Program Amendment Finding:
As set forth in Section 30500 of the California Public Resources Code, the California Coastal Act requires each county and city to prepare a local coastal program (“LCP”) for that portion of the Coastal Zone within its jurisdiction. The California Coastal Commission effectively certified the City’s LCP Implementation Plan on January 13, 2017, and the City of Newport Beach
(“City”) added Title 21 (Local Coastal Program Implementation Plan) (“Title 21”) to the NBMC
whereby the City assumed coastal development permit-issuing authority as of January 30, 2017. Facts in Support of Findings:
An amendment to Title 21 is necessary to revise Section 21.26.055(S), specifically referring to the Newport Beach Country Club Planned Community (PC-47) development standards of the Tennis and Pickleball Club, residential units, and hotel:
1. Tennis and Pickleball Club - The LCPA modifies the density and intensity limit for the
number of tennis courts from seven (7) to four (4) courts and adds 14 pickleball courts. The additional courts increase the minimum required parking from 28 spaces to 72 spaces. There is no change to the 3,725-square-foot limit for the tennis and pickleball clubhouse.
2. Residential - The number of residential units remains unchanged. However, the LCPA
converts three (3) of the five (5) single-family residences to attached residential condominium units. Therefore, the amendment revises the density and intensity limit for residential use from five (5) to two (2) single family residences and removes previous development standards for Villas C, D, and E. The LCPA also includes new development
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standards for attached residential condominiums, which have a density limit of three (3) units and maximum gross floor area of 15,035 square feet. The maximum height allowed
for the attached residential buildings is 46 feet. The buildings are required to be set back
five (5) feet from any property line. The remaining single-family residences require a minimum of two (2) enclosed parking spaces and one (1) guest parking space per unit, while the proposed attached condominiums require a minimum of three (3) enclosed parking spaces and one (1) guest parking space per unit.
3. Hotel - The LCPA revises the density and intensity limits for the hotel from 27 to 41 short-term guest rental rooms. Additionally, the maximum allowable gross floor area increases from 28,300 to 47,484 square feet. Square footage for ancillary hotel uses are also included. A minimum of one (1) space per hotel unit is required.
4. The LCPA is consistent with other applicable land use policies of the Coastal Land Use Plan as provided below:
a. Coastal Land Use Element Policy 2.1.2-1 (District/Corridor Policies).
Development in each district and corridor shall adhere to policies for land use type
and density/intensity contained in Table 2.1.1-1, except as modified in Sections 2.1.3
to 2.1.8.
The MU-H/PR designation allows horizontally-distributed mix of uses, which may
include general or neighborhood commercial, commercial offices, multi-family
residential, visitor-servicing and marine-related uses, buildings that vertically integrate residential with commercial uses, and active public or private recreational uses, including parks, golf courses, marina support facilities, aquatic facilities, tennis clubs and courts, private recreation, and similar facilities.
The Project is consistent with the land use designation on the adopted Coastal Land Use Plan, which designates the subject property MU-H/PR (Mixed Use Horizontal/Parks & Recreation). The Project includes a mixture of uses which include a tennis club with four (4) tennis courts, 14 pickleball courts, a 41-unit hotel
development and ancillary uses, and five (5) residential units. All of these uses are
intended to provide an updated recreational facility to serve the residents and visitors of the City. Additionally, the residential units will supplement the City’s housing supply.
c. Coastal Land Use Element Policy 2.1.8-1 (Balboa Bay Tennis Club). Allow the
horizontal intermixing of short-term rental units and single-family homes with the
expanded tennis club faculties. Permitted uses include those permitted by the MU-H
and PR categories.
The Project includes the mix of 41 hotel rooms with five (5) residential units, which
consists of two (2) single-family residences and three attached condominium units. The hotel and residential uses are consistent with both the MU-H and PR categories.
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5. Pursuant to Section 13515 of the California Code of Regulations Title 14, Division 5.5, Chapter 8, drafts of the LCPA were made available and a Notice of Availability was
distributed on December 21, 2022, at least six (6) weeks prior to the anticipated final
action date. Planned Community Development Plan Amendment
The Property has a zoning designation of PC-47, which was adopted in 1997 by Ordinance 97-
10 as a part of the City-wide amendment to the districting maps in order to be consistent with the 1988 General Plan Land Use Element and Zoning Code. Development regulations through a Planned Community District Development Plan was not adopted when the PC District zoning designation was assigned to the Property.
On March 27, 2012, the City Council adopted a Planned Community Development Plan (PCDP), which is the zoning document to PC-47 to provide use regulations, density and intensity of the proposed uses, and very specific development regulations (building height, square footage, setbacks, and parking standards). The PCDP included architectural styling and
a complete internal vehicular and pedestrian circulation system for both the Golf and Tennis
Club sites. PC-47 also includes site development review regulations to ensure new development proposals within the Newport Beach Country Club are consistent with the goals and policies of the General Plan, provisions of PC-47, and the approved Development Agreement.
Findings: An amendment to PC-47, which is the zoning document for the Property, is a legislative act. Neither PC-47, Chapter 20.66 (Planning and Zoning, Amendments) and Chapter 20.56
(Planning and Zoning, Planned Community District Procedures) of Title 20 (Planning and
Zoning) of NBMC, or Article 2 (Adoption of Regulations) of Chapter 4 (Zoning Regulations) of Division 1 (Planning and Zoning) of Title 7 (Planning and Land Use) of the California Government Code set forth any required findings for either approval or denial of such amendments.
Facts in Support of Findings: The proposed amendment to PC-47 to allow an additional 14 hotel rooms and ancillary uses, a reduction of three (3) tennis courts and addition of 14 pickleball courts, and the conversion
of three (3) of five (5) single-family dwelling units to condominiums is consistent with the intent
of PC-47 and the purpose of Planned Community Districts as specified in NBMC Section 20.56.010 (Planning and Zoning, Planning Community District Procedures, Purpose) for the following reasons:
1. The Project is consistent with the intent and purpose of PC-47 in that the tennis club,
hotel, and residential uses and their development standards have already been allowed and are in place on the Property. The tennis club includes tennis courts and interim pickleball courts that are ancillary to the club and consistent with the intended recreational uses allowed at the Property. The proposed changes to the building height,
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Planning Commission Resolution No. PC2023-014 Page 14 of 21
setbacks, and parking standards in order to accommodate the Project are within the development standards in place for the Approved Project.
2. PC-47 provides guidelines for architectural design to include coordinated and cohesive architecture which exhibits quality that is keeping with the surrounding area in Newport Center. The Project includes additional hotel rooms and two (2) attached residential condominium loft buildings. The proposed additions have consistent architecture with
the Approved Project, which has cohesive architectural features that include smooth
plaster exterior siding, clay-tile roofs, and stone veneer exterior accent finishes. 3. PC-47 permits structures to be a maximum of 50 feet in height. The Project includes two (2) attached residential condominium loft buildings which features condominiums on the
third level atop of a two (2)-level hotel building. The loft buildings are proposed at a
maximum of 46 feet high and comply with the height limit. All other structures are consistent with the maximum heights prescribed in PC-47.
Development Agreement
On March 27, 2012, the City Council adopted Ordinance No. 2012-3 approving Development Agreement No. DA2008-001 (“Existing Agreement”) between the City and the Applicant for the Approved Project. The Existing Agreement was executed and recorded, as document number
2014000036369 on January 29, 2014, with a 10-year term.
On July 12, 2022, the City Council adopted Ordinance No. 2022-16, approving the First Amendment to DA2008-001 to extend the term of the Existing Agreement by one (1) year. The Existing Agreement will expire on September 23, 2023. With the Project including an amended
scope of work, the DA is required since it includes new non-residential development in
Statistical Area L1 (Newport Center/Fashion Island). Finding:
In accordance with Section 15.45.020(A)(2)(c) (Buildings and Construction, Development
Agreement, Development Agreement Required) of the NBMC, the DA is required as the Project, which includes an amendment to PC-47 and a General Plan Amendment to increase the number of hotel rooms from 27 to 41 rooms, which is new non-residential development in Statistical Area L1. Additionally, the Applicant requests an additional 10-year term of
agreement, pursuant to Section 15.45.070 (Buildings and Construction, Development
Agreement, Amendment/Cancellation) of the NBMC. The DA satisfies the requirements of Chapter 15.45 (Buildings and Construction, Development Agreements) of the NBMC as follows:
Facts in Support of Finding:
1. The DA provides assurance that the Applicant may proceed with the Project in accordance with existing policies, rules and regulations, and conditions of approval. Additionally, the DA helps the Applicant avoid a waste of resources and escalated costs
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Planning Commission Resolution No. PC2023-014 Page 15 of 21
of the Project while encouraging a commitment to private participation in comprehensive planning.
2. The DA specifies the term of Agreement for a period of 10 years, and describes the permitted uses, density and intensity, and maximum height and size of proposed buildings, consistent with the Project. Additionally, the DA includes all mandatory elements, including public benefits that are appropriate to support conveying the vested
development rights consistent with the City’s General Plan, NBMC, and Government
Code Sections 65864 et seq. 3. The DA includes a provision which states that the effective date is contingent upon final approval of the LCPA by the CCC. Subsequently, further discretionary approvals (eg.
Coastal development permit, site development review, tentative tract map, limited
permit, etc.) are also required to implement the Project as described by the DA. 4. Public benefits include the payment of ninety-three thousand dollars ($93,000) per each residential dwelling unit and $10 per square foot of construction for the tennis and
pickleball clubhouse.
5. If the DA is adopted, the existing Agreement is considered terminated. SECTION 4. DECISION.
NOW, THEREFORE, BE IT RESOLVED: 1. The Planning Commission of the City of Newport Beach hereby recommends the following to the City Council:
a. Adopt Mitigated Negative Declaration Addendum No. ND2022-001 to Mitigated Negative Declaration No. ND2010-008 and Errata to Mitigated Negative Declaration No. ND2010-008 (SCH 2010091052), which is attached hereto as Exhibit “A”, and incorporated herein by reference;
b. Approve the General Plan Amendment, which is attached hereto as Exhibit “B”, and incorporated herein by reference; c. Approved the Local Coastal Program Amendment, which is attached hereto as
Exhibit “C”, and incorporated herein by reference;
d. Approve the Planned Community Development Plan Amendment, which is attached hereto as Exhibit “D”, and incorporated herein by reference;
e. Approve termination of the Existing Agreement and approval of the Development
Agreement, which is attached hereto as Exhibit “E”, and incorporated herein by reference.
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Planning Commission Resolution No . PC2023-014
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PASSED, APPROVED, AND ADOPTED THIS 23Ro DAY OF MARCH, 2023.
AYES:
NOES:
Ellmore, Harris, Klaustermeier, Lowrey, and Rosene
None
RECUSED: Langford
ABSENT: Barto
BY: -----------
BY:
~kn -
Sarah Klaustermeier, Secretary
Attachments: Exhibit A-Mitigated Negative Declaration Addendum No. ND2022-001
to Mitigated Negative Declaration No. ND2010-008 and Errata
to Mitigated Negative Declaration No. ND2010-008
Exhibit B -
Exhibit C -
Exhibit D-
Exhibit E -
(SCH 2010091052)
General Plan Amendment to Anomaly No. 46 of Table LU2 of
the 2006 Newport Beach General Plan Land Use Element
Local Coastal Program Implementation Plan Amendment
Newport Beach Country Club Planned Community
Development Plan Amendment
Development Agreement
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Planning Commission Resolution No. PC2023-014
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EXHIBIT “A”
ADDENDUM TO MITIGATED NEGATIVE DECLARATION NO. ND2010-008 AND ERRATA TO
MITIGATED NEGATIVE DECLARATION NO. ND2010-008 (SCH NO. 2010091052)
Available separately due to bulk at:
www.newportbeachca.gov/ceqa
Planning Commission Resolution No. PC2023-014
Page 18 of 21
EXHIBIT “B”
GENERAL PLAN AMENDMENT TO ANOMALY NO. 46 OF TABLE LU2 OF THE 2006
NEWPORT BEACH GENERAL PLAN LAND USE ELEMENT
Anomaly
Number
Statistical
Area
Land Use
Designation
Development
Limit (sf)
Development Limit
(Other)
Additional
Information
46 L1 MU-H3/PR 3,725 24 Tennis Courts
4 Tennis Courts
14 Pickleball
Courts
41 Hotel Rooms
Residential
permitted in
accordance with
MU-H3.
5 residential units
permitted
Planning Commission Resolution No. PC2023-014
Page 19 of 21
EXHIBIT “C”
LOCAL COASTAL PROGRAM IMPLEMENTATION PLAN AMENDMENT
Local Coastal Program Implementation Plan Amendment Related to Development
Standards of the Tennis and Pickleball Club portion within the Newport Beach
Country Club Planned Community (PC-47) (PA2021-260)
Amend Section 21.26.055(S)(2)-(4) (Newport Beach Country Club) of Title 21 (Local
Coastal Program Implementation Plan) of the Newport Beach Municipal Code to read
as follows:
S. Newport Beach Country Club (PC-47).
2. Tennis and Pickleball Club.
a. Density/intensity limit: seven four (4) tennis courts, fourteen (14) pickleball
courts, and three thousand seven hundred twenty-five (3,725) square foot
clubhouse.
b. Height: thirty (30) feet for clubhouse.
c. Parking: twenty-eight (28) spaces seventy-two (72) spaces.
3. Residential.
a. Detached Residential The Villas
i. Density/intensity limit: five two single-family dwelling units.
ii. Development Standards:
Villa Dwelling Unit
Designation
Villa Single-Family
Dwelling A (TTM Lot #1)
Villa Single-Family Dwelling B
(TTM Lot #2)
Lot Size 5,000 square feet minimum
Lot Coverage (Maximum) 70% 65%
Building Height
39 feet, measured in accordance with the Height and Grade
definition of Section 2.0 General Conditions and
Regulations
Building Side Yard Setbacks 3 feet minimum
Building Front and Rear Yard
Setbacks 5 feet minimum
Enclosed Parking Space for
Each Unit 2 2
Open Guest Parking Space
for Each Unit
One space - could be located on the private driveway – No
overhang to the private street/cul-de-sac is allowed
b. Attached Residential (Condominiums)
i. Density/intensity limit: three (3) attached residential units.
ii. Development Standards:
Setbacks: 5 feet minimum from any property line
Height: 46 feet (to be located atop of the 2-story hotel buildings)
Parking: 3 enclosed spaces and one guest space per dwelling unit
4. (The Bungalows) Hotel
a. Density/Intensity Limit: The maximum allowable number of the bungalows
hotel rooms shall be twenty-seven (27) forty-one (41) short-term guest rental units
rooms. The maximum total allowable gross floor area for the hotel rooms shall be
twenty-eight thousand three hundred (28,300) forty-seven thousand four hundred
eighty-four (47,484) square feet with a two thousand two hundred (2,200) square-
foot concierge and guest center, four thousand six hundred eighty-six (4,686)
square feet of ancillary hotel uses, and a seven thousand five hundred (7,500)
square-foot spa facility.
b. Setbacks: five feet from any property line.
c. Height: thirty-one (31) feet.
d. Parking: thirty-four (34) parking spaces. forty-one (41) parking spaces.
Planning Commission Resolution No. PC2023-014
Page 20 of 21
EXHIBIT “D”
NEWPORT BEACH COUNTRY CLUB PLANNED COMMUNITY DEVELOPMENT PLAN
AMENDMENT
Newport Beach Country Club
Planned Community Development Plan
Adoption: March 27, 2012, Ordinance No. 2012-2
Amendment: ___, 2023, Ordinance No.__
2
TABLE OF CONTENTS
________________________________________________
1.0 Introduction and Purpose ............................................................................... 4
2.0 General Conditions and Regulations .............................................................. 5
3.0 Land Use and Development Regulations ....................................................... 10
3.1 Golf Club .............................................................................................. 10
A. Golf Course .................................................................................... 10
B. Golf Clubhouse and Ancillary Uses ................................................ 10
1. Building Area ............................................................................. 10
2. Building Height .......................................................................... 10
3. Permitted Ancillary Uses ........................................................... 10
4. Parking ...................................................................................... 11
5. Fencing ..................................................................................... 11
3.2 Tennis and Pickleball Club ................................................................... 11
A. Tennis and Pickleball Courts .......................................................... 11
1. Number of Courts ...................................................................... 11
B. Tennis and Pickleball Clubhouse and Ancillary Uses ..................... 12
1. Building Area ............................................................................. 12
2. Building Height .......................................................................... 12
3. Permitted Ancillary Uses ........................................................... 12
4. Parking ...................................................................................... 12
3.3 The Villas Residential ......................................................................... 12
1. Number of Units Detached Residential ..................................... 13
2. Development Standards Attached Residential .......................... 14
3.4 The Bungalows Hotel ........................................................................... 14
1. Number of Units Rooms ............................................................ 14
2. Permitted Ancillary Uses ........................................................... 14
3. Building Area ............................................................................. 14
4. Building Height .......................................................................... 15
5. Building Setbacks ...................................................................... 15
6. Parking ...................................................................................... 15
3.5 Signs .................................................................................................... 15
A. Sign Allowance ............................................................................... 15
B. Sign Standards ............................................................................... 16
4.0 Site Development Review .............................................................................. 17
4.1 Purpose ............................................................................................... 17
4.2 Application ........................................................................................... 17
4.3 Findings ............................................................................................... 17
4.4 Contents .............................................................................................. 18
4.5 Public Hearing – Required Notice ........................................................ 18
4.6 Expiration and Revocation Site Plan Review Approvals ...................... 19
3
4.7 Fees ..................................................................................................... 19
4.8 Minor Changes by the Community Development Director ................... 19
LIST OF EXHIBITS
Exhibit Name Exhibit Number
Vicinity Aerial Map ............................................................................................... A
Conceptual Master Site Plan ............................................................................... B
LIST OF TABLES
Table Name Page
The Villas Residential Development Standards ................................................... 13
4
1.0 INTRODUCTION AND PURPOSE
___________________________________
The Newport Beach Country Club Planned Community District (the PCD) is composed
of the Golf Club, Tennis and Pickleball Club, Bungalows hotel and Villas facilities
detached and attached residences, totaling approximately 133 140 acres. The PCD
has been developed in accordance with the Newport Beach General Plan and is
consistent with the Local Coastal Land Use Plan.
The purpose of this PCD is to provide for the classification and development of
coordinated, cohesive, comprehensive planning project with limited mixed uses,
including the private Golf Club, Tennis and Pickleball Club, 27 short-term rental units
41-room boutique hotel called the Bungalows with a spa/fitness area center and
ancillary uses, and 5 semi-custom single-unit residential dwellings units called the
Villas.
Whenever the regulations contained in the PCD Regulations conflict with the regulations
of the Newport Beach Municipal Code, the regulations contained in the PCD
Regulations shall take precedence. The Newport Beach Municipal Code shall regulate
all development within the PCD when such regulations are not provided within the PCD
Regulations.
5
2.0 GENERAL CONDITIONS AND REGULATIONS
___________________________________
1. Alcoholic Beverage Consumption
The consumption of alcoholic beverages within the PCD shall be in compliance with the
State of California Department of Alcoholic Beverage Control and the Newport Beach
Municipal Code. A use permit shall be required if the establishment operates past 11:00
p.m. any day of the week and a minor use permit shall be required if the establishment
operates until 11:00 p.m. any day of the week.
2. Amplified Music
All amplified music played after 10:00 p.m. within the PCD shall be confined within the
interior of a building unless a Special Events Permit is obtained.
3. Archaeological/Paleontological Resources
Development of the site is subject to the provisions of City Council Policies K-5 and K-6
regarding archaeological and paleontological resources.
4. Architectural Design
All development shall be designed with high quality architectural standards and shall be
compatible with the surrounding uses. The development should be well-designed with
coordinated, cohesive architecture and exhibiting the highest level of architectural and
landscape quality in keeping with the PCD’s prominent location in the Newport Center
Planning Area. Massing offsets, variation of roof lines, varied textures, openings,
recesses, and design accents on all building elevations shall be provided to enhance
the architectural style. Architectural treatments for all ancillary facilities (i.e. storage,
truck loading and unloading, and trash enclosures) shall be provided.
5. Building Codes
Construction shall comply with applicable provisions of the California Building Code and
the various other mechanical, electrical and plumbing codes related thereto as adopted
by the Newport Beach Municipal Code.
6. Exterior Storage Areas
There shall be no exterior storage areas permitted with the exception of the
greenskeeper/maintenance area which shall be enclosed by a minimum six-foot
plastered block wall.
6
7. Flood Protection
Development of the subject property will be undertaken in accordance with the flood
protection policies of the City.
8. Grading and Erosion Control
Grading and erosion control measures shall be carried out in accordance with the
provisions of the Newport Beach Excavation and Grading Code and shall be subject to
permits issued by the Community Development Department.
9. Gross Floor Area
Gross floor area shall be defined as the total area of a building including the
surrounding exterior walls.
10. Height and Grade
The height of any structure within the PCD shall not exceed fifty (50) feet, unless
otherwise specified. The height of a structure shall be the vertical distance between the
highest point of the structure and the grade directly below. In determining the height of a
sloped roof, the measurement shall be the vertical distance between the grade and the
midpoint of the roof plane, provided that no part of the roof shall be extend more than
five (5) feet above the permitted height in the height limitation zone, and any
amendments shall be subject to the review and approval of the Community
Development Director
11. Landscaping/Irrigation
Landscaping and irrigation shall be provided in all areas not devoted to structures,
parking lots, driveways, walkways, and tennis courts to enhance the appearance of the
development, reduce heat and glare, control soil erosion, conserve water, screen
adjacent land uses, and preserve the integrity of PCD. Landscaping and irrigation shall
consist of a combination of trees, shrubs, groundcover and hardscape improvements.
Landscaping shall be prepared in accordance with the Landscaping Standards and
Water-Efficient Landscaping Sections of the Newport Beach Municipal Code and
installed in accordance with the approved landscape plans prepared by a licensed
landscape architect.
12. Lighting – Outdoor
All new outdoor lighting shall be designed, shielded, aimed, located and maintained to
shield adjacent uses/properties and to not produce glare onto adjacent uses/properties.
Lighting plans shall be prepared in compliance with the Outdoor Lighting Section of the
7
Newport Beach Municipal Code and shall be prepared by a licensed electrical
engineer. All lighting and lighting fixtures that are provided shall be maintained in
accordance with the approved lighting plans.
13. Lighting – Parking & Walkways
All lighting and lighting fixtures that are provided shall be maintained in accordance with
the approved lighting plans. Light standards within parking lots shall be the minimum
height required to effectively illuminate the parking area and eliminate spillover of light
and glare onto adjoining uses/properties and roadways.
Parking lots and walkways accessing buildings shall be illuminated with a minimum of
0.5 foot-candle average on the driving or walking surface during the hours of operation
and one hour thereafter. Lighting plans shall be prepared in compliance with the
Outdoor Lighting Section of the Newport Beach Municipal Code and shall be prepared
by a licensed electrical engineer.
If the applicant wishes to deviate from this lighting standard, a lighting plan may be
prepared by the applicant and submitted to the Community Development Director for
review and approval.
14. Loading Areas for Non-Residential Uses
All loading and unloading of goods delivery shall be performed onsite. Loading
platforms and areas shall be screened from public view.
15. Parking Areas
Parking spaces, driveways, maneuvering aisles, turnaround areas, and landscaping
areas of the parking lots shall be kept free of dust, graffiti, and litter. All components of
the parking areas including striping, paving, wheel stops, walls, and light standards of
the parking lots shall be permanently maintained in good working condition. Access,
location, parking space and lot dimensions, and parking lot improvements shall be in
compliance with the Development Standards for Parking Areas Section of the Newport
Beach Municipal Code.
16. Property Owner Approval
Written property owner approval shall be required for the submittal of any site
development review application and/or prior to grading and/or building permit issuance.
17. Outdoor Paging
Outdoor paging shall be permitted at the Golf Club to call individuals to the tees and at
the Tennis and Pickleball Club to call points during tennis and pickleball tournaments.
8
18. Sewage Disposal
Sewage disposal service facilities for the PCD will be provided by Orange County
Sanitation District No. 5 and shall be subject to applicable regulations, permits and fees
as prescribed by the Sanitation District.
19. Screening of Mechanical Equipments
All new mechanical appurtenances (e.g., air conditioning, heating, ventilation ducts and
exhaust vents, swimming pool and spa pumps and filters, transformers, utility vaults and
emergency power generators) shall be screened from public view and adjacent land
uses. The enclosure design shall be approved by the Community Development
Department. All rooftop equipment (other than vents, wind turbines, etc.) shall be
architecturally treated or screened from off-site views in a manner compatible with the
building materials prior to final building permit clearance for each new or remodeled
building. The mechanical appurtenances shall be subject to sound rating in accordance
with the Exterior Noise Standards Section of the Newport Beach Municipal Code.
Rooftop screening and enclosures shall be subject to the applicable height limit.
20. Screening of the Villas Residential Units from Tennis and Pickleball Courts
Adequate buffering between the Villas residential units and tennis courts and pickleball
courts shall be provided and subject to the Site Development Review process. The
exterior perimeter of the tennis courts facing Granville Condominiums, Granville Drive,
and the Tennis and Pickleball Clubhouse parking lot shall be screened by a minimum
ten-foot-high chain link fence covered by a wind screen. Wind screen shall be
maintained in good condition at all time. Additionally, adequate sound barriers shall be
installed around the tennis and pickleball courts to the satisfaction of the Community
Development Director.
21. Screening of the Villas’ Pool/Spa Equipment
All pool and/or spa equipment shall be enclosed by a minimum five-foot high block wall
plastered or otherwise textured to match the building.
22. Special Events
Temporary special community events, such as such as PGA Senior Classic golf
tournaments, Team Tennis, Davis Cup Matches, pickleball tournaments and other
similar events, are permitted in the PCD, and are subject to the Special Events Chapter
of the Newport Beach Municipal Code. Temporary exterior storage associated with
approved special events may be permitted provided it is appropriately screened and
regulated with an approved Special Event Permit.
9
23. Temporary Structures and Uses
Temporary structures and uses, including modular buildings for construction-related
activities are permitted.
24. Trash Container Storage for Residential Dwellings
Trash container storage shall be out of view from public places, and may not be located
in the required parking areas. If trash container storage areas cannot be located out of
public view, they shall be screened from public view. Screening shall consist of fences,
walls, and landscaping to a height at least 6 inches above the tops of the containers.
25. Trash Enclosures for Non-Residential Uses
All trash enclosures for non-residential uses shall be provided and in accordance with
the Solid Waste and Recyclable Materials Storage of the Newport Beach Municipal
Code.
26. Tennis and Pickleball Club Site Phasing Plan
The phasing plan for the tennis club site which consists of the tTennis and Pickleball
cClub, villas residential units and bungalows hotel rooms shall be subject to a site
development review process.
27. Water Service
Water service to the PCD will be provided by the City of Newport Beach and will be
subject to applicable regulations, permits and fees as prescribed by the City.
10
3.0 LAND USE AND DEVELOPMENT REGULATIONS
________________________________________
3.1 Golf Club
Refer to Exhibit B - Conceptual Master Site Plan for the general location and
placement of the golf course and clubhouse.
A. Golf Course
An 18-hole championship golf course and related facilities (i.e. putting green,
driving range, snack bar, starter shack, restroom facilities, etc.).
B. Golf Clubhouse and Ancillary Uses
1. Building Area
The maximum allowable gross floor area for a golf clubhouse building
shall be 56,000 square feet, exclusive of any enclosed golf cart storage
areas ramp and washing area. The greens keeper/maintenance buildings,
snack bar, separate golf course restroom facilities, starter shack, and
similar ancillary buildings are exempt from this development limit.
2. Building Height
The maximum allowable building height for the Golf Clubhouse shall be 50
feet and shall be measured in accordance with the Height and Grade
definition of Section 2.0 General Conditions and Regulation of the PCD.
3. Permitted Ancillary Uses
The following ancillary uses are allowed:
• Golf shop
• Administrative Offices
• Dining, and event areas
• Kitchen & Bar areas
• Banquet Rooms
• Men and Women’s Card Rooms
• Health and fitness facility
• Restroom and Locker facilities
• Golf Club storage areas
• Employee lounge/lunch areas
• Meeting rooms
• Golf Cart Parking Storage and Washing Area
11
• Separate Snack Bar
• Separate Starter Shack
• Separate Golf Course Restrooms
• Hand Carwash Area
• Greenskeeper Maintenance Facility
• Temporary Construction Facilities
• Guard House
• Others (subject to an approval of the Community Development
Director)
4. Parking
Parking for the Golf Course and Golf Clubhouse shall be in accordance
with following parking ratios (source: from Table 2 of the Circulation and
Parking Evaluation by Kimley-Horn and Associates, Inc., September 2009
for Newport Beach Country Club – Clubhouse Improvement Project):
Golf Course: 8 spaces per hole
Golf Clubhouse:
Dining, assembly & meeting rooms: 1 per 3 seats or 1 per 35
square feet
Administrative Office: 4 per 1,000 square feet
Pro Shop: 4 per 1,000 square feet
Maintenance Facility: 2 per 1,000 square feet
Health and Fitness Facility: 4 per 1,000 square feet
The design of the parking lot and orientation of vehicular aisles and
parking spaces shall be subject to the review and approval of the City
Traffic Engineer and Community Development Director.
5. Fencing
Golf Course perimeter fencing shall be wrought-iron with a maximum
permitted height of six (6) feet.
3.2 Tennis and Pickleball Club
Refer to Exhibit B - Conceptual Master Site Plan for the general location and
placement of the tennis and pickleball courts and clubhouse.
A. The Tennis and Pickleball Courts
1. Number of courts
12
The maximum allowable tennis courts shall be seven four lighted tennis
courts and 14 pickleball courts (12 lighted courts and one lighted stadium
with two (2) pickleball courts). (six lighted championship courts and one
lighted stadium-center court).
B. Tennis and Pickleball Clubhouse and Ancillary Uses
1. Building Area
The maximum allowable gross floor area for the Tennis and Pickleball
Clubhouse shall be 3,725 square feet.
2. Building Height
The maximum allowable building height for the Tennis and Pickleball
Clubhouse shall be 30 feet and shall be measured in accordance with the
Height and Grade definition of Section 2.0 General Conditions and
Regulations of the PCD.
3. Permitted Ancillary Uses
The following ancillary uses are allowed:
• Tennis and Pickleball Shop
• Administrative Offices
• Concessions
• Restroom and Locker facilities
• Storage areas
• Spectator seating
• Others (subject to an approval of the Community Development
Director)
4. Parking
Parking for the Tennis and Pickleball Clubhouse and Courts shall be a
minimum of 28 72 parking spaces.
3.3. The Villas Residential
Refer to Exhibit B - Conceptual Master Site Plan for the general location and
placement of the villas dwelling units.
13
A. Detached Residential (The Villas)
1. Number of Units
The maximum allowable number of single-family residential units shall be
five (5) two (2).
2. Development Standards
The following development standards shall apply to the detached
residential units:
The Villas Residential Development Standards Table
Villa Dwelling
Unit Designation
Villa Single-Family
Dwelling A
Villa Single-Family
Dwelling B
TTM Lot #1 TTM Lot #2
Lot Size 5,000 square feet minimum
Lot Coverage
(Maximum) 70% 65%
Building Height
39 feet, measured in accordance with the Height
and Grade definition of Section 2.0 General
Conditions and Regulations
Building Side
Yard Setbacks 3 feet minimum
Building Front
and Rear Yard
Setbacks
5 feet minimum
Enclosed Parking
Space for Each
Unit
2 2
Open Guest
Parking Space for
Each Unit
One space - could be located on the private
driveway – No overhang to the private street/cul-
de-sac is allowed
14
B. Attached Residential
1. Number of Units
The maximum allowable number of attached residential units shall be
three (3).
2. Development Standards
The following development standards shall apply to the detached
residential units:
Setbacks: 5 feet minimum from any property line
Height: 46 feet (to be located atop of the 2-story hotel buildings)
Parking: 3 enclosed spaces and one guest space per dwelling unit
3.4. The Bungalows Hotel
Refer to Exhibit B - Conceptual Master Site Plan for the general location and
placement of the bungalows hotel rooms, concierge and guest center, and spa
facility.
A. Number of Units Rooms
The maximum allowable number of the Bungalows rooms shall be 27 41, to be
built in a clustered setting of single and two-story buildings.
B. Permitted Ancillary Uses
The following ancillary uses are allowed:
• Administrative Offices
• Concierge office and guest meeting facility
• Performance Therapy Center
• Spa and Fitness Center
• Swimming pool and Jacuzzi
• Spa facility that includes treatment rooms, fitness areas, and snack bar
serving drinks, snacks and light breakfast and lunch items
• Yoga Pavilion
C. Building Area
The maximum allowable gross floor area for the bungalows hotel rooms shall be
28,300 47,484 square feet with a 2,200 square foot concierge & guest center,
4,686 square feet of ancillary hotel uses, and a 7,500 square-foot spa facility.
15
D. Building Height
The maximum allowable building height for the bungalows hotel rooms shall be
31 feet, measured in accordance with the Height and Grade definition of Section
2.0 General Conditions and Regulations of the PCD.
E. Building Setbacks
The building setback requirement shall be a minimum of 5 feet from any property
line.
F. Parking
Parking for the bungalows hotel rooms shall be a minimum of 34 41 parking
spaces located in proximity to the use.
3.5 Signs
A. Sign Allowance
1. One (1) single or double-faced, ground-mounted entrance
identification sign shall be allowed at Newport Beach Tennis Club’s
main entrance (Country Club Drive and Irvine Terrace). Total
maximum signage area shall not exceed seventy-five (75) square
feet and shall not exceed five (5) feet in height.
2. One (1) single or double-faced, ground-mounted entrance
identification sign shall be allowed at or near the vicinity of the
Newport Beach Country Club’s secondary entrance (Granville).
Total maximum signage area shall not exceed seventy-five (75)
square feet and shall not exceed five (5) feet in height.
3. Building identification signs shall be allowed; one for each street
frontage. If freestanding, this sign type shall not exceed a maximum
height of five (5) feet in height. The maximum signage area shall
not exceed seventy (70) square feet.
4. Vehicular and pedestrian directional signs shall be allowed. This
sign type may occur as a single-faced or double-faced sign. The
sign shall be sized to allow for proper readability given the number
of lines of copy, speed of traffic, setback off the road and viewing
distance. This sign type shall not exceed a maximum of six (6) feet
in height.
5. One (1) single or double faced, ground-mounted identification sign
shall be allowed at the entrance road to the Bungalows hotel. Total
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maximum signage area shall not exceed seventy-five (75) square
feet and shall not exceed five (5) feet in height and fifteen (15) feet
in length.
B. Sign Standards
1. The design and materials of all permanent signs in the Newport
Beach Country Club Planned Community District shall be in
accordance with Sign Section 3.5, unless otherwise approved by
the Community Development Director.
2. All permanent signs shall be subject to a sign permit issued by the
Community Development Department.
3. All signs shall be subject to the review of the City Traffic Engineer
to ensure adequate sight distance in accordance with the
provisions of the Newport Beach Municipal Code.
4. Sign illumination is permitted for all sign types. No sign shall be
constructed or installed to rotate, gyrate, blink or move, or create
the illusion of motion, in any fashion.
5. All permanent signs together with the entirety of their supports,
braces, guys, anchors, attachments and décor shall be properly
maintained, legible, functional and safe with regards to appearance,
structural integrity and electrical service.
6. Temporary signs that are visible from any public right-of-way shall
be allowed up to a maximum of sixty (60) days and subject to a
temporary sign permit issued by the Community Development
Department.
7. If the applicant wishes to deviate from the sign standards identified
herein, a comprehensive sign program may be prepared or a
modification permit application may be submitted for review and
consideration by the Zoning Administrator in accordance with the
applicable provisions of the Newport Beach Municipal Code.
17
4.0 SITE DEVELOPMENT REVIEW
____________________________
4.1 Purpose
The purpose of the Site Development Review process is to ensure new
development proposals within the Newport Beach Country Club Planned
Community Development are consistent with the goals and policies of the
General Plan, provisions of this Planned Community Development Plan, the
Development Agreement and the findings set forth below in sub-section 4.3.
4.2 Application
An approval of Site Development Review application by the Planning
Commission shall be required for the construction of any new structure prior to
the issuance of a grading or building permit or issuance of an approval in concept
for Coastal Commission. Signs, tenant improvements to any existing buildings,
kiosks, and temporary structures are exempt from the site development review
process and subject to the applicable City’s permits. The decision of Planning
Commission is the final, unless appealed in accordance with the Newport Beach
Municipal Code.
4.3. Findings
In addition to the general purposes set forth in sub-section 4.1 and in order to carry
out the purposes of this chapter as established by said section, the Site
Development Review procedures established by this Section shall be applied
according to and in compliance with the following findings:
A. The development shall be in compliance with all other provisions of the
Planned Community District Plan;
B. The development shall be compatible with the character of the
neighboring uses and surrounding sites and shall not be detrimental to the
orderly and harmonious development of the surroundings and of the City;
C. The development shall be sited and designed to maximize the aesthetic
quality of the project as viewed from surrounding roadways and
properties, with special consideration given to the mass and bulk of
buildings and the streetscape on Coast Highway; and
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D. Site plan and layout of buildings, parking areas, pedestrian and vehicular
access ways, landscaping and other site features shall give proper
consideration to functional aspects of site development.
4.4. Contents
The Site Development Review application shall include all of the information and
materials specified by the Community Development Director and any additional
information review by the Planning Commission in order to conduct a thorough
review of the project in question. The following plans/exhibits may include, but
not limited to the following:
1. An aerial map showing the subject property, adjacent properties and
identifying their uses.
2. Comprehensive elevations and floor plans for new structures with
coordinated and complimentary architecture, design, materials and colors.
3. A parking and circulation plan showing golf cart and pedestrian paths in
addition to streets and fire lanes.
4. A comprehensive, cohesive and coordinated preliminary landscape plan.
5. A comprehensive, cohesive and coordinated lighting plan showing type,
location and color of all exterior lighting fixtures.
6. Comprehensive text and graphics describing the design philosophy for the
architecture, landscape architecture, material and textures, color palette,
lighting, and signage.
7. Text describing drainage and water quality mitigation measures.
8. A statement that the proposed new structure is consistent with the goals,
policies, and actions of the General Plan and Planned Community
Development Plan.
4.5 Public Hearing –Required Notice
A public hearing shall be held on all site development review applications. Notice
of such hearing shall be mailed not less than ten (10) days before the hearing
date, postage prepaid, using addresses from the last equalized assessment roll
or, alternatively, from such other records as contain more recent addresses, to
owners of property within a radius of three hundred (300) feet of the exterior
boundaries of the subject property. It shall be the responsibility of the applicant to
obtain and provide to the City the names and addresses of owners as required
by this Section. In addition to the mailed notice, such hearing shall be posted in
19
not less than two (2) conspicuous places on or close to the property at least ten
(10) days prior to the hearing.
4.6 Expiration and Revocation Site Development Review Approvals
1. Expiration. Any site development review approved in accordance with the
terms of this planned community development plan shall expire within
twenty-four (24) months from the effective date of final approval as
specified in the Time Limits and Extensions Section of the Newport Beach
Municipal Code, unless at the time of approval the Planning Commission
has specified a different period of time or an extension is otherwise
granted.
2. Violation of Terms. Any site development review approved in accordance
with the terms of this planned community development plan may be
revoked if any of the conditions or terms of such site development review
are violated or if any law or ordinance is violated in connection therewith.
3. Public Hearing. The Planning Commission shall hold a public hearing on
any proposed revocation after giving written notice to the permittee at
least ten (10) days prior to the hearing, and shall submit its
recommendations to the City Council. The City Council shall act thereon
within sixty (60) days after receipt of the recommendation of the Planning
Commission.
4.7. Fees
The applicant shall pay a fee as established by Resolution of the Newport Beach
City Council to the City with each application for Site Development Review under
this planned community development plan.
4.8 Minor Changes by the Director
1. The following minor changes to an approved site plan may be approved
by the Director in compliance with Section 20.54.070 (Changes to an
approved project) of the Newport Beach Municipal Code:
a) Minor relocation of any proposed structure.
b) Reduction in the square footage of any structure and a
commensurate reduction in required parking, if applicable.
c) Reconfiguration of the golf clubhouse parking lot, including drive
aisles and/or parking spaces, subject to review and approval of the
City Traffic Engineer.
d) Reconfiguration of parking lot landscaping.
e) Modification of the approved architectural style.
f) Any other minor change to the site plan provided it does not
20
increase any structure area, height, number of units, number of
hotel rooms, and/or change of use.
2. Any proposed changes that are not deemed minor shall be subject to
review and approval by the Planning Commission.
21
Exhibit A
22
Exhibit B
Planning Commission Resolution No. PC2023-014
Page 21 of 21
EXHIBIT “E”
DEVELOPMENT AGREEMENT
A10-00773 03.01.23
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92663-3884
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
GOLF REALTY FUND
CONCERNING PROPERTIES REFERENCED AS “TENNIS AND PICKLEBALL
CLUB”
WITHIN THE
NEWPORT BEACH COUNTRY CLUB PLANNED COMMUNITY DISTRICT
A10-00773 v4 01.06.11 FINAL -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 __________, 2023 (the “Agreement Date”), and is being entered into by and
between the City of Newport Beach (“City”), and Golf Realty Fund LP, a California limited
partnership “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 managing owner of and owns a fee interest in title to that
certain real property located in the City of Newport Beach, County of Orange, State of California
commonly referred to as 1602 East Coast Highway and more particularly described in the legal
description attached as Exhibit “A” and depicted on the site map attached hereto as Exhibit “B” (
“Property”). The Property consists of approximately seven (7) acres and is a part of the Newport
Beach Country Club Planned Community District shown on the City’s Zoning Map. The Property
comprises the area shown on Exhibit B as The Residential Sub-Area, The Tennis and Pickleball
Club Sub-Area, and The Hotel Sub-Area.
B. In order to encourage investment in, and commitment to, comprehensive planning
and public facilities financing, strengthen the public planning process and encourage private
implementation of the local general plan, provide certainty in the approval of projects in order to
avoid waste of time and resources, and reduce the economic costs of development by providing
assurance to property owners that they may proceed with projects consistent with existing land
use policies, rules, and regulations, the California Legislature adopted California Government
Code sections 65864-65869.5 (the “Development Agreement Statute”) authorizing cities and
counties to enter into development agreements with persons or entities having a legal or equitable
interest in real property located within their jurisdiction.
C. On March 13, 2007, the City Council adopted Ordinance No. 2007-6, entitled
“Ordinance Amending Chapter 15.45 of City of Newport Beach Municipal Code Regarding
Development Agreements” (the “Development Agreement Ordinance”). This Agreement is
consistent with the Development Agreement Ordinance.
D. The Parties wish to enter into Agreement to include four (4) tennis courts, fourteen
(14) pickleball courts, including a stadium (approximately one hundred four feet (104’) by one
hundred forty-eight feet (148’) with two pickleball courts, forty-one (41) hotel rooms, the gross
floor area of ancillary hotel uses is fourteen thousand three hundred and eighty-six (14,386) square
feet, and construct three (3) attached condominium units and two (2) single-family residences in
lieu of five (5) single-family residences.
E. As detailed in Section 3 of this Agreement, Property Owner has agreed to provide
the following significant public benefits as consideration for this Agreement: Visitor-Serving Uses
within the Coastal Zone, and other economic contributions including the payment of a Public
Benefit Fee.
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
“MU-H3/PR” (Mixed Use Horizontal /(Parks and Recreation) (Anomaly 46), the Coastal Land
Use Plan’s designation as “MU-H/PR (Mixed Use Horizontal / Parks & Recreation”, the Newport
Beach Country Club Planned Community District that was adopted in 1997 by Ordinance No. 97-
10 in order to establish appropriate zoning to regulate land use and development of the Property
consistent with the General Plan, and the Newport Beach Country Club Planned Community
Development Plan No PC2005-002 approved for the Property on March 27, 2012 by Ordinance
No. 2012-2.
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 and has been approved consistent with
the Final Environmental Impact Report for the City of Newport Beach General Plan 2006 Update
(State Clearinghouse No. 2006011119), the Mitigated Negative Declaration No. ND2010-008 and
for the Newport Beach Country Club Planned Community District (PA2021-260) approved by the
City Council on ____________ and the Addendum to Mitigated Negative Declaration No.
ND2010-008, both of which analyze the environmental effects of the Project on the Property; 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 March 23, 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 INSERT DATE, 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 INSERT DATE,
consistent with applicable provisions of the Development Agreement Statute and Development
Agreement Ordinance, the City Council adopted its Ordinance No. 2023-___ (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:
1. 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. 2023-__ approving and
adopting this Agreement.
3
“Agreement” shall mean this Development Agreement, as the same may be amended from
time to time.
“Agreement Date” shall mean _________________, which date is the date the City
Council adopted the Adopting Ordinance.
“CEQA” 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 for all urban consumers (all items) for the smallest geographic
area that includes the City or, if such index is discontinued, such other similar index as may be
publicly available that is selected by City in its reasonable discretion.
“Cure Period” shall have the meaning ascribed in Section 8.1 of this Agreement.
“Default” shall have the meaning ascribed to that term in Section 8.1 of this Agreement.
“Develop” or “Development” shall mean to improve or the improvement of the Property
for the purpose of completing the structures, improvements, and facilities comprising the Project,
including but not limited to: grading; the construction of infrastructure and public facilities related
to the Project, whether located within or outside the Property; the construction of all of the private
improvements and facilities comprising the Project; the preservation or restoration, as required of
natural and man-made or altered open space areas; and the installation of landscaping. The terms
“Develop” and “Development,” as used herein, do not include the maintenance, repair,
reconstruction, replacement, or redevelopment of any structure, improvement, or facility after the
initial construction and completion thereof.
“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
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 the amendment to Newport Beach Country Club Planned
Community Development Plan (PC-47) adopted pursuant to Ordinance No. 2012-2 and as
amended by Ordinance No. 2023-___; General Plan Amendment adopted pursuant to Resolution
No. 2023-___; amendment to Coastal Development Permit No. CD2017-039 adopted pursuant to
Resolution No. 2023-___; and Local Coastal Program Implementation Plan Amendment (also
referred to herein as Title 21 of the Newport Beach Municipal Code) adopted pursuant to Resolution
No. 2023-___ but subject to California Coastal Commission final review and approval.
“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 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 Property Owner in writing: the General Plan, the Coastal Land Use Plan, the
Development Plan, the Local Coastal Program Implementation Plan (Title 21); 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).
Title 20 of the Municipal Code (planning and zoning) and Title 21 of the Municipal Code (local
coastal program implementation plan), 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; (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 involuntary
dismissal), or binding written settlement agreement; (iv) the date of final approval of Amendment
to the Local Coastal Program Implementation Plan for the Project; or (v) the date of or if a lawsuit
5
is timely filed challenging the validity or legality of the approval of Amendment to the Local
Coastal Program Implementation Plan for the Project, the date on which said challenge is finally
resolved in favor of the validity or legality of Amendment to the Local Coastal Program
Implementation Plan for the Project, whether such finality is achieved by a final non-appealable
judgment, voluntary or involuntary dismissal (and the passage of any time required to appeal an
involuntary dismissal), or binding written settlement agreement. Promptly after the Effective Date
occurs, the Parties agree to cooperate in causing an appropriate instrument to be executed and
recorded against the Property memorializing the Effective Date.
“Environmental Laws” means all federal, state, regional, county, municipal, and local laws,
statutes, ordinances, rules, and regulations which are in effect as of the Agreement Date, and all
federal, state, regional, county, municipal, and local laws, statutes, rules, ordinances, rules, and
regulations which may hereafter be enacted and which apply to the Property or any part thereof,
pertaining to the use, generation, storage, disposal, release, treatment, or removal of any Hazardous
Substances, including without limitation the following: the Comprehensive Environmental
Response Compensation and Liability Act of 1980, 42 U.S.C. Sections 9601, et seq., as amended
(“CERCLA”); the Solid Waste Disposal Act, as amended by the Resource Conservation and
Recovery Act of 1976, 42 U.S.C. Sections 6901, et seq., 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 seq., 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 seq., as amended; the Toxic Substances Control Act, 15 U.S.C.
Sections 2601 et seq., 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 seq.
“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 Property Owner’s rights set forth in
this Agreement, unless such amendment is expressly authorized by this Agreement, is authorized
by Sections 8 or 9, or is specifically agreed to by 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.
6
“Mortgagee” shall mean the holder of a beneficial interest under a Mortgage or any
successor or assignee of the Mortgagee.
“Notice of Default” shall have the meaning ascribed in Section 8.1 of this Agreement.
“Party” or “Parties” shall mean either City or Property Owner or both, as determined by
the context.
“Project” shall mean all on-site and off-site improvements that Property Owner is
authorized and/or may be required to construct with respect to each parcel of 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” as The Tennis
and Pickleball Club, The Residential, and The Hotel Sub-Areas shown on “Exhibit B”.
“Property Owner” shall mean Golf Realty Fund, a California limited partnership and any
successor or assignee, including lessees, to all or any portion of the right, title, and interest of Golf
Realty Fund 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 Consistency, Zoning Implementation.
This Agreement and the Development Regulations applicable to the Property are consistent
with the General Plan and the Newport Beach Country Club Planned Community Development
Plan (PC-47) as amended by the approvals in the Development Plan adopted concurrently herewith
(including but not limited to the amendment to the Newport Beach Country Club Planned
Community Development Plan (PC-47). The amendment to the Local Coastal Program
Implementation Plan is subject to final review and approval by the California Coastal Commission.
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.
7
2.3 Property Owner 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) 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; (ii) 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; (iii) 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; (iv) 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; (v) 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, the LCPA for the Project 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 (10th)
anniversary of the Effective Date; (ii) such earlier date that this Agreement may be terminated in
accordance with Articles 5, 7, and/or Section 8.3 of this Agreement and/or Sections 65865.1 and/or
65868 of the Development Agreement Statute; or (iii) completion of the Project in accordance
with the terms of this Agreement, including Property Owner’s complete satisfaction, performance,
and payment, as applicable, of all Development Exactions, the issuance of all required final
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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.
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 five hundred two thousand two hundred fifty dollars
($502,250.00) broken down as follows: (i) ninety-three thousand dollars and 00/100 ($93,000.00
per residential dwelling unit) for a sum of four hundred sixty-five thousand dollars and 00/100
($465,000.00) for the residential units; and (ii) ten dollars and 00/100 ($10.00) per square foot of
the three thousand seven hundred twenty-five (3,725) square foot Tennis and Pickleball Clubhouse
for a sum of thirty-seven thousand two hundred fifty dollars and 00/100 ($37,250.00), with the
unpaid balance of said Public Benefit Fee increased on the first January 1 following the Effective
Date of this Agreement by the percentage increase in the CPI Index between the Effective Date
and said January 1st date (the first “Adjustment Date”) and thereafter with the unpaid balance of
said Public Benefit Fee increased on each subsequent January 1 during the Term of this Agreement
(each, an “Adjustment Date”) by the percentage increase in the CPI Index in the year prior to the
applicable Adjustment Date. The amount of the percentage increase in the CPI Index on the
applicable Adjustment Dates shall in each instance be calculated based on the then most recently
available CPI Index figures such that, for example, if the 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. Property Owner shall pay the Public Benefit Fee at the following time(s): (i) As
to the residential dwelling units, prior to the issuance of the first building permit for any residential
unit; and (ii) as to the Tennis and Pickleball Clubhouse, prior to the issuance of the first building
permit. Notwithstanding any other provision set forth in this Agreement to the contrary, during
the Term of this Agreement, City shall not increase the Public Benefit Fee except pursuant to the
CPI Index as stated in this Section 3.1. The Public Fee Benefit Fee shall be calculated based on
the total gross square footage of the Tennis and Pickleball Clubhouse. Property Owner shall not
be entitled to any credit or offset to the Public Benefit Fee for any existing buildings or structures.
Property Owner acknowledges by its approval and execution of this Agreement that it is
voluntarily agreeing to pay the Public Benefit Fee, that its obligation to pay the Public Benefit Fee
is an essential term of this Agreement and is not severable from City’s obligations and Property
Owner’s vesting 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
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protest or challenge the payment of such fee on any ground whatsoever, including without
limitation pursuant to the Fifth and Fourteenth Amendments to the United States Constitution,
California Constitution Article I Section 19, the Mitigation Fee Act (California Government Code
Section 66000 et 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
Benefit Fee 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 Development Plan.
3.2 Other Public Benefits.
The development of the Project will include the addition of Visitor-Serving Uses consistent
with the City’s Coastal Land Use Plan and will provide a unique amenity for those visitors whose
interests include tennis and pickleball recreational uses. It is anticipated that the Property will
continue to host numerous events of significant social and economic benefit to the City, its citizens,
businesses and charitable institutions.
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, 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.
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
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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.
4.3 Reservations of Authority.
Notwithstanding any other provision set forth in this Agreement to the contrary, the laws,
rules, regulations, and official policies set forth in this Section 4.3 shall apply to and govern the
Development of the Project on and with respect to the Property.
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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.
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
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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 this Agreement, 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
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
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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 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.
7.4 Annual Review a Non-Exclusive Means for Determining and Requiring Cure of Property
Owner’s Default.
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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
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,
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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 falls to
carry out its obligations under this Agreement.
8.7 Monetary Damages.
The Parties agree that monetary damages shall not be an available remedy for either Party
for a Default hereunder by the other Party; provided, however, that (i) nothing in this Section 8.7
is intended or shall be interpreted to limit or restrict City’s right to recover the Public Benefit Fees
due from 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. Developer expressly agrees that the City, any City
agencies and their respective elected and appointed councils, boards, commissions, officers,
agents, employees, volunteers and representatives (collectively, for purposes of this Section 8.7,
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“City”) shall not be liable for any monetary damage for a Default by the City or any claims against
City arising out of this Agreement. Developer hereby expressly waives any such monetary
damages against the City. The sole and exclusive judicial remedy for Developer in the event of a
Default by the City shall be an action in mandamus, specific performance, or other injunctive or
declaratory relief.
8.8 Additional City Remedy for 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 Obligations of Property 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
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,
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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. 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
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 foregoing indemnity obligations shall not apply to any Hazardous Substance placed or stored
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on a separate legal lot within the Property after the Lot Termination Date for said lot, as provided
in Section 2.4 of this Agreement. 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 seq.) 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 Developer under this Agreement with respect to the portion
of, or interest in, the Property sold, transferred, and assigned to such Permitted Transferee;
provided, however, that in the event of a Transfer of less than all of the Property, or interest in the
Property, no such Permitted Transferee shall have the right to enter into an amendment of this
Agreement that jeopardizes or impairs the rights or increases the obligations of the Developer with
respect to the balance of the Property, without Developer’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
Owner has provided City with the notice and the fully executed written and recordable assignment
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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.
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
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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.
21
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
TO PROPERTY OWNER: Golf Realty Fund
One Upper Newport Plaza
Newport Beach, California 92660
Attn: Robert O’Hill
With a copy to:
Either Party may change the address stated in this Section 13.1 by delivering notice to the other
Party in the manner provided in this Section 13.1, and thereafter notices to such Party shall be
addressed and submitted to the new address. Notices delivered in accordance with this Agreement
shall be deemed to be delivered upon the earlier of: (i) the date received or (iii) three business days
after deposit in the mail as provided above.
14.3 Project 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.
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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.
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.
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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,
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 Assigns; Constructive Notice and Acceptance.
The burdens of this Agreement shall be binding upon, and the benefits of this Agreement
shall inure to, all successors in interest to the Parties to this Agreement. 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
24
or entity acquires the interest refers to or acknowledges this Agreement and regardless of whether
such person or entity has expressly entered into an assignment and assumption agreement as
provided for in Section 11.
14.14 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 Applicable 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.
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
DESIGNATION DESCRIPTION
A Legal Description of Property
B 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.
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SIGNATURE PAGE TO
DEVELOPMENT AGREEMENT
“PROPERTY OWNER”
GOLF REALTY FUND, a California
limited partnership
By: O Hill Capital, a California limited
partnership
Its General Partner
By:
Robert O Hill, General Partner
“CITY”
CITY OF NEWPORT BEACH
By:
Its: Mayor
ATTEST:
Leilani I. Brown
City Clerk
APPROVED AS TO FORM:
Aaron C. Harp, City Attorney
-26-
STATE OF CALIFORNIA
COUNTY OF ORANGE
On _____________________, before me, the undersigned, a Notary Public in and for said State,
personally appeared _____________________ and _____________________, personally known
to me 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 signature on the
instrument the persons, or the entity upon behalf of which the persons acted, executed the
instrument.
Witness my hand and official seal.
Notary Public in and for
said County and State
STATE OF CALIFORNIA
COUNTY OF ORANGE
On _____________________, before me, the undersigned, a Notary Public in and for said State,
personally appeared _____________________ and _____________________, personally known
to me 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 signature on the
instrument the persons, or the entity upon behalf of which the persons acted, executed the
instrument.
Witness my hand and official seal.
Notary Public in and for
said County and State
A10-00773 v4 01.06.11 FINAL 1
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
The Property : PARCELS A, B, C AND D OF PARCEL MAP 2016-151, LOCATED IN THE
CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA,
RECORDED IN BOOK 402 PAGES 24 THROUGH 32 INCLUSIVE OF PARCEL MAPS,
RECORDS OF SAID COUNTY.
A10-00773 v4 01.06.11 FINAL
i
EXHIBIT B
DEPICTION OF PROPERTY
Tennis and Pickleball Club
Residential
Hotel