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HomeMy WebLinkAbout2010-18 - Approving Development Agreement No. 2010-001 (Zoning Implementation and Public Benefit Agreement Between the City of Newport Beach and Morningside Recovery, LLC) (PA2010-069)ORDINANCE NO. 2010 -18 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH CITY COUNCIL APPROVING DEVELOPMENT AGREEMENT NO. 2010 -001 (ZONING IMPLEMENTATION AND PUBLIC BENEFIT AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND MORNINGSIDE RECOVERY, LLC) (PA2010 -069) WHEREAS, when adopting Ordinance No. 2008 -005 on January 22, 2008, the City Council of the City of Newport Beach found that the City has a disproportionately high number of licensed and unlicensed residential group uses serving the disabled recovering from drug or alcohol use; and WHEREAS, when adopting Ordinance No. 2008 -005, evidence was presented of increasing numbers of residential care facilities that do not house permanent residents and operate in a manner similar to boarding house or institutional uses rather than as single housekeeping units; and WHEREAS, when adopting Ordinance No. 2008 -005, evidence was presented that certain areas of the City, including West Newport and the Balboa Peninsula have significantly higher numbers of group residential uses than other parts of the City and other parts of the state, and that secondary impacts from group residential uses change the residential character of a neighborhood and are not beneficial to persons in recovery as they attempt to re- integrate their new sober lifestyle into typical society; and WHEREAS, the City has prohibited all other group residential uses that are not single housekeeping units from establishing in residential zones since 1997; and WHEREAS, the City recognizes and agrees that the federal Fair Housing Act and other state and federal laws provide that individuals recovering from drug and alcohol addiction are deemed disabled and are entitled to housing opportunities. As such, Ordinance 2008 -005 provides for applicants representing the disabled or the disabled themselves to apply for reasonable accommodation from all or portions of the Ordinance to ensure that housing opportunities for the disabled continue to be provided in all residential areas of the Newport Beach community; and WHEREAS, the City desires to maintain zoning provisions benefiting disabled persons by allowing disabled persons to live in residential districts, while forbidding all other group residential uses in residential districts, but desires to ensure that the uses are consistent with the residential character of neighborhoods and do not recreate an institutional environment that would defeat the purpose of community -based care; and WHEREAS, to achieve these goals, on April 27, 2010, the City of Newport Beach entered into a Settlement and Release Agreement with Morningside Recovery, LLC, which would allow the operation of its residential care facilities with limitations on the total number of clients and controls on the operation and location of these facilities; and WHEREAS, Development Agreement No. DA2010 -001 consists of a Zoning Implementation and Public Benefit Agreement between the City of Newport Beach and Morningside Recovery, LLC; and WHEREAS, on June 3, 2010, the Planning Commission held a public hearing in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time, place and purpose of the meeting was given in accordance with the Newport Beach Municipal Code. Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this meeting. Pursuant to Section 15.45.050 of the Municipal Code, this meets the public notice requirements provided in Sections 65090 and 65091 of the California Government Code: and WHEREAS, the Planning Commission found that the Development Agreement is consistent with Chapter 15.45 of the Municipal Code and California Government Code Section 65865.2 and is consistent with the General Plan; and WHEREAS, consideration and adoption of the Development Agreement has been determined to be categorically exempt under the requirements of the California Environmental Quality Act (CEQA) under Class 1 (Existing Facilities). This class of projects has been determined not to have a significant effect on the environment and is exempt from the provisions of CEQA. This activity is also covered by the general rule that CEQA applies only to projects that have the potential for causing a significant effect on the environment (Section 15061(b)(3) of the CEQA Guidelines). It can be seen with certainty that there is no possibility that this activity will have a significant effect on the environment and it is not subject to CEQA; and WHEREAS, The Development Agreement specifies the permitted uses of the property the density or intensity of use, and the duration of the agreement; and WHEREAS, the occupancy level limits, location requirements, and operational conditions contained in the Development Agreement will protect the public health, safety and welfare; and WHEREAS, the Development Agreement is consistent with the General Plan, as the operational conditions will minimize impacts to residential neighborhoods and the occupancy level limits and dispersal requirements will assist in reducing the over - concentration of recovery homes and sober living homes in residential areas. NOW THEREFORE, the City Council of the City of Newport Beach, California, hereby ordains as follows: SECTION 1: The City Council here by adopts the recitals above as their findings in support of the passage of this ordinance. SECTION 2: Development Agreement No. 2010 -001 shall be adopted as provided in Exhibit "A ". 2 SECTION 3: The Mayor shall sign and the City Clerk shall attest to the passage of this ordinance. The City Clerk shall cause the same to be published once in the official newspaper of the City, and it shall be effective on the 91St day after its adoption. SECTION 4: This ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach, held on the 14th day of September, 2010, and adopted on the 28th day of September, 2010, by the following vote, to wit: AYES, COUNCILMEMBERS Selich, Hosansky, Henn, Webb, Gardner, Daigle, Mayor Curry NOES, COUNCILMEMBERS None ABSENT COUNCILMEMBERS None MAYOR ATTEST- CITY CLERK APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY avid R. Hunt, City Attbmey For the City of Newport Beach 3 (EXHIBIT A) ZONING IMPLEMENTATION AND PUBLIC BENEFIT AGREEMENT (Pursuant to California Government Code §§ 65864- 65869.5) This Zoning Implementation and Public Benefit Agreement (the "ZONING AGREEMENT ") is entered into on , 2010, by and between the CITY OF NEWPORT BEACH, a charter city ( "CITY ") on the one hand, and MORNINGSIDE RECOVERY, LLC, ( "MORNINGSIDE ") on the other. The CITY and MORNINGSIDE are collectively referred to as the "PARTIES." I. Recitals A. The City Council hereby finds this ZONING AGREEMENT is consistent with the provisions of California Government Code §65867, the City of Newport Beach Municipal Code Chapter 15.45, and the City's General Plan. B. On June 3, 2010, the City's Planning Commission held a public hearing on this ZONING AGREEMENT, made findings and determinations with respect to this ZONING AGREEMENT, and recommended to the City Council that the City Council approve this ZONING AGREEMENT. C. On September 14, 2010, the City Council also held a public hearing on this ZONING AGREEMENT and considered the Planning Commission's recommendations and testimony and information submitted by City staff, MORNINGSIDE, and members of the public. On September 28, 2010, pursuant to applicable state law (California Government Code §§ 65864- 65869.5) and local law (City of Newport Beach Municipal Code Chapter 15.45), the City Council passed its Ordinance No. finding this ZONING AGREEMENT to be consistent with the City of Newport Beach General Plan and approving this ZONING AGREEMENT. II. Definitions The following terms when used in this ZONING AGREEMENT shall have the meanings set forth below: A. "BLOCK" shall mean an area that is bounded on all sides by streets. In the Peninsula Zone, a BLOCK length is 617 feet, which is the calculable median block length within the City of Newport Beach's Nonstandard Subdivision Areas. B. "CITY" shall mean the City of Newport Beach and its City Council. [L09 -0011] — Zoning Agreement - Morningside — 10. 09.02 Final C. "CLIENT" (or "CLIENTS ") shall mean any persons residing at any MORNINGSIDE FACILITY for the purpose of recovering from drug and /or alcohol abuse. D. "CLIENT BEDS" shall mean physical accommodations in each Facility where Clients sleep or otherwise overnight. E. "CONTROL" (including the terms "controlling," "controlled by," and "under common control with, ") shall mean the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract, or otherwise. F. "FACILITY" (or "FACILITIES ") is a residential unit used or occupied by persons in recovery from alcoholism and /or drug abuse. Facilities may be "licensed facilities" or unlicensed "sober living homes." As used in this AGREEMENT, all facilities constitute "residential care facility" uses within the context of the City's zoning ordinance. G. "GENERAL PLAN" shall mean the 2006 General Plan adopted by the City Council on July 25, 2006, by Resolution No. 2006 -76 as periodically amended. The Land Use Plan of the Land Use Element of the General Plan was approved by Newport Beach voters in a general election on November 7, 2006. H. "LICENSED FACILITIES" shall mean alcoholism and drug abuse recovery facilities licensed by the California Department of Alcohol and Drug Programs ( "ADP "). I. "PARTY" or "PARTIES" shall mean either the CITY or MORNINGSIDE or any of MORNINGSIDE's affiliates or both, as determined by the context. J. "PROPERTY" or "PROPERTIES" shall mean MORNINGSIDE's facilities at 4823 A River Avenue and 4823 B River Avenue; 112 B 39th Street; 5015 A River Avenue and 5015 B River Avenue until September 30, 2010; 100 Via Antibes, 102 Via Antibes and 208 Via Lido Soud beginning September 1, 2010; and 29 Ima Loa Court in Newport Beach. Additionally, this ZONING AGREEMENT shall apply to parcels not yet identified upon which MORNINGSIDE may operate facilities within CITY in the future. K. "SOBER LIVING HOMES" shall mean alcoholism and /or drug abuse recovery facilities that are not licensed by the ADP. L. "7- and - OVER" shall mean any FACILITY licensed by the ADP to house more than 7 persons in recovery for drug and /or alcohol abuse. Morningside Recovery, LLC Zoning Agreement Exhibit A to Settlement Agreement (1-09- 0011)— Zoning Agreement - Morningside — 10.09.02 Final 2 III. Agreement A. Terms of Agreement. This ZONING AGREEMENT allows MORNINGSIDE a vested right to the following: 1.) MORNINGSIDE may operate FACILITIES with up to thirty -six (36) CLIENTS and thirty -six (36) CLIENT BEDS in Newport Beach pursuant to certain operational guidelines described more particularly in Exhibit 1 attached hereto. Except as described in Section A (3), below, MORNINGSIDE may not exceed 36 CLIENTS and 36 CLIENT BEDS in Newport Beach. 2.) MORNINGSIDE may house up to 30 of its 36 total CLIENTS and have up to 30 of its CLIENT BEDS in the Newport Beach "Peninsula Zone." The Peninsula Zone is more particularly defined in Exhibit 2 attached hereto; 3.) MORNINGSIDE can exceed its 36 CLIENT and 36 CLIENT BED maximum only by acquiring 7- and -OVER FACILITIES that have obtained use permits under Chapter 20.91A of the Newport Beach Municipal Code. 4.) MORNINGSIDE shall conduct its operations in Newport Beach in conformance with the Operational Conditions attached hereto as Exhibit 1. 5.) MORNINGSIDE will comply with the following dispersal and distancing requirements for its FACILITIES in Newport Beach: a. Only one (1) treatment home or sober living facility (licensed or unlicensed by ADP) is allowed per BLOCK, and no FACILITIES facing each other; b. No FACILITIES (licensed or unlicensed by ADP) within 1,000 feet of public elementary schools or large, state - licensed day -care facilities. B. Significant Public Benefits. The significant public benefits that this ZONING AGREEMENT provides include, but are not limited to, the following: 1.) Settlement and avoidance of litigation costs, including the continued expenditure of attorneys' fees; Morningside Recovery, LLC Zoning Agreement Exhibit A to Settlement Agreement [L09- 0011]— Zoning Agreement - Morningside — 10.09.02 Final 3 2.) Preservation of the regulatory ordinance that was the subject matter of this lawsuit; 3.) Avoidance of potential federal administrative proceedings; 4.) A reduction and limitation on the size of a residential care operation in Newport Beach, including a limitation on LICENSED FACILITIES; 5.) Dispersal of LICENSED FACILITIES and SOBER LIVING HOMES to reduce the concentration thereof in the City's residential districts; 6.) The placement of operational controls on said FACILITIES to reduce the perceived negative impacts on the City's residential neighborhoods; C. General Plan Consistency and Zoning Implementation, This ZONING AGREEMENT and the regulations applied herein to MORNINGSIDE will cause the City of Newport Beach's zoning and other land use regulations to remain consistent with the GENERAL PLAN. D. Warranties and Representations. Both PARTIES represent they have legal authority to enter into this ZONING AGREEMENT and the remainder of the agreements and documents that comprise the settlement documents herein, and that the necessary authorizations have been obtained, by resolution or other action, and that the persons whose names appear as signatories below were authorized to accept this ZONING AGREEMENT on behalf of the PARTY under whose name they signed. 1.) Each PARTY specifically represents and warrants that it has the legal authority to enter into a ZONING AGREEMENT of the type and kind herein, and, 2.) The City of Newport Beach represents and warrants that this ZONING AGREEMENT and the regulations applied to PROPERTY are: a. Consistent with the GENERAL PLAN for the City of Newport Beach and any Specific Plans that apply to the area in which any portion of MORNINGSIDE's PROPERTIES are located, and; Morningside Recovery, LLC Zoning Agreement Exhibit A to Settlement Agreement [L09 -0011] — Zoning Agreement - Morningside — 10. 09.02 Final 4 b. Consistent with the Local Coastal Land Use Plan ( "CLUP ") for the City of Newport Beach and that the CLUP has been approved by the California Coastal Commission. E. Operation of Property: Applicable Regulations. Other than as expressly set forth in this ZONING AGREEMENT, the terms and conditions concerning the operation of the PROPERTIES, including but not limited to the permitted uses, density, intensity of use, and the location of buildings involved, shall be those set forth in the City of Newport Beach's ordinances and regulations. The City of Newport Beach shall not prevent operation of the PROPERTIES in compliance with the applicable regulations and all other applicable laws and regulations in Section I, below. F. Vested Rights. During the term of this ZONING AGREEMENT, except to the extent the City of Newport Beach reserves its discretion as expressly set forth in this ZONING AGREEMENT or in the applicable regulations and all other applicable laws and regulations specified in Section I, MORNINGSIDE shall have the vested right, within the limits and constraints of the applicable regulations, to conduct operations of LICENSED FACILITIES and SOBER LIVING HOMES at its PROPERTIES. In the event Ordinance 2008 -5 is repealed by action of the City Council of the City of Newport Beach or the electorate, or if a court of competent jurisdiction declares the Ordinance invalid or unenforceable, this ZONING AGREEMENT shall remain in full force and effect. G. Police Power. In all respects not provided for in this ZONING AGREEMENT, the City of Newport Beach shall retain full rights to exercise its police power to regulate the operation of residential care facilities on the PROPERTIES provided such powers are applied consistently with the provisions of state law and the terms of this ZONING AGREEMENT. H. No Conflicting Enactments. During the term of this ZONING AGREEMENT the City of Newport Beach shall not apply to the PROPERTIES any City- adopted ordinance, policy, rule, regulation, or other measure relating to operation of the FACILITIES to the extent it conflicts with this ZONING AGREEMENT. I. Reservations of Authority. Regardless of any provisions set forth in this ZONING AGREEMENT to the contrary, the laws, rules, regulations, and official policies set forth herein shall apply to and govern operations at the PROPERTIES below in this section: 1.) Procedural Regulations. Then current procedural regulations relating to hearing bodies, petitions, applications, notices, findings, records, hearings, reports, recommendations, Morningside Recovery, LLC Zoning Agreement Exhibit A to Settlement Agreement [L09- 0011]— Zoning Agreement - Morningside — 10. 09.02 Final 5 appeals, and any other matter of procedure shall apply to the PROPERTY, provided that they are adopted and applied Citywide. 2.) Consistent City Regulations. Newport Beach City ordinances, resolutions, regulations, and official policies governing development and building that do not conflict with the ZONING AGREEMENT, or where MORNINGSIDE has consented in writing to the regulations, application to the PROPERTIES. 3.) Public Health and Safety. Any Newport Beach City ordinance, regulation, rule, program, or official policy of general application that is necessary to protect persons on the PROPERTIES or in the immediate community from conditions dangerous to their health or safety. The City of Newport Beach may unilaterally enact any ordinance, regulation, rule, program, or official policy of general application necessary to protect persons from conditions dangerous to their health of safety. J. No Agency. Neither PARTY is acting as the agent of the other in any respect. Each PARTY is an independent contracting entity with respect to the terms, covenants, and conditions contained in this ZONING AGREEMENT. This ZONING 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 operation of private property by the owner or lessee of the property. K. Effective Date. This ZONING AGREEMENT shall not become effective, and except as set forth in subsection (1) of this Section, neither PARTY shall have any rights or obligations hereunder, until the "Effective Date." 1.) This ZONING AGREEMENT shall become effective on: a. The 91St day following the City Council of the City of Newport Beach's passage of the ordinance approving this ZONING AGREEMENT, or b. If a referendum or other elective challenge to the ordinance approving this ZONING AGREEMENT qualifies for the ballot, then on the 31St day after the City Clerk of the City of Newport Beach certifies that the referendum or other elective challenge has failed to pass, or Morningside Recovery, LLC Zoning Agreement Exhibit A to Settlement Agreement [L09- 0019] — Zoning Agreement - Morningside — 10.09.02 Final 6 C. If litigation is initiated to challenge this ZONING AGREEMENT prior to the Effective Date established in accordance with Section K (1) (a), and (b), above, then on the 31st day after the litigation has terminated, or the time for appeal has expired, and the legal challenge has been unsuccessful. 2.) The term of this ZONING AGREEMENT shall commence on the Effective Date and shall expire at the conclusion of the 25th year thereafter. However in no event shall the term of this ZONING AGREEMENT exceed thirty (30) years after its execution. 3.) Stay of Ordinance 2008 -5 Pending Effective Date. Prior to the effective date of the ordinance adopting this ZONING AGREEMENT, or that date upon which it becomes clear that there will be no Effective Date, whichever is later, the CITY shall not otherwise enforce the provisions of Ordinance 2008 -5 against MORNINGSIDE. L. Amendment or Cancellation of the Zoning Agreement. Other than modifications of this ZONING AGREEMENT under section I subsection (3) of this ZONING AGREEMENT, this ZONING AGREEMENT may be amended or cancelled in whole or in part only by mutual written and executed consent of the PARTIES in compliance with California Government Code section 65868, and City of Newport Beach Municipal Code section 15.45.070. M. Enforcement. Unless amended or cancelled as provided in Section L, above, or modified or suspended pursuant to California Government Code section 65869.5, this ZONING AGREEMENT is enforceable by either PARTY despite any change in any applicable GENERAL PLAN or Specific Plan, zoning, subdivision, or building regulation, or other applicable ordinance or regulation adopted by the City (including by the City's electorate), that purports to apply to any or all of the PROPERTIES. N. Periodic Review of Compliance. CITY and MORNINGSIDE shall each comply in good faith with the terms of this ZONING AGREEMENT. The PARTIES shall review this ZONING AGREEMENT at least once every 12 months from the Effective Date for good faith compliance with its terms, consistent with Government Code sections 65865 and 65865.1 and City of Newport Beach Municipal Code section 15.45.080. At the reviews, MORNINGSIDE shall document the current status of its operations. MORNINGSIDE also agrees to furnish such evidence of good faith compliance with this ZONING AGREEMENT as the CITY may require in the reasonable exercise of its discretion, and after reasonable notice to Morningside Recovery, LLC Zoning Agreement Exhibit A to Settlement Agreement [L09 -0011] - Zoning Agreement - Morningside - 90.09.02 Final 7 MORNINGSIDE. On or before March 31st, June 30`h• September 30`" and December 31st of each year during the term of this ZONING AGREEMENT, MORNINGSIDE shall submit a Compliance Review Report, whose template is attached hereto as Exhibit 3. The requirement of good faith compliance shall be met upon the submittal to the CITY of an accurate Compliance Review Report, signed by a principal of MORNINGSIDE certifying personally and on MORNINGSIDE's behalf, demonstrating MORNINGSIDE's compliance with operating conditions, facility locations and the number of CLIENTS and CLIENT BEDS at each MORNINGSIDE FACILITY. The CITY, shall have the right to audit the accuracy of the Compliance Review Report through on -site inspections of MORNINGSIDE's FACILITIES, including its administrative headquarters, upon reasonable notice to MORNINGSIDE and following the Inspection Protocol as shown in Exhibit 4. O. Events of Default and Remedies. 1.) Default by Morningside. Morningside's compliance with the terms of this Agreement is subject to the following enforcement provisions: a. For Violations of the Operational Conditions: The City may, at its sole discretion, follow its Administrative Citation process (Newport Beach Municipal Code Chapter 1.05) to remedy violations of the Operational Conditions until such time as the City Council, at a noticed public hearing, deems that Morningside is unable or unwilling to remedy the violations and comply with the terms of this ZONING AGREEMENT. At that point, subdivision (b) of this section applies. b. Pursuant to California Government Code section 65865.1, if the CITY determines that MORNINGSIDE has not complied in good faith with its obligations pursuant to this ZONING AGREEMENT, the CITY shall by written notice to MORNINGSIDE specify the manner in which MORNINGSIDE has failed to comply and state the steps MORNINGSIDE must take to bring itself into compliance. If MORNINGSIDE does not commence efforts to achieve compliance within thirty (30) days after receipt of written notice from the CITY specifying the manner in which MORNINGSIDE has failed to comply and diligently pursue steps that achieve full compliance, then MORNINGSIDE shall be deemed to be in default under the terms of this ZONING AGREEMENT. The CITY may then seek available Morningside Recovery, LLC Zoning Agreement Exhibit A to Settlement Agreement [L09 -0011] — Zoning Agreement -Morningside — 10.09.02 Final 8 remedies as provided in Government Code section 65865.1, subsections (3) and (4), below, and section G above. 2.) Default by City. If the CITY has not complied with any of its obligations and limitations under this ZONING AGREEMENT, MORNINGSIDE shall by written notice to the CITY specify the manner in which the CITY has failed to comply and state the steps necessary for the CITY to bring itself into compliance. If the CITY does not commence efforts to achieve compliance within thirty (30) days after receipt of the written notice from MORNINGSIDE specifying the manner in which the CITY has failed to comply and diligently pursue steps that achieve full compliance, then the CITY shall be deemed to be in default under the terms of this ZONING AGREEMENT. MORNINGSIDE may then seek specific performance or similar equitable remedy as provided in subsection (3) of Section O, below. 3.) Specific Performance and Remedies. The PARTIES acknowledge that remedies at law are generally inadequate and that specific performance is appropriate for the enforcement of this ZONING AGREEMENT. Except as otherwise expressly provided in this section, the remedy of specific performance or, in the alternative, a writ of mandate, shall be the sole and exclusive remedy available to either PARTY in the event of the default, or alleged default, by the other. 4.) Recovery of Legal Expenses by Prevailing Party in Any Action. In any judicial proceeding between the PARTIES that seeks to enforce the provisions of this ZONING AGREEMENT, the prevailing party shall recover all of its actual and reasonable costs and expenses. These costs and expenses shall include expert witness fees, attorneys' fees, and costs of investigation and preparation before the initiation of the action. The right to recover these costs and expenses shall accrue upon initiation of the action. P. Cooperation. Each PARTY covenants to take all reasonable actions and execute all documents that may be necessary to achieve the purposes and objectives of this ZONING AGREEMENT. Morningside Recovery, LLC Zoning Agreement Exhibit A to Settlement Agreement (L09- 00111— Zoning Agreement - Morningside — 10, 09.02 Final 9 Q. Force Maieure. Neither PARTY shall be deemed to be in default where failure or delay in performance of any of its obligations under this ZONING AGREEMENT is caused, through no fault of the PARTY whose performance is prevented or delayed, by floods, earthquakes, other acts of God, fires, war, riots or other hostilities, strikes or other labor hostilities, state or federal regulations, or court actions. R. Third Party Legal Challenge. If a third party brings a legal action challenging the validity or enforceability of any provision of this ZONING AGREEMENT or the applicable regulations or the manner in which the ordinance approving this ZONING AGREEMENT was processed and approved, including the application of the California Environmental Quality Act ( "CEQA ") to that process, the PARTIES shall defend the third party challenge jointly, and each party shall be responsible for its legal expenses incurred in connection with the challenge, except that either or both parties may seek recovery of all legal expenses from the third party challenger. S. Estoppel Certificate. At any time, either PARTY may deliver written notice to the other PARTY that the PARTY certify in writing that, to the best of its knowledge: 1.) This ZONING AGREEMENT is in full force and effect and is binding on the PARTY; 2.) This ZONING AGREEMENT has not been amended or modified either orally or in writing. If this ZONING AGREEMENT has been amended, the PARTY providing the certification shall identify the amendments; and, 3.) The requesting PARTY is not in default in the performance of its obligations under this ZONING AGREEMENT. If the requesting PARTY is in default, the other PARTY must describe the nature of the default. The certifying PARTY shall execute and forward the certificate within sixty (60) days following receipt of notice. Any assignee of a PARTY's rights and obligations hereunder, as referred to in this Section, shall be entitled to rely on the certificate. T. Further Actions and Instruments. Each PARTY shall cooperate with and provide reasonable assistance to the other PARTY to the extent consistent with and necessary to implement this ZONING 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 Morningside Recovery, LLC Zoning Agreement Exhibit A to Settlement Agreement [L09 -001 I] —Zoning Agreement - Morningside — 10.09.02 Final 10 implement this ZONING AGREEMENT or to evidence or consummate the transactions contemplated by this ZONING AGREEMENT. U. Notices. Any notice or demand that shall be required or permitted by law or any provision of this ZONING AGREEMENT shall be in writing. If the notice or demand will be served upon a PARTY, it shall be personally served to the PARTY; deposited in the U.S. Mail, certified, return receipt requested, and postage prepaid; or delivered by a reliable courier service that provides a receipt showing date and time of delivery with courier charges prepaid. The notice or demand shall be addressed as follows: To City: City of Newport Beach 3300 Newport Boulevard Post Office Box 1768 Newport Beach, California 92663 -3884 Attn: City Manager Fax: 949-644-3020 With a copy to: City Attorney City of Newport Beach 3300 Newport Boulevard Post Office Box 1768 Newport Beach, California 92663 -3884 To Operator: Morningside Recovery, LLC 3404 A Via Lido Newport Beach, California 92663 (949) 675 -0006 With a copy to: Mary Helen Beatificato Beatificato & Associates, APC 28562 Oso Parkway, Ste. D -42 Rancho Santa Margarita, California 92688 Either PARTY may change the address stated in this Section by notice to the other PARTY in the manner provided in this Section, and notices shall be addressed and submitted to the new address. Notice shall be deemed to be delivered upon the earlier of: (a) the date received; or (b) three business days after deposit in the mail as provided above. Morningside Recovery, LLC Zoning Agreement Exhibit A to Settlement Agreement [L09- 0011J— Zoning Agreement - Morningside — 10.09.02 Final 11 V. Rules of Construction and Miscellaneous Terms. 1.) Rules of Construction. The singular includes the plural; the masculine and neuter include the feminine; "shall" is mandatory; "may" is permissive. 2.) Time is of the essence. Time is of the essence regarding each provision of this ZONING AGREEMENT in which time is an element. 3.) Waiver. Failure by a PARTY to insist upon the strict performance of any of the provisions of this ZONING 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. 4.) Counterparts. This ZONING AGREEMENT may be executed in two or more counterparts, each of which shall be identical and may be introduced in evidence or used for any other purpose without any other counterpart, but all of which shall together constitute one and the same ZONING AGREEMENT. 5.) Entire Agreement. Except for the Settlement Agreement, this ZONING AGREEMENT constitutes the entire agreement and supersedes all prior agreements and understandings, both written and oral, between the PARTIES with respect to the subject matter addressed in this ZONING AGREEMENT. 6.) Construction. This ZONING AGREEMENT has been drafted after extensive negotiation and revision. Both the CITY and MORNINGSIDE are sophisticated parties who were represented by independent counsel throughout these negotiations. The CITY and MORNINGSIDE each agree and acknowledge that the terms of this ZONING AGREEMENT are fair and reasonable, taking into account their respective purposes, terms, and conditions. This ZONING AGREEMENT shall therefore be construed as a whole consistent with its fair meaning, and no principle or presumption of contract construction or interpretation shall be used to construe the whole or any part of this ZONING AGREEMENT in favor of, or against, either PARTY. Morningside Recovery, LLC Zoning Agreement Exhibit A to Settlement Agreement [L09 -0011]— Zoning Agreement - Morningside — 10.09.02 Final 12 7.) No Third Party Beneficiaries. The only parties to this ZONING AGREEMENT are the CITY and MORNINGSIDE. This ZONING AGREEMENT does not involve any third party beneficiaries, and it is not intended and shall not be construed to benefit or to be enforceable by any other person or entity. 8.) Applicable Law and Venue. This ZONING AGREEMENT shall be construed and enforced consistent with the internal laws of the State of California. Any action arising under this ZONING AGREEMENT or brought by any PARTY for the purpose of enforcing, construing, or determining the validity of any provision of this ZONING 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. 9.) Section Headings. All section headings and subheadings are inserted for convenience only and shall not affect construction or interpretation of this ZONING AGREEMENT. 10.) Authority to Execute. The persons executing this ZONING AGREEMENT warrant and represent that they have the authority to execute this ZONING AGREEMENT on behalf of the entity for which they are executing this ZONING AGREEMENT. They further warrant and represent that they have the authority to bind their respective PARTIES to the performance of its obligations under the ZONING AGREEMENT. The agreement of the parties to the terms and conditions of this Zoning Agreement is evidenced by the signatures below. "CITY ": CITY OF NEWPORT BEACH M "MORNINGSIDE ": MORNINGSIDE RECOVERY, LLC M Keith D. Curry David Gates Title: Mayor of Newport Beach Title: Chief Operating Officer Morningside Recovery, LLC Zoning Agreement Exhibit A to Settlement Agreement [L09 -0011]— Zoning Agreement - Morningside — 10.09.02 Final 13 APPROVED AS TO FORM: David R. Hunt Title: City Attorney City of Newport Beach ATTEST: 0 Leilani Brown Title: City Clerk City of Newport Beach MORNINGSIDE RECOVERY, LLC Candace Bruce Title: Chief Executive Officer APPROVED AS TO FORM: By: Mary Helen Beatificato Title: Counsel for Morningside Recovery, LLC [End of Document and Signatures] Morningside Recovery, LLC Zoning Agreement Exhibit A to Settlement Agreement [L09 -0011 ] — Zoning Agreement - Momingside — 10. 09.02 Final 14 EXHIBIT 1 Exhibit 1 to Zoning Agreement City of Newport Beach Morningside Recovery, LLC EXHIBIT 1 OPERATIONAL CONDITIONS for MORNINGSIDE RECOVERY, LLC 1. Occupancy Level. The operator of Morningside Recovery, LLC, hereinafter referred to as "Operator," is limited to a total of thirty -six (36) Clients and thirty six (36) Client Beds in the City of Newport Beach, and shall limit occupancy of its current facilities to the following: a. 4823 A River Avenue — 6 Client and Client Bed maximum b. 4823 B River Avenue — 6 Client and Client Bed maximum c. 5015 A River Avenue — 6 Client and Client Bed maximum through September 30, 2010 only d. 5015 B River Avenue — 6 Client and Client Bed maximum through September 30, 2010 only e. 112 B 39th Street — 6 Client and Client Bed maximum f. 29 Ima Loa Court — 6 Client and Client Bed maximum g. 100 Via Antibes, 102 Via Antibes, and 208 Via Lido Soud — 12 Client and Client Bed maximum, beginning September 1, 2010 The above occupancy levels reflect a maximum of thirty -six (36) Clients and Client Beds citywide, with a maximum of thirty (30) Clients and Client Beds in the Peninsula Zone. The Client counts are exclusive of one staff member who also may reside at each facility. Morningside agrees to manage its Client populations during September 2010 so that its Client count and Client Bed count do not exceed thirty (30) within the Peninsula Zone. The boundaries of the Peninsula Zone are more particularly defined and depicted in Exhibit 2 of the corresponding Zoning Agreement. Operator may move Clients from the above properties into other properties but must maintain the 30 Client and Client Bed cap in the Peninsula Zone and 36 total Client and Client Bed cap citywide, provided that Operator maintains the dispersion standards in Section III A, subsections 5 (a) & (b) of the Zoning Agreement. 2. Staffing. Operator shall have enough staff to appropriately and responsibly manage each facility; including at least one qualified manager on -site or on -call at all times (24 hours a day, seven days each week). [L09 -00111 Zoning Agreement — Morningside — Exhibit 1 10. 08.04 11287-000 711204 4280. doc Exhibit 1 to Zoning Agreement City of Newport Beach Morninqside Recovery, LLC 3. Governmental Referrals. Operator shall comply with the restrictions imposed by Newport Beach Municipal Code Section 20.05.030 which limits the number of parolees - probationers per residence with the additional limitation that Operator shall not house any client (1) who is required to register as a sex offender pursuant to Penal Code Sections 290, et seq.; or (2) who is required to register as a criminal street gang member pursuant to Penal Code Sections 186.30 et seq.; or (3) whose housing or other costs of treatment are paid for by the state in a funded Proposition 36 program. 4. Assembly Uses. Assembly uses are prohibited in these facilities, except those that are limited solely to Client residents of the facility and facility staff (and in some cases small meetings of a Client's family members with facility staff). 5. Medical Waste. Any and all medical waste generated through the operation of the facility shall be disposed of in accordance with the City of Newport Beach's Municipal Code, all other laws and best industry standards and practices. 6. Trash and Trash Enclosures. Operator shall comply with City code provisions pertaining to trash enclosures, and if directed by the Planning Director, shall secure and maintain commercial bin service at the subject properties. Operator shall provide a sufficient number of plastic trash cans with sealable covers to contain all of the refuse generated by the facility, which are to be used at all times. Trash cans shall be put out for pick up no earlier than 7:00 p.m. and before 8:00 p.m. on the evening before trash collection day, and shall be put back within the property by 6:00 p.m. on the day of collection. 7. Smoking and Tobacco Products. Per NBMC Section 20.91A.050(A), no Clients, guests, or any other users of the subject property may smoke in an area from which the secondhand smoke may be detected on any parcel other than the parcel upon which the use is located. Operator shall make good faith best efforts to contain secondhand smoke generated by patients, Clients, customers, and staff within the lot line of the subject property. In addition, Operator will not allow Clients, staff, or residents to litter cigarette butts on the ground, floor, deck, sidewalk, gutter, boardwalk or street. Operator's administrators and managers shall actively enforce, on the City's behalf, the City's prohibition tobacco use on beaches, boardwalks, and piers (NBMC §11.08.080). This includes any meetings Morningside's Clients participate in "off- site." 8. Parking. Operator shall keep garages and other parking spaces at its facilities clear, unobstructed and available for parking for staff, and visiting family members' vehicles, cleaning persons' vehicles, and client transport vans at all times. Clients to the facility are not permitted to have personal vehicles at the facility. [L09 -0011] Zoning Agreement — Morningside — Exhibit 1 10. 09.02 11287 - 0007 \1204428v3.doc Exhibit 1 to Zoning Agreement City of Newport Beach Morninqside Recovery, LLC 9. Client Transport. Operator shall ensure that loading and unloading of passengers of the facility's transportation van shall occur only in open parking spaces or garage spaces. The van driver is prohibited from stopping or double - parking in a traffic lane to load and unload passengers. In addition, client drivers shall respect all City rules regarding parking and /or stopping and waiting to load residents. Client transport vehicles shall not block adjacent alleys or street ends. Client drivers shall not leave vehicles in reverse gear if reverse has an audible back -up warning sound. Client drivers shall speak to residents at a level protective of neighborhood peace, cognizant of the hour, to avoid waking neighbors. 10. Profanity and Lewd Behavior. Operator shall not tolerate lewd behavior, lewd speech, or profanity at the subject property. Profanity at a level audible to neighboring residents may result in an administrative citation issued by the City upon the property owner and operator or other enforcement action authorized under the Zoning Agreement. 11. Noise. Operator shall strictly adhere to the City's noise standards (NBMC §10.26.025; 10.26.030). Operator shall be responsible for minimizing clapping, stomping, or other noises at meetings or gatherings at the subject property, consistent with NBMC §10.26.030. 12. Quiet Hours. Operator shall enforce the Quiet Hours of 9:00 p.m. to 8:00 a.m. daily to its patients, Clients and customers occupying beds in its facility. Quiet means noise, including music, television, and voices, is not audible beyond the perimeter of the facility except in a demonstrable emergency. 13. Route Plans. Operator shall adhere to the Route Plans for transport of its staff, residents, clients, and customers. The Route Plans for all Morningside facilities are attached hereto as Exhibit 5. Short-term interruptions, such as medical emergencies or street maintenance beyond Operator's control, are allowable modifications to the Route Plans. 14. Deliveries. Staff members in their private vehicles may deliver business products and other packages and goods to the facility during weekdays between the hours of 9:00 a.m. to 5:00 p.m. 15. Hotline. Operator shall establish, provide public notice of, and operate a hotline for receiving inquiries and /or complaints in reference to its operation of its facility. The phone number need not be staffed 24 hours a day seven days a week, but callers should be responded to within the next 24 -hour period. Alternatively, the Operator shall provide area residents and the City with a contact name, phone number, and e-mail address that is available 24 hours a day, seven days each week. This contact shall be available to assist residents and the City with any problems or concerns arising from the facility. E -mails or messages left for the [1_09 -0011] Zoning Agreement — Morningside — Exhibit 1 10.09.02 1 1287-0007\1 204428v3.doc Exhibit 1 to Zoning Agreement City of Newport Beach Morninoside Recovery, LLC Operator's designated contact shall be returned promptly within a 24 -hour period from receipt. 16. Stakeholder Group. Upon invitation by the City, Operator shall participate in the activities of any stakeholder committee or group established by the City to address complaints and concerns of residents of the City regarding the operation of Residential Care Facilities in the City. 17. Persons per Bedroom. Operator shall not allow more than two clients in one bedroom unless the size of the structure warrants a larger occupancy for any single bedroom. 18. Building and Zoning. Operator recognizes that each of its facilities have specific setbacks from the side yards, front yard, and/or back yards per the City's Building and Zoning Codes. Operator will keep these setbacks clear of obstruction, including building obstruction. The orderly storage of trashcans is acceptable in setbacks. 19. Facility Nuisances. The subject properties shall not be unsafe, unsightly or poorly maintained. If Operator receives notice of a nuisance violation from the City in regards to any of these issues, Operator shall correct the violation within seven calendar days. 20. Beaches and Other Common Gathering Areas. Operator's use of the beaches for meetings, prayer, conversation, or other gatherings shall show due respect to non - resident visitors, residents, and other beachgoers, thus allowing them to take full enjoyment of the beach. Operator shall not conduct business on the beach (per NBMC §10.08.030). 21. Services to Facility's Clients or Residents. Operator will use industry's best practices to ensure that the facility's clients or residents stay in recovery (including scheduled substance testing, random substance testing, and required counseling). 22. Federal, State and Local Laws. Operator shall comply with all federal, state, and local laws. The issuance of this use permit shall not constitute a waiver of the requirements of any federal, state or local law, including the requirements of the California Building Code. 23. Affidavit of Disability. The Operator shall execute an affidavit declaring that all clients receiving services from this facility are disabled persons, as that term is defined by federal and state fair housing laws. &09 -00111 Zoning Agreement - Morningside - Exhibit 1 10.09.02 11 287-0007\ 1 204428v3.doc EXHIBIT 2 Exhibit 2 Depiction and Description of "Peninsula Zone" Depiction of Peninsula Zone: The lands within the yellow boundary as shown below- �' r � r � I Must: •wport City Hal NvwporL : ^Ior - - lsbeMl wd Bob" r:•r� .., . edge, Y Description of Peninsula Zone: Starting at the mouth of the Santa Ana River: • The land area southerly of the Newport and Seminouk Sloughs known as Newport Shores, and • The land coastward of Pacific Coast Highway to Newport Boulevard known as Balboa Coves, West Newport Beach, Lido Sands, and Newport Island; and • The land southerly of a line extending along the Federal Navigational Channel between Newport Boulevard and the Newport Harbor Jetty, known as the Balboa Peninsula, Lido Peninsula, Lido Isle, Bay Island, and Cannery Village; and • Southward on Newport Boulevard about 50 feet to Lower Newport Bay; and • All lands southerly of Lower Newport Bay between Newport Boulevard down the Federal Navigational Channel within the Lower Bay, inclusive of Lido Isle and Bay Island and inclusive of the Balboa Peninsula. (L f 0 -00 1 11 10.16.14 Morningside —Zoning Agreement Exhibit 2 (Peninsula Zone) EXHIBIT 3 Exhibit 3 Morningside Recovery Quarterly Compliance Review Report Date Report Submitted: This form covers the 3 -month period of through During the above period, Morningside Recovery managed or controlled the following facilities in Newport Beach: Note: In the above chart, "Clients" are subject to the same numerical restrictions as "Client Beds" in the Zoning Agreement. In other words, if Morningside is authorized to house six Clients in a particular facility, then it is limited to an equal number of Client Beds in that facility. The Morningside Staff Member to join the City in any inspection of the above facilities shall be: (e -mail: , phone #: ) By my signature below I certify and declare under the penalty of perjury under the laws of the State of California, in my personal capacity and on behalf of Morningside Recovery, LLC that Morningside Recovery has met all Operational Conditions as [L09- 0011]- Zoning Agreement — Morningside — Exh. 3 — Quarterly Compliance Report — 10 -08 -04 Morningside Recovery Facilities Date of Report: September 30, 2010 Location Peninsula Zone? Peninsula Clients & Client Beds Off - Peninsula Clients & Client Beds ADP Licensed? 1. 4823 River Avenue - A Y 6 N 2. 4823 River Avenue - B Y 6 N 3. 100 Via Antibes Y 4 N 4. 102 Via Antibes Y 4 N 5. 208 Via Lido Soud Y 4 N 6. 112 B 39th Street Y 6 Y 7. 29 Ima Loa Court N 6 N Total: 30 6 Note: In the above chart, "Clients" are subject to the same numerical restrictions as "Client Beds" in the Zoning Agreement. In other words, if Morningside is authorized to house six Clients in a particular facility, then it is limited to an equal number of Client Beds in that facility. The Morningside Staff Member to join the City in any inspection of the above facilities shall be: (e -mail: , phone #: ) By my signature below I certify and declare under the penalty of perjury under the laws of the State of California, in my personal capacity and on behalf of Morningside Recovery, LLC that Morningside Recovery has met all Operational Conditions as [L09- 0011]- Zoning Agreement — Morningside — Exh. 3 — Quarterly Compliance Report — 10 -08 -04 Exhibit 3 Morningside Recovery Quarterly Compliance Review Report described in Exhibit 1 to the Zoning Agreement during the above Compliance Review Period. DATE DATE [Name], [Title] MORNINGSIDE RECOVERY, LLC GPI [Name], [Title] [L09- 0011]- Zoning Agreement — Morningside — Exh. 3 — Quarterly Compliance Report — 10 -08 -04 EXHIBIT 4 Exhibit 4 Inspection Protocol The following protocol reflects the CITY's compliance review under Section N (Periodic Review of Compliance) of the Zoning Agreement between Morningside Recovery and the City of Newport Beach. 1. On or before March 31, June 30, September 30 and December 31 of each year, Morningside shall submit to the City's code enforcement division ( "CED ") the Compliance Review Report ( "Report") shown in Exhibit 3 to the Zoning Agreement. At the same time, Morningside shall also submit the name, phone number, and e-mail of the Morningside staff member that Morningside designates to join any inspection ( "Morningside Staff Member "). 2. On a quarterly basis, CED shall submit the list of Morningside facilities to the Police Department for verification that no persons known to have been referred to Morningside by the government (such as parolees) in violation of the Zoning Agreement live at any of the facilities. 3. On a quarterly basis, CED shall select up to two (2) facilities on the list to verify the Client count and Client Bed count through an onsite inspection during a weekday. CED and Morningside shall endeavor to schedule this inspection at a time when Clients are present. 4. CED shall notify the Morningside Staff Member by e-mail and telephone of the time of the inspection and which facilities will be inspected. Such notification will occur a reasonable amount of time prior to the inspection, generally four (4) but not less than two (2) hours prior to inspection. 5. While inspecting each facility, CED staff shall not obtain Client names nor take photos of Clients and shall be respectful at all times of Client privacy. CED staff shall count Clients or Client Beds and verify that the Client and Client Bed Count at each facility match those on the report submitted by Morningside. 6. An inspection report shall be made for each facility. 7. All inspection reports shall be submitted to the Planning Department for inclusion in the City's annual review of Morningside's compliance with the Zoning Agreement. fCOg- 001 11 1 0 -1 6 -1 4 Morningside -Zoning Agreement Exhibit 4 (Inspection Protocol) EXHIBIT 5 Exhibit 5 Client Transport Routes ._. HOSPITAL RD 890 °•,., `. f s�rr °Ff rr pA 3 GOO .10S! `• Cr 4 p�, r p �lG1�m' - O 1.'• J JQ 44r� P 41" �ynk o o fly v WAG, KIDS o Pita 0Rt i ti ti N p tp Vte \ �P CLIFF OP of 4Sh r�i`�t� 1'IOAG IT SI^NSn (�Sti AVF AV HSt G i t 4lT\ f:l l4NN('f. A! aS lbpq COVl.ti' - ��� y`OH ,, _ S! S� SAS Q T T TURNING BASIN t µ\ry c. O 4 i \'m A Legend; ,tE� 5� Acceptable Route �► '' �►„ "' „.,, G v ir/ `tm G v Vt x oq ' O O 9P 29TIISr S 0 1011511 NOTES: 1 — Within the boundaries of the above chart, Morningside's Client Transport Routes are limited the following streets, except during emergencies or if approved routes are closed: • Balboa Boulevard • Newport Boulevard • Superior Ave • 32nd Street • 39th Street, Seashore between 39th and 38th, and 38th Street • Ticonderoga • River Avenue (only between 51 st Street and Balboa Boulevard — not the section of River Ave between 45th and 32nd Street) • Via Lido, Via Antibes, Via Lido Soud, Via Lido Nord • Coast Highway 2 — The General Rule for Morningside's Client Transport vans shall be that Morningside shall use major thoroughfares (Newport Boulevard and Balboa Boulevard) whenever possible, avoiding narrow neighborhood streets such as River Avenue between 45th and 32nd Street). 4 — The City and Morningside shall work cooperatively to amend these routes whenever Morningside moves a facility. (L10 -0011) 10 -16 -04 Momingside — Zoning Agreement Exhibit 5 (Client Transport Routes) — 10 -08 -04 STATE OF CALIFORNIA } COUNTY OF ORANGE CITY OF NEWPORT BEACH I I, Leilani I. Brown, City Clerk of the City of Newport Beach, California, do hereby certify that the whole number of members of the City Council is seven; that the foregoing ordinance, being Ordinance No. 2010 -18 was duly and regularly introduced on the 14th day of September, 2010, and adopted by the City Council of said City at a regular meeting of said Council, duly and regularly held on the 28th day of September, 2010, and that the same was so passed and adopted by the following vote, to wit: Ayes: Selich, Rosansky, Henn, Webb, Gardner, Daigle, Mayor Curry Noes: None Absent: None Abstain: None IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said City this 29th day of September, 2010. (Seal) a� iv- City Clerk City of Newport Beach, California CERTIFICATE OF PUBLICATION STATE OF CALIFORNIA } COUNTY OF ORANGE } as. CITY OF NEWPORT BEACH } I, LEILANI I. BROWN, City Clerk of the City of Newport Beach, California, do hereby certify that Ordinance No. 2010 -18 has been duly and regularly published according to law and the order of the City Council of said City and that same was so published in The Daily Pilot, a daily newspaper of general circulation on the following dates: 317111! Introduced Ordinance: September 18, 2010 Adopted Ordinance: October 2, 2010 qq��^ �, ¢, 1�p�/ In witness whereof, I have hereunto subscribed my name this 1r 1 day of Oc V ��, City Clerk City of Newport Beach, California