Loading...
HomeMy WebLinkAbout15 - Newport Dunes Settlement AgreementSEW PpRr CITY O F �`. NEWPORT BEACH City Council Staff Report Agenda Item No. 15 July 10, 2012 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL Community Development Department Kimberly Brandt, AICP, Director 949 - 644 -3226, kbrandt(c newportbeachca.00v FROM: City Attorney's Office Aaron C. Harp, City Attorney 949 - 644 -3131, aharp(o)newportbeachca.gov PREPARED BY: Kimberly Brandt, Director APPROVED:�1 nr V V Second Amendment to the Amended Newport Dunes Settlement TITLE: Agreement among the City of Newport Beach, County of Orange, Waterfront Resort Properties L.P., and Newport Dunes Marina, LLC, located at 1131 Back Bay Drive (PA2012 -080) ABSTRACT: City Council approval is requested for the proposed second amendment to the Amended Newport Dunes Settlement Agreement which 1) incorporates the maximum allowable gross square footage for buildings established by the City of Newport Beach General Plan, 2) allows for modifications to the location of existing and future land uses, and 3) documents both current and outstanding property owner obligations, including the payment of fees. The amended agreement also includes a settlement payment of $30,000. RECOMMENDATION: a) Determine that the approval of the Second Amendment to the Amended Newport Dunes Settlement Agreement is exempt from the California Environmental Quality Act under Section 15305 of the California Environmental Quality Act (CEQA) Guidelines - Class 5 (Minor Alterations in Land Use Limitations) and direct staff to file a notice of exemption. b) Approve the Second Amendment to the Amended Newport Dunes Settlement Agreement between the City and the County of Orange, Waterfront Resort Properties L.P., and Newport Dunes Marina, LLC; and c) Authorize the City Manager to execute the amendment. 1 Newport Dunes Settlement Agreement Page 2 FUNDING REQUIREMENTS: See analysis below. DISCUSSION: Background The Newport Dunes is a 100 -acre State tidelands property located on the Upper Newport Bay. The Newport Dunes is held in trust by the County of Orange and leased to a private operator. In 1983, the City, the County of Orange, and Newport Dunes, Inc. (predecessor to Waterfront Resort Properties, L.P. and Newport Dunes Marina L.L.C.) signed a settlement agreement (Agreement) to resolve jurisdictional and entitlement disputes relating to the development of the Newport Dunes. The Agreement (as amended in 1984, 1987, 1988, and most recently 1990) limits the land uses and development at the Newport Dunes. The key development entitlements contained in the Agreement include: • 444 -space recreational vehicle (RV) park • 275 -room family inn • 430 -slip marina • 400 -space dry boat storage • 4,500- square -foot coffee shop (Back Bay Bistro) • 2 additional restaurants totaling 27,500 square feet of net public area (NPA)' The development entitlements outlined in the Agreement were later incorporated into the General Plan by reference in Table LU2 of the Land Use Element. Analysis Waterfront Resort Properties, L.P. and Newport Dunes Marina L.L.C. (Company), the current lessees and operators of the Newport Dunes, are seeking to amend the terms and provisions of the Agreement. This amendment is deemed necessary in order to confirm and clarify certain provisions of the Agreement, to reflect the current status of the development of the property, and to address the anticipated continued development of the facilities permitted under and contemplated by the Agreement. The key changes to the Agreement are summarized as follows: ' "Net Public Area" is defined as the total area accessible to the public within an eating and/or drinking establishment, excluding kitchens, restrooms, offices pertaining to the use, and storage areas. 2 Newport Dunes Settlement Agreement Page 3 Maximum Floor Area Limit. The amendment establishes a maximum floor area of 567,000 square feet that reflects the development limit established by the General Plan. While the current Agreement identifies floor area limits for certain uses, it does not contain an overall floor area limit. • Reapportionment of Restaurant Floor Area. A total of 32,000 square feet of net public area (NPA) for restaurant uses would be permitted on the entire property. The amendment removes the current prohibition against transferring restaurant floor area from the east side of the lagoon to the west side. Any reapportionment of restaurant floor area would be subject to review and approval by the Community Development Director. • Back Bay Bistro. The amendment authorizes the transfer of 4,600- square -feet NPA of the 27,500- square -feet NPA from the west side of the lagoon to the Back Bay Bistro located on the east side of the lagoon. A total of 9,100 square feet of NPA would be permitted. This is intended to reflect the existing improvements to the restaurant, including an enclosed outdoor patio area and an operable windscreen surrounding the exterior of the outdoor dining and bar areas. Location of Charter Boats. The amendment removes the restriction that limits the location of charter vessels for commercial purposes to the west side of the lagoon. The pedestrian bridge across the lagoon effectively prevents boats from entering and exiting the lagoon. The amendment would allow charter vessels for commercial purposes anywhere on the property, subject to the issuance of a marine charter permit. • Interim Dry Boat Storage. The amendment allows 50 interim spaces on the Family Inn site, an unused area of the RV park, or another appropriate location agreed to by all parties. These additional 50 spaces would be removed prior to the issuance of a certificate of occupancy for the Family Inn. The existing dry 286 -space boat storage on the east side of the lagoon would be maintained, and could be expanded to a maximum of permanent 400 spaces currently authorized by the Agreement. Boat storage may be relocated elsewhere on the property. • Boat Launching Ramp. The amendment allows the number of lanes at the boat launch ramp to be reduced from 7 lanes to 6. This is intended to reflect existing conditions. Also, restriping for 7 lanes would result in lanes too narrow for many boats. • Boat Trailer Parking. The amendment would reduce the number of required boat trailer parking spaces from 185 to 120 to reflect existing conditions. The Company believes that parking will be adequate based upon the anticipated use of the site. • Alternative Recreational Vehicles. Subject to the approval of the Community Development Director, the Company may install alternative recreational vehicles (ARVs) in the RV park. This is provision acknowledges the current practice renting portable, prefabricated trailer "cottages" in the RV spaces. Each ARV must be no larger than 400 square feet, have at least one axle, be registered with the State 3 Newport Dunes Settlement Agreement Page 4 Department of Housing and Community Development, and operated in a manner consistent with all State laws and regulations regarding recreational vehicle parks. The ARV units would be included within the total allowable 444 RV spaces and transient occupancy taxes would apply. The proposed amended Agreement is attached as Attachment CC 1 Fiscal Impacts The amended Agreement includes a compromise and settlement of disputed claims. The Company agrees to pay to the City the sum of $30,000 to cover the costs incurred by the City to resolve the areas of dispute between the parties. In addition, the Company will comply with the Traffic Phasing Ordinance and Fair Share Ordinance. The Company owes $835,402 in fees and has paid $275,000. The remaining $560,402 will be paid with future phases of development pursuant to the amended agreement. ENVIRONMENTAL REVIEW: The project qualifies for exemption under Section 15305 of the California Environmental Quality Act (CEQA) Guidelines - Class 5 (Minor Alterations in Land Use Limitations) because the proposed changes to the Agreement only involve the reapportionment of development currently authorized by the Agreement and incorporated into the General Plan by reference in Table LU2 of the Land Use Element; the Newport Dunes property has an average slope of less than 20 percent; and the proposed changes to the Agreement will not result in any changes in land use or density. Furthermore, the land use and development proposed are consistent with those analyzed by the Environmental Impact Report for the Newport Dunes Redevelopment certified by the County Board of Supervisors in 1980 and the Environmental Impact Report for the General Plan 2006 Update certified by the City in 2006. The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). Also, a notice of this item was mailed to the associations of the residential communities adjacent to the property. Submitted by: / 7 //L�i/ Kimberly Brand O , - . Director ` Attachments: CC 1 Second Amendment To Newport Dunes Settlement Agreement CC 2 Newport Dunes Map 4 City Council Attachment M Second Amendment to Newport Dunes Settlement 0 SECOND AMENDMENT TO NEWPORT DUNES SETTLEMENT AGREEMENT THIS SECOND AMENDMENT TO NEWPORT DUNES SETTLEMENT AGREEMENT (this "Amendment "), entered into this day of 2012 ( "Effective Date "), among the CITY OF NEWPORT BEACH, a municipal corporation and charter city ( "City "), the COUNTY OF ORANGE, a political subdivision of the State of California ( "County "), and WATERFRONT RESORT PROPERTIES L.P., a California limited partnership, and NEWPORT DUNES MARINA, LLC, a California limited liability company Qointly, the "Company "), is made with reference to the following facts: A. The City, the County and the Company's predecessor in interest entered into an Amended Newport Dunes Settlement Agreement that was executed on December 9, 1988, and amended by First Amendment to Amended Newport Dunes Settlement Agreement dated December 18, 1990 (as so amended, the "Original Agreement "), with respect to the tidelands referred to in Recital A of the Original Agreement, together with a small parcel of uplands (referred to herein as the "Property ", and from time to time in this Amendment as a particular "Parcel" as designated in Exhibit "A" attached hereto). The Original Agreement constituted an amended and restated version of a prior agreement, as amended, which was entered into in settlement of a City lawsuit that challenged, on environmental and other grounds, the County's approval of a redevelopment plan for the Property. B. The Property is the subject of an Amended and Restated Lease between the County of Orange and the Company executed on August 25, 2009 (the "Lease "); C. Company is the current lessee and operator of the Property pursuant to the Lease and the successor to Newport Dunes Partnership, a California partnership, the party to the Original Agreement. Pursuant to the Original Agreement, Company and its predecessors have constructed upon the Property certain recreational and visitor - serving facilities (the "Improvements "), which facilities include the following: (1) A recreational vehicle park ( "RV Park ") with four hundred six (406) spaces of the four hundred forty -four (444) spaces authorized by the Original Agreement; (2) Related support uses for the RV Park including a convenience store, a clubhouse, a laundry room, a meeting room, restrooms, maintenance facility and two residential units( a manager's unit and an employee unit); (3) An approximately four hundred thirty (430) slip marina, a clubhouse, marina storage area and laundry and restrooms for marina tenants; 55364.00004 \7008423.7 7 (4) Dry boat storage with approximately two hundred eighty -six (286) spaces, temporary dry boat storage upon Parcel C of the Property, a six -lane boat launching ramp and a paved area designed to accommodate approximately 120 vehicles with boat trailers; (5) A restaurant with related outdoor dining located on the east side of the lagoon, adjacent to the boat launch ramp, which includes one (1) employee residential unit; (6) A swimming beach and related visitor serving facilities including parking spaces, day use beach restrooms, water sports equipment rentals and temporary and permanent improvements designed to protect daily visitors from the elements; and (7) Commercial, office, storage and meeting rooms, which may include the Company's headquarters. D. The purpose and intent of this Amendment is to amend the terms and provisions of the Original Agreement in order to confirm and clarify certain provisions of the Original Agreement, to reflect the current status of development upon the Property consistent with the Original Agreement, and to address the anticipated continued development upon the Property of the facilities permitted under and contemplated by the Original Agreement, all as more particularly set forth herein. NOW THEREFORE, the parties hereto agree as follows: I. GENERAL PROVISIONS. A. The foregoing Recitals are true, correct and incorporated herein by this reference. B. All terms used herein and denoted by capitalized initial letters shall have the meaning set forth in the Original Agreement. When used herein, the term the "Agreement" shall mean the Original Agreement as hereby amended. Provisions included in "[ ] "s below are included to help clarify the references to the Original Agreement as hereby amended and the status of development of the Property as of the date of this Amendment. All square footage references for improvements that have been constructed as of the date of this Amendment are approximate. Prior to the issuance of a building permit for the Family Inn the size of all existing improvements shall be confirmed. C. Unless otherwise expressly provided herein, any reference to square footage shall mean gross floor area as defined in the City's Zoning Code. 55364.00004 \7006423.7 2 2 D. The parties agree that the total developed area shall not exceed 567,500 feet of gross floor area ( "Maximum Allowable Development Area ") as provided for in the City's General Plan as of the Effective Date, provided, however, that the following improvements shall not be considered a part of the gross floor area for purposes of determining whether the Maximum Allowable Development Area has been met or exceeded: (i) any covered dry boat stacking facility, as stated in Section IIIA, below, whether covered only or fully enclosed, and (ii) any temporary enclosure permitted pursuant to Section LC of the Agreement [as hereby amended pursuant to Section II, below]. E. City agrees that the development of the Property completed to date was completed generally in accordance with the terms, provisions and intent of the Original Agreement. Consistent with the terms of that certain letter dated August 19, 2011, Company has submitted to the City and the City has approved plans for the bar area improvements installed in the enclosed outdoor patio area of the Back Bay Bistro restaurant, and the City will issues building permits with respect to the same upon the mutual execution and delivery of this Amendment. Upon the execution of this Amendment, Company shall have the ability to reapportion the square footage assigned to the approved uses as provided herein. F. All future uses and development contemplated in the Agreement and not completed to date shall be subject to and comply with the City's applicable Municipal Code provisions and permitting requirements. Company shall secure all required permits before commencing any activity requiring a City permit or approval. The City retains its sole and unfettered discretion, as required by law, as to all future decisions and actions which would permit development of the Property with facilities in excess of the development described in the Agreement. II. ENTITLEMENT. Section I of the Original Agreement is hereby amended and restated to read in its entirety as follows: I. In consideration of the covenants and promises made by County and Company in this Agreement, City agrees that the Property may be used for the following purposes and shall approve the development of the Property contemplated in this Agreement, provided County and Company have complied with all conditions precedent to development that are specified in this Agreement. The development contemplated in this Agreement may proceed in phases as deemed appropriate by Company. The use and development of the property authorized by this Agreement is specified in Sections II and III of this Agreement. A. Family Inn. The construction of a family inn (the "Family Inn "), not to exceed two hundred seventy -five rooms (275), to be located on Parcel C of the Property. The Family Inn has not been constructed as of the date 55364.00004 \7008423.7 3 9 of this Amendment and the construction and operation of the Family Inn is subject to the following: (i) The Family Inn will be designed and constructed with features that will make it attractive to families and these design and construction features shall include, but not necessarily be limited to, the following: (a) Kitchen facilities in approximately forty percent (40 %) of the units; (b) A room containing recreational facilities and equipment for use by the guests of the Family Inn; (c) The area immediately adjacent to the Family Inn shall be designed, improved and maintained such that it is consistent with the concept of a visitor - serving facility attractive to families. (ii) The Family Inn will be constructed in accordance with the Building and Zoning Ordinances of the City of Newport Beach, including without limitation the requirements set forth in Sections III.A., B and I [as hereby amended, pursuant to Section IV, below]. (iii) The structure which houses the family Inn shall not exceed 500,000 sq. ft. of gross floor area inclusive of area used for the service, storage (except enclosed dry boat storage as provided for in (v) below) and preparation of food or beverage. (iv) The Family Inn may include restaurant uses and facilities as permitted under Section I.B., below. (v) As an interim use and pending construction of the Family Inn, Company may install up to 450 dry boat storage spaces. It is anticipated that such storage spaces will be at grade upon Parcel C or the portions of Parcel A not currently in use for the recreational vehicle park, but such spaces may be located in any appropriate location reasonably agreed to by the Parties. If the storage spaces are enclosed, the gross floor area of such enclosed structure shall not count toward Maximum Allowable Development Area. Company acknowledges the Original Agreement authorized 400 storage spaces. The additional '50 spaces referenced in this Section shall be allowed on an interim basis and shall be removed prior to the issuance of a certificate of occupancy for the Family Innis issued by the City. B. Restaurant Uses. The use and development of a total of thirty -two thousand (32,000) square feet of net public area (as defined in the City's Zoning Code as the same may be amended from time -to -time) of 10 55364.00004 \7008423.7 4 restaurant facilities upon the Property. [Certain restaurant facilities contemplated by this Amendment have been constructed as of the date of this Amendment, and other restaurant facilities contemplated by this Amendment have not been constructed as of the date of this Amendment.] Such use and development shall be included within the Maximum Allowable Development Area and may include: (i) The construction of nine thousand one hundred (9,100) square feet of net public area of restaurant uses on the east side of the lagoon including, without limitation, outdoor patio dining and bar areas (including alcoholic beverage service) and an operable windscreen surrounding the exterior of the outdoor dining and bar areas [which restaurant has been constructed as of the date of this Amendment]. The structure for such restaurant use may include in addition to the restaurant use an apartment for employee residence use, the square footage of which shall not be deducted from the maximum restaurant square footage permitted under this Section 1.6(i) but shall be included for purposes of determining the Maximum Allowable Development Area. The employee apartment shall not exceed eight hundred (800) feet of gross floor area. [which employee apartment has been constructed as of the date of this Amendment]. (ii) The construction of not more than twelve thousand five hundred (12,500) square feet of net public area of restaurant uses within and adjacent to the Family Inn [which has not been constructed as of the date of this Amendment]. (a) Any portion of such restaurant and food serving area outside of the structure which houses the Family Inn shall be limited to those areas which are intended to primarily serve guests of the Family Inn, such as the pool and cabana -area; (b) A substantial portion of restaurant space within the Family Inn shall be located, designed, maintained and operated such that it principally serves the patrons and guests of the Family Inn, with special consideration given to families with children. (iii) The construction of a new restaurant not to exceed ten thousand four hundred (10,400) square feet of net public area, which restaurant is anticipated to be located on Parcel B -2. [This restaurant has not been constructed as of the date of this Amendment.] (iv) The square footage of permitted development for restaurant uses may be reapportioned in a manner other than that specified in the preceding paragraphs provided: 55364.00004 \7008423.7 5 22 (a) The reapportionment of restaurant uses is on a "per square foot" basis such that there is no increase in net public area of permitted restaurant development on the Property; and (b) Any reapportionment of restaurant uses between the east and west side of the lagoon shall be subject to review and approval by the Community Development Director of the City of Newport Beach, and may be conditioned upon submittal of additional information or studies as required in the Community Development Director's reasonable discretion. (c) Any reapportionment of restaurant uses between or among Parcels B, B -2 and /or C shall be subject to review and approval by the Community Development Director. (d) Company may appeal the decision of the Director under either clause (b) or (c), above, as provided for in Chapter 20.84 of the Newport Beach Municipal Code, as may be amended from time to time. C. Commercial Uses. The construction of structures on the Property which will house commercial, office, storage or retail uses not to exceed twelve thousand (12,000) square feet. [Portions of such structures have been constructed as of the date of this Amendment.] The use of such .structures shall be limited to those permitted by the Lease and the City of Newport Beach Municipal Code, and may include: (i) Company headquarters, office and administrative space; (ii) Space for parking, equipment, storage, a first aid station and other ordinary and necessary uses in connection with the operation of the Property; and (iii) Meeting rooms for not more than one hundred (100) persons in the aggregate. D. RV Spaces and Facilities. The construction of a recreational vehicle park not to exceed four hundred forty -four (444) spaces, all of which will have full service capabilities, including electricity, water and sewer, together with a recreational vehicle support center. [Four hundred six (406) recreational vehicle spaces and the recreational vehicle support area described below have been constructed as of the date of this Amendment.] (i) The recreation vehicle support center shall consist of not more than eight thousand five hundred (8,500) square feet of gross floor area and may contain among other things (i) a small convenience store and 12 55364.00004 \7008423.7 6 equipment rental facility, (ii) a recreation /meeting room and clubhouse, and (iii) restrooms, showers and a laundry facility. (ii) The recreational vehicle support center shall also include a storage area and swimming pool, and may contain a maintenance facility and a manager's unit of approximately two thousand fifty (2,050) square feet and an employee unit of approximately five hundred seventy -five square feet. (iii) Company may, subject to the approval of the City's Community Development Director, install alternative recreational vehicles ( "ARV's "). Each ARV shall contain no more than four hundred (400) square feet, have at least one axle, shall be registered with the State Department of Housing and Community Development and the presence of the ARV shall be consistent with all State laws and regulations regarding recreational vehicle parks. The Community Development Director shall have the right to impose conditions on the appearance of any ARV that the Community Development Director, in his or her reasonable discretion, considers necessary or appropriate to ensure that the recreational vehicle park maintains a pleasant appearance. In no event shall company install any manufactured housing. (iv) Company shall limit all occupancy agreements for RV spaces and ARV's to no more than thirty (30) days, provided that nothing herein would preclude an owner of an RV or an occupant of an ARV to sign a new occupancy agreement after a thirty (30) day period has expired. In no event shall any agreement entered into by the Company with owners of RV's or occupants of an ARV entitle the guests to residency status or be a Qualifying Rental Agreement, as that term is defined in Municipal Code Section 3.16.020, as the same may be amended from time -to -time. (v) The ARV units are included within the total allowable four hundred forty-four (444) RV spaces. Company agrees that the City's Transient Occupancy Tax, provided for in the City's Municipal Code Chapter 3.16, as the same may be amended from time to time, shall apply to all RV spaces and ARV's, and Company shall collect and remit such tax as required by the Municipal Code. E. Boat Slias /Marina. The construction of approximately four hundred thirty (430) boat slips, a pedestrian bridge connecting the easterly and westerly portions of the property, and a pump -out station. [Approximately four hundred thirty (430) boat slips have been constructed as of the date of this Amendment in a manner consistent with the requirements listed below.] The right to construct and maintain the boat slips is subject to the following: 55364.00004 \7008423.7 7 i3 (i) Boat slips constructed in the mouth of the lagoon, or within the lagoon itself, shall not accommodate boats exceeding 28 ft. in length; (ii) Boat slips constructed in the mouth of the lagoon, or in the lagoon itself, shall be designated and constructed to ensure that there is minimal interruption of the tidal flow in and out of the lagoon; (iii) Overnight occupancy of boats moored in the mouth of the lagoon or in the lagoon is prohibited and County and /or the Company shall take all action necessary to ensure enforcement of this prohibition; (iv) The pedestrian bridge constructed across the mouth of the lagoon shall be elevated above the water surface, built on pilings, and designed to minimally restrict tidal flows in and out of the lagoon as well as permit the entry of dredging equipment (such as a removable center section). [The pedestrian bridge has been so constructed as of the date of this Amendment]; (v) A pump -out station shall be constructed and maintained at a location convenient to boaters with sufficient capacity to service any boat for which slip or mooring space is available at the Property, [which pump - out station has been so constructed as of the date of this Amendment]; and (vi) Company may charter vessels for commercial purposes from the Property subject to issuance, by City, of a marine activities permit and compliance with all City ordinances. The discretionary review and consideration of the marine activities permit may include additional environmental or other analysis. F. Marina Clubhouse and Storage. A facility of not more than nine thousand six hundred (9,600) square feet for a marina clubhouse (including, without limitation, space for marina office personnel, a television room, fitness center and club lounge) and for storage facilities, may be constructed adjacent to the boat slips. [The structure(s) authorized in this subsection have been constructed as of the date of this Amendment.] (i) The marina clubhouse shall include space for marina office personnel and recreational amenities consisting of a television room, fitness center and lounge. The fitness center within the marina club house shall be no larger than 475 square feet and all exercise equipment shall be located within the fitness center. (ii) The storage facility shall not to exceed 1 story, and may include, without limitation, lockers, laundry, vending and appurtenant facilities. 55364.00004 \7006923.7 8 2 "T (iii) Access to the marina clubhouse shall be limited to tenants of the marina, guests of tenants, invitees and Company personnel and shall be controlled by the Company. G. Temporary Enclosure(s). [Prior to the date of this Amendment, Company has from time to time installed one temporary enclosure as depicted on Exhibit C.] The Company may install one temporary enclosure as depicted on and in the location specified on Exhibit C to protect visitors and invitees from the elements and to minimize the impact of event related noise, subject to the following: (i) The total surface area covered by the temporary enclosure shall not exceed 14,000 square feet, provided however, that the 14,000 square foot limitation maybe exceeded for specified events which will be subject to review by the City and approval of a Special Event permit or such other permit as may be required by the City at the time. (ii) The temporary enclosure shall comply with all provisions of Title 15 of the Newport Beach Municipal Code as the same may be amended from time -to -time. (iii) In no event shall the temporary enclosure remain in place for more than one hundred eighty (180) days during any twelve (12) month period, provided, however, that the frame for the single temporary enclosure may remain in place throughout the year. (iv) Company may serve food and beverage in the temporary enclosure unless service is prohibited by ordinance or the conditions to the Special Event permit for the event at which food and beverage are proposed to be served. (v) Company shall not be required to obtain a Special Event permit or other permit for events to take place within the temporary enclosure, unless otherwise required as a result of the nature of such event pursuant to the Newport Beach Municipal Code. (vi) Company may pursue additional temporary enclosures through a Special Events permit pursuant to Title 11 of the City of Newport Beach Municipal Code, as may be amended from time to time; a Limited Term Permit pursuant to Title 20 of the City of Newport Beach Municipal Code, as may be amended from time to time; or other permit as required by the City of Newport Beach Municipal Code, as may be amended from time to time. III. ADDITIONAL REQUIRED FACILITIES. Section II of the Original Agreement is hereby amended and restated to read in its entirety as follows: 55364.00004 \7008423.7 9 1 ,5 II. Company shall retain, and in certain cases upgrade and /or add to, certain existing facilities and uses, as follows: A. Dry Boat Storage. The existing dry boat storage on the east side of the lagoon consisting of two hundred eighty six (286) spaces [as of the date of this Amendment) shall be maintained, and Company shall have the right to increase capacity to no more than four hundred fifty (450) spaces. The increase in capacity may be accomplished by the construction or installation of a facility that will allow stacking of boats. The storage facility will be covered and will be administered to insure adequate security for private property, provided, however, that any covered or enclosed dry boat stacking facility shall be excluded from the gross floor area of improvements upon the Property for purposes of determining whether the Maximum Allowable Development Area has been met or exceeded. B. Wash Down. Company shall retain or upgrade the wash -down facilities located in proximity to the launch ramp; C. Boat Trailer Parking. Company shall maintain at least one hundred twenty (120) boat - trailer parking spaces in proximity to the boat launch area. These spaces shall be used for vehicles and trailers using the boat launch facilities, by patrons of the restaurant and the dry boat storage facility located near the boat launch facility, and, to the extent space is needed and available, by beach users when the day -use parking area is filled. D. Beach and Day Use. County and Company shall preserve substantially all of the existing beach area and retain and assure the continuing operation of concessions and facilities which serve beachgoers, including, but not limited to, boat and equipment rentals, restrooms, facilities that provide shade and cover from the elements, tables and benches, lifeguards, and picnic areas. At least six hundred forty five (645) day use area parking spaces, in additional to parking spaces specified elsewhere in this Agreement, will be made available for persons using the facilities. No more than 25% of such parking spaces shall be designated for use by compact vehicles and compact spaces shall be distributed evenly throughout the parking area. E. Camping. Company shall provide for overnight camping uses and facilities necessary to serve recreational vehicle owners and ARV occupants. F. Human - Powered Launch. Company agrees to maintain the existing launch and storage area for human - powered and small sail craft. 10 55364.00004 \7008423.7 10 G. Bike Trail. Company has constructed, and shall maintain, a bike trail, the design, width and location of which has been approved by the City and County, connecting Back Bay Drive with Bayside Drive. No admission or user charge shall be imposed upon persons for use of trail. Bicyclists shall be allowed access to the interpretive center. Company shall maintain bike racks along the trail adequate in number to accommodate demand. The bike trail may be used by the City, County and other public entities engaged in constructing, repairing or maintaining public facilities or landscaping. The bike trail has been designed to allow convenient access for public vehicles engaged in the maintenance and repair work. IV. DEVELOPMENT RESTRICTIONS AND CONDITIONS. Section III of the Original Agreement is hereby amended and restated to read in its entirety as follows: III. Company, in consideration of the approval by the City pursuant to this Agreement of the land use entitlements and the contemplated uses and development as authorized by this Agreement, stipulates and agrees to the restrictions and conditions specified in this Section. A. Height. No structure, nor any portion of any structure or mechanical equipment, shall exceed a height of thirty -eight and one half (38.5) feet. Mechanical equipment may be permitted in excess of thirty -five (35) feet in height provided it is fully screened from public view. In addition to the height limit, no structure shall exceed three (3) stories, and the Family Inn shall be constructed with a pitched roof. Chimneys and vents are permitted to exceed the thirty -eight and one -half (38.5) foot height limit only to the extent required to comply with state law or City ordinances. B. Parking and Signage. Except as otherwise provided in this Agreement, parking for all new development upon the Property and all signs and sign structures shall conform to the requirements of Chapters 20.66 and 20.67, respectively, of the Newport Beach Municipal Code, or any successor ordinances, as in effect at the time of such new development or installation of such new signs and sign structures, as applicable. Notwithstanding the foregoing, such compliance shall not be so required where the development or the signs or sign structures otherwise complied with prior Newport Beach Municipal Code provisions in effect at the time of the development or the signs or sign structures being replaced or renovated, and compliance with such prior code satisfies the non- conforming use provisions of the Newport Beach Municipal Code. C. Traffic and Fair Share. Company shall comply with the Traffic Phasing Ordinance and Fair Share Ordinance of the City of Newport Beach. Company shall have satisfied Traffic Phasing Ordinance and Fair Share Ordinance requirements upon payment of the sums specified in this Section III.C. Consistent with the terms of the Agreement, amendments 55364.00004 \7008423.7 11 17 to the Traffic Phasing or Fair Share Ordinance enacted following the date of the Agreement which would otherwise increase the fees to be paid by County or Company shall not be applicable to the development contemplated in this Agreement. The appropriate method and time for the payment of these fees is difficult to determine in that: (1) while the early phases of development will not generate substantial level of traffic over and above those which now exist, infrastructure necessary to accommodate the Family Inn and other traffic intensive uses will be constructed during the initial phases of the project; and (2) the number of building and grading permits required for each phase of the project, and the potential that development within each phase will not proceed at the same time, make it extremely difficult for the parties to determine what percentage of Traffic Phasing or Fair Share Fees should be paid in conjunction with any specific permit. The method of payment specified in this Agreement represents the Parties' best efforts to establish a fee schedule consistent with the intent of the Fair Share Ordinance and Traffic Phasing Ordinance in effect as of the date of the Agreement. (i) Company has paid or shall pay (as set forth in clause (iii) below) $600,000 to comply with the provisions of the Traffic Phasing Ordinance. This sum was used to reimburse the City for a portion of the $2,058,000 spent prior to December 9, 1988 and an additional $724,000 spent in the 1988 -89 fiscal year, on circulation system improvements that were required, in part, because of traffic generated by the development authorized in the Agreement. Company and County have benefited by the City's early construction of these improvements which were to have been funded, in part, by the $600,000 payment required by the Agreement. (ii) Company has paid or shall pay (as set forth in clause (iii) below) Fair Share fees in the sum of $235,402. This fee is based upon "new traffic" of 5,213 average daily trips, multiplied by the rate of $99.27 a trip (as of December 9, 1988) and reduced by a credit of $282,902 for master plan circulation system improvements funded by the Traffic Phasing Ordinance payments required by the Original Agreement. (iii) As of the date of this Agreement, the sum of the Fair Share and Traffic Phasing Ordinance fees required by this Agreement as provided in clauses (i) and (ii) above has been calculated to be the sum of $835,402, of which the Company has paid $275,000 to date as reflected in clauses (a) through (d) below, and the sum of $560,402 remains to be paid as reflected in clauses (e) through (g), below, all as more particularly having been paid or to be paid as follows: (a) The sum of Twenty Five Thousand ($25,000) Dollars was paid concurrently with the execution of the Original Agreement; 55364.00004\7008423.7 12 12 (b) The sum of Seventy Five Thousand ($75,000) Dollars was paid prior to the issuance of the first building permit for any of the projects described in Phase 1 of the Original Agreement (RV Park, Day Use, Boat Launch, Boat Storage, Marine Repair Facility, Coffee Shop and Operations Center); (c) The sum of Seventy Five Thousand ($75,000) Dollars was paid prior to the issuance of the first occupancy permit for any project described in such Phase 1; (d) The sum of Five Hundred ($500) Dollars per slip has been paid prior to the issuance of the final building or harbor permit necessary to the construction of the slips (the Fair Share and Traffic Phasing fees totaling $835,402 have been calculated on the assumption that 200 new boat slips would be constructed under the Agreement; (e) The sum of Fifty Thousand ($50,000) Dollars shall be paid prior to the issuance of the first building permit for the first building permit for the construction of a restaurant on Parcel B -2 [which sum has not been paid as of the date of this Amendment]; (f) The sum of One Hundred Thousand ($100,000) Dollars shall be paid prior to the issuance of the first building permit for the Family Inn [which sum has not been paid as of the date of this Amendment]; (g) The sum of Four Hundred Ten Thousand Four Hundred Two ($410,402) Dollars shall be paid prior to the issuance of the first occupancy permit for the Family Inn [which has not been paid as of the date of this Amendment]; (h) The fees required by this Section III.C. shall by paid by Company or Company's successor(s); (i) City agrees that,'to the extent feasible, Company's traffic - related payments should be used to finance improvements to components of the City's circulation system impacted by the development authorized by this Agreement. Q) Notwithstanding any contrary provision of this Agreement, to the extent that the foregoing provisions regarding Fair Share fees and Traffic Phasing Ordinance fees are determined to be the basis for requiring the Company to comply with prevailing wage laws as to any construction upon the Property, Company may in its sole and absolute discretion waive the provisions of this Section III.0 so long as any such waiver would not result in a reduction of the Fair Share fees and the Traffic Phasing Ordinance fees which would be payable by the Company 55364.00004 \7008423.7 13 19 under the ordinances of the City of Newport Beach. If Company exercises its rights under this provision to waive the Fair Share fee formula established herein, Company shall pay the Fair Share fee in place as of the date of permit issuance with no offset for the fees previously paid under provisions of this Section III.C. Under no circumstances shall Company pay less than the $560,402 still owing to the City under this Section III.C. D. Science Center Contribution. Company has contributed $20,000 to the City to be used in the construction of the Back Bay Science Center on Shellmaker Island or the enhancement of the natural resources in the Upper Newport Bay Ecological Reserve. Educational programs offered at the Back Bay Science Center shall, to the extent feasible, be made available to Company's invitees and guests. E. Transient Occupancy Tax. Transient occupancy taxes will be imposed, collected, processed, and paid upon guests of the Family Inn and occupants of RV spaces and ARV's in accordance with the provisions of Chapter 3.16 of the Newport Beach Municipal Code, as the same may be amended from time to time. F. Tax and Permit. Company, with respect to any use of the Property which requires the payment of any tax or fee for the issuance of any permit, pursuant to the provisions of the Newport Beach Municipal Code, agrees to pay such fee or tax and /or obtain the required permit and comply with any and all conditions imposed upon the issuance of the permit. G. .Grading and Building Permits. Grading and building permits shall be issued by the City of Newport Beach, and shall be issued in accordance with and subject to all City ordinances, including, without limitation, water quality control ordinances. Grading and building permits shall contain appropriate conditions to ensure that construction activities do not adversely impact the citizens of Newport Beach, including, without limitation, designation of specified haul routes, restrictions on hours of activity and installation of erosion control facilities to ensure that silt does not enter Upper Newport Bay from grading or construction activities. H. Design and Construction. Final design and construction of any development authorized by this Agreement shall incorporate the following: (i) A lighting system designed and maintained to conceal the light source and minimize light spillage and glare outside of the Property boundaries; (ii) The incorporation of water- saving devices; 20 55364.00004\7008423.7 14 (iii) The installation of grease traps in all restaurant and food preparation facilities; (iv) Conformance with energy requirements as specified in Title 24 of the California Administrative Code; (v) Access and fire suppression systems pursuant to City ordinances; and (vi) A landscape plan that emphasizes the use of drought resistant native vegetation, irrigated with a system designed to avoid surface runoff and overwatering, with the landscaping to be installed during the initial phase of construction or as early as practicable once conflicts with other construction activities are resolved. Amplified Music. Amplified music provided in outdoor areas upon the Property shall comply with the recommendations (numbers 1 through 16) set forth in the Wieland Associates, Inc. Evaluation of Noise Levels Generated by Live Entertainment at the Newport Dunes Resort, Newport Beach, dated April 24, 2002 (Revised May 15, 2002 (the "Wieland Study ")), a copy of which is attached hereto as Exhibit "B ". V. PROHIBITED USES. The following uses of the Property shall not be permitted: A. Skateboard parks or courses; B. Fireworks displays except when all required governmental permits and approvals are obtained; C. Any land use that is not expressly permitted on the Property pursuant to the City's General Plan, Municipal Code or this Agreement; D. Except in conjunction with outdoor amplified music as otherwise provided in Section 111.1. of the Agreement, the use of loudspeakers for paging or announcements outside of any structure provided, however, lifeguards may use equipment for safety and beach control purposes; and E. Except as otherwise provided in Section 111.1. of the Agreement, outdoor amplified music. No provision of this Section V.E. shall be deemed to prohibit amplified music within the Family Inn, the restaurant(s) on the Property, meeting rooms or other structures, provided all requirements of the City's Municipal Code are met. VI. MUNICIPAL SERVICES. Section IV of the Original Agreement is hereby amended and restated to read in its entirety as follows: 21 55364.00004 \7008423.7 15 IV. City shall provide a level of municipal services to Newport Dunes that is consistent with that provided other similarly situated properties in the City including, but not limited to, water, fire and police services. VII. PROCEDURES. Section VI of the Original Agreement is hereby amended and restated to read in its entirety as follows: VI. County shall not allow, and Company shall not construct, any development on the Property exceeding that contemplated by this Amendment, without first securing all required permits and approvals from the City of Newport Beach. Any plan for future development, not contemplated by this Amendment, must be accompanied by adequate environmental documentation as required by law, and shall be processed as required by the resolutions and ordinances of the City of Newport Beach. IX. PUBLIC AGENCY APPROVAL. A. The first sentence of Section VII of the Original Agreement is hereby modified to read in its entirety as follows: The Parties acknowledge that the approval of the California Coastal Commission and the State Lands Commission may be required for development of the Property, and County and Company covenant that, in requesting any required approval, they will seek no development in excess of that specifically authorized by this Agreement. B. The third sentence of Section VII of the Original Agreement is hereby modified to read in its entirety as follows: To the extent that the California Coastal Commission and /or State Lands Commission impose requirements upon County and Company not set forth in, or at variance with, the provisions of this Agreement, County and City agree to consider acceptance and incorporation of same as amendments to this Agreement all said changes and /or variances, so long as said changes and/or variances do not expand or increase the concentration, intensity, density or type of the development as contemplated by this Agreement. C. The notice addresses set forth in Section VII of the Original Agreement for the County and for the Company are hereby amended to be: TO COUNTY: County of Orange OC Community Resources Orange County Parks 13042 Old Irvine Boulevard Irvine, California 92602 22 55364.00004 \7008423.7 16 TO COMPANY: Newport Dunes Marina, LLC 5150 Overland Avenue Culver City, CA 90230 Attention: Warren L. Breslow AND: Waterfront Resort Properties, L.P. 9431 Sunset Boulevard Beverly Hills, CA 90210 -3406 Attention: Herbert M. Gelfand X. SETTLEMENT PAYMENT. The Parties agree and acknowledge that this Amendment is a compromise and settlement of disputed claims, or potentially disputed claims, and that the furnishing of the consideration for this Amendment shall not be deemed or construed as an admission of liability. In full and final satisfaction of any claims or potential claims, perceived, actual, or otherwise, the Parties agree Company shall pay to City the sum of Thirty Thousand Dollars ($30,000) ( "Settlement Amount "). The Settlement Amount includes, but is not limited to, the costs incurred by the City as a result of the potential claims. XI. WILLFUL DEFAULT. In the event of material and willful default with respect to any term, covenant or promise of the Agreement by Company relating to either the Maximum Allowable Developable Area or the requirement for the obtaining of permits with respect to development upon the Property, which material and willful default continues beyond the cure period set forth in Section XII, below, in addition to the remedy of Specific Performance set forth in Section VIII of the Agreement, City may elect to impose either or both of the following remedies: A. Company shall pay to City upon demand a fine in the sum of Ten Thousand Dollars ($10,000) per occurrence; and B. If such material and willful default continues for an additional period of One Hundred Eighty (180) days following the imposition by the City of the fine set forth in clause A, above, City may require Company to apply for and diligently pursue a Development Agreement (Cal. Government Code section 65864, et seq.), or other appropriate entitlement mutually determined by the City and the Company, for all remaining development or uses contemplated by the Agreement not then completed upon the Property. XII. NOTICE OF RIGHT TO CURE. Failure of either party to observe or perform any term, obligation or provision or Company's failure to comply with the development obligations and limitations herein or to obtain all required permits prior to commencing an activity or event requiring said permit, shall constitute a default or material breach of the Agreement. The non - defaulting party shall provide the defaulting party written notice of the alleged default. The defaulting party shall have 30 days to cure, or if cure 23 55364..00004 \7008423.7 17 cannot be obtained within 30 days, shall commence and diligently pursue said cure within such 30 day period. XIII. AFFIRMATION. Except as otherwise expressly amended by this Amendment, the terms and provisions of the Original Agreement shall remain in full force and effect. [Signatures on following page] 55364.00004 \7008423.7 18 24 Executed the day and year first above written. APPROVED AS TO FORM: 0 Aaron C. Harp City Attorney for the City of Newport Beach ATTEST: By: Leilani I. Brown, City Clerk COMPANY: Newport Dunes Marina LLC, a California limited liability company, By: WLB Group GP LLC to Warren Breslow, Manager COUNTY: CITY OF NEWPORT BEACH, A Municipal Corporation By: David Kiff City Manager for the City of Newport Beach WATERFRONT RESORT PROPERTIES L.P., a California limited liability company Formerly known as Tahoe Shores, Ltd. By: De Anza Corporation, A California corporation, Its general partners Herbert M. Gelfand Chairman of the Board Signed and certified that a copy of this COUNTY OF ORANGE document has been delivered to the Chair of the Board per G.C. Sec 25103, Reso 0 ATTEST: Darlene Bloom Clerk of the Board of Supervisors Orange County, California Chair, Board of Supervisors 215 55364.00004 \7008423.7 19 Attachments: Exhibit A - Property Exhibit B — Wieland Study Exhibit C — Temporary Enclosure 20 55364.00004 \7008423.7 20 Newport Dunes MViPOMi � - -� Parking lOVel � W 9eyade �r -M I pee on 9 �r e Future Restaurant Site ( Parcel B-2) Marina Clubhouse l I Family Inn Site (Parcel C) RV Park Back Ba, sacncc center Boat Storage Back Coney t Bay Island Bistro Boat Launch Pedeshfan Bridge Beat Trailer Interim Parking Dry Boat Storage Parking M X 7 Hyeff rtegency Newport Beech D RV Support Baywew Landing Center Senior Apartments Back Bay View Park 0 925n U H M U 0 C/1 C/] • U Apri l 24, 2002 (Revised May 15, 2002) Mr. Timothy Quinn Newport Dunes 1131 Back Bay Drive Newport Beach, CA 92660 Project File 360 -02 Subject: Evaluation of Noise Levels Generated by Live Entertainment at the Newport Dunes Resort, Newport Beach Dear Mr. Quinn: At the request of the City of Newport Beach, the Newport Dunes Resort has applied for a use permit to address its live entertainment events. As part of the permit process, the City has requested that an acoustical study be provided. This report has been prepared in response to the City's request. Accordingly, the following sections will discuss the applicable noise standards, provide a description of the live entertainment events, and provide our findings and recommendations. City of Newport Beach Noise Standards With respect to controlling noise intrusion from the live entertainment events, the City of Newport Beach has two sets of standards: Chapter 10.26 "Community Noise Control ", and Chapter 10.32 "Sound- Amplifying Equipment. " Each is briefly discussed in the following sections. Chapter 10.26 The City's noise ordinance standards (Chapter 10.26) state that the allowable average exterior noise level experienced in a residential area as a result of activities at the Newport Dunes shall not exceed 55 dB(A) for any 15- minute period during the daytime hours of 7:00 a.m. to 10:00 p.m. During the nighttime hours of 10:00 p.m. to 7:00 a.m. the standard is 50 dB(A). The maximum instantaneous noise level that is permitted is during the daytime or 70 dB(A) during the nighttime. If the ambient t noise noise level exceeds these standards, then the ambient shall be the standard. W% Chapter 10.32 Wieland Associates, Inc. Acoustical Consultants With regard to the use of sound - amplifying equipment, Section 10.32.060, 27276 South Pointe Drive Paragraph D states that "The volume of sound shall be controlled so that it will Suite 114 not be audible for a distance in excess of one hundred (100) feet from the Laguna Hills, CA 9265] sound - amplifying equipment or sound truck, and so that the volume is not Tel: 9491829 -6722 Fax: 949/829 -6670 www.wielandassocrom M NEWPORT DUNES Pmject File 360 -02 unreasonably loud, raucous, jarring, disturbing or a nuisance to persons within the range of allowed audibility." It should be noted that the Chapter 10.32 standards are qualitative, or subjective, in nature. That is, there is no quantifiable limit on the amount of noise that can be generated by the equipment, only that it can't be heard more than 100' from the equipment. Newport Dunes Events The Newport Dunes provides two types of events that are of concern in this study. These are the Pavilion/Gazebo events and tent events. Each is described in the following sections. Pavilion/Gazebo Events The Newport Dunes has` four pavilions and one gazebo along its beaches at which outdoor parties with live entertainment occur. These parties can occur on any day of the week, generally between the hours of 12:00 p.m. to 4:00 p.m. and the hours of 5:00 p.m. to 10:00 p.m. Parties can occur at all four pavilions and the gazebo simultaneously. Each performing artist or DJ provides histher own instruments, amplifiers and speakers. To reduce noise levels at the homes in the Dover Shores community, the Newport Dunes requires that all speakers be oriented away from the bay, and guards periodically check • the noise levels with sound level meters. U Tent Events The tent is a temporary structure that is erected in the boat trailer parking lot for visiting groups and local social events. It remains there for a 4 -month period during the winter, and for a 2 -month period during the summer. As with the pavilion events, each group J--� renting the tent hires its own band or DJ. The Newport Dunes provides no audio systems inside the tent; therefore, each band or DJ must provide their own equipment. Since the • r•,1 tent events are private, the hours vary considerably, but rarely extend past 12:00 a.m. V Typical audience sizes number around 250 -400 people. ONoise Measurements To identify typical noise levels that are generated by live entertainment at the outdoor venues and the tent, the Newport Dunes hired a DJ, steel drum band and a rock band to participate in demonstration tests on the evening of April 4, 2002. These tests were conducted inside the tent and at Pavilion A. At both locations, the DJ and bands were VJ asked to play typical selections at a normal volume for a period of at least ten minutes. �L1 Inside the tent, a Larson Davis Model 2800 real -time analyzer was positioned at a distance of 20 feet directly in front of the DJ or band. At Pavilion A, the DJ and band v� were located under the canopies, with their instruments and speakers oriented towards Q� Pacific Coast Highway. To assess the noise levels that are directed towards the Dover • �"•1 Shores community, the analyzer was positioned at the edge of the pavilion's concrete pad in the direction of the homes. During the tests two additional sound level meters were �9 NEWPORT DUNES Project File 360-02 positioned at nearby residential areas to document the noise levels that propagated from the Newport Dunes. These positions were staffed by trained personnel to assess the audibility of the demonstration tests. The results of the noise level measurements at the Newport Dunes are summarized as follows: drum band Inside the Tent, 20' in Front .5 At Pavilion A. to the Side of the Act Note that the sound levels measured in the tent and at the pavilion have been weighted Uusing both the C -scale and the more common A -scale. The C -scale ensures that the low- frequency sound energy produced by the bass instruments is properly addressed in this study. Since the A -scale significantly minimizes low- frequency noise in its calculation of an overall noise level, the C -scale represents a more restrictive criteria. Cn Figures 1 and 2 provide graphic representations of the average and maximum noise levels measured inside the tent, respectively. Referring to the figures, it is noted that the rock band produced significantly more low- frequency noise than either the DJ or the steel `V drum band. . r..4 U As indicated previously, noise measurements were also obtained at two locations in the O surrounding residential community. These locations are identified in Figure 3, and the C/) results of our measurements are provided in Appendix I. In general, the average noise level (I-eq) in the surrounding community varied from 45 to 51 dB(A), depending on the measurement location and its proximity to the nearby streets. However, at neither of these locations was the music from the DJ, steel drum band, or rock band audible or measurable above the ambient when played at the tent or at Pavilion A. �l We were unable to gain access to the Sea Island community during the noise measurements to assess the music's audibility. This community is located at about the same distance from the tent as is the measurement position in the mobile home park on Mayflower Drive. Since the music was not audible at the mobile home park, which is in r--1 the propagation path of the music, it may be reasonably concluded that the music would not be audible within Sea Island. Pavilion A is about 1/3 closer to Sea Island than it is to the measurement position in the mobile home park. Thus, the music level could be 3 to 4 so r 120 W 11 v d 80 L d V 60 � o 0 40 t on • 'v 3 i c J 20 rol Average Sound Level 20' in Front of Source I 10 100 1,000 10,000 One -Third Octave Band Center Frequency, Hz Steel Drum Band Rock Band] Figuic I. �2 120 i i 100 I d 80 i� 60 c 0 40 � L 20 i 0 Maximum Sound Level 20' in Front of Source 10 100 1,000 One -Third Octave Band Center Frequency, Hz +� Steel Drum Band Rock Band rieure 2. 10,000 i I i I 0 m .'. °It`t' t/ Ne @ J� ` ��` '�L 3 °d �' •��'c / ' BRFJT q ♦f���fyryypOl ♦ a1• Wi l T�a�� /<,. 1. ♦ t' S N Ip d/" 7'± ' �•v„9ei .y,." -A� l_.. �� A•;� i5 ^. �6 ���• 4j'r�,� � i ?�L•''lyy�. /e `4'yI 1`--� ~ -. /+�: w � � .. i���: i�� ae 1'�4 .•S�J r' qi Y��p����t+` v..�• I� lA ST... �(��f „r ;_ ra_m' 4 i/ yF}�''A � � L.. Y t, .'7 ��'�• .t � �. •( (.sky / .'"5+'.,�,.�` 1(�3/�'b EYTtlRT a•in J , ' `„�tq ✓ 'k; � v sil N L '� m ' 'g �'P�• -•k r�,yy 'qt r ypf�iyr �Y t ;vu. � Lo•„ �: J Li„ ��J xl�.fj i _ =-✓��. •' g�3�.' � � •,�• •1e:: �• a Ef .i 't =3 i.8 �� .Y(/akl- -" .( y� ail dr,"�4 �. \ ' � `bi• � � }_r,,,�A' i f,:YY •y•yr4�`•i�0u'36 yisso 7ud. L ` �" . °' �yL' �?nc 'erg :.� �... 5mQ � � • n y k'. ,�'��: � . ,fT:;VLt;�vr.,�r.i"fa.4 f -:q`�� .J� jf �'_M� S:•u. �� ♦�c _.�.. � .,,,.,rs to �4�'p.fi eld�l°`. A ;vp ��y "��j'j,����tt°,�f:1:":�.'" _ 4f,'•.��•: �� ' ye ' !�- Qc Pei{ - !S • .Po< �i• ' /J +. \� � . Ir_ —° i�'� £, 5^ -I ` vYU '� 4N1r A� ' Rp l Ja "9r�� f, yfSF � t a C. 4rr("3rejr. � u� 'r '. @"+• �7Y q . QO ' " "-8'�,! ,q" . it t� Fi,,. ,a `fLSP. e � d. __ av9 •. .k: s'''•iYV� �,hir9Z 'Q OR I LlL0rb0 d ••.. i Sy,is a l ,'Ja ."``�� � CJ44 �d`•p ?mss �b �j" .b � l�^� yej 4.� ♦ rs S�F', ��.t. Ti r f�, AR ,� w 1, t 9 -,. �Ytiti ,•. g •gyp , _— � ^• u y���_ -((5..r !�a • :f ae �ars • ,.'`n- V, /�: ,,n>� xpAmCf mw�o ry "rt.ma`�M'f4 .I.Gf N r 3I t r1'`:;11 �. C IY 4v1 i ,2 •,, , aN + i rs�. S' �' °` i Iwo ,..E EVT I WIELAND Noise Mea remem Loca ions 3 ASSOCIATES, INC. 6 33 U H� . r..i U C/1 d•-1 Q� NEW PORT DUNES Project File 36002 dB higher in Sea Island than in the mobile home park. However, this does not necessarily mean that the noise will be audible within Sea Island, which is exposed to significantly higher ambient noise as a result of traffic on Jamboree Road. Based on the measurements obtained so far at Newport Dunes, there is insufficient data on which to formulate a conclusion regarding the audibility within Sea Island of music at the pavilions. Recommendations 1. The sound level generated at a position 20' in front of a live entertainment act should not exceed an average (Leq) of 95 dB(C) or a maximum of 102 dB(C). However, in the event that more than one act is performing at a time, the sound level standard should be reduced as follows for each act: Number of Acts Performing Simultaneously 0 Average Noise Level (Leq) Standard for Each Act . Maximum Noise Level Standard for Each Act' 2. The Newport Dunes should rent or purchase a calibrated integrating sound level meter capable of measuring, displaying and storing 1- minute L.eq's using the C- weighting scale. 3. The Newport Dunes should assign one person to be responsible for calibrating and operating the sound level meter, setting it up at the various venues, advising the act(s) on measured levels, downloading the data at the end of the event, and providing the Newport Dunes with a report summarizing the measured data. 4. During the sound check, the Newport Dunes' staff should be responsible for assisting the performing artist or DJ in establishing amplifier and mixer board settings that will achieve the sound level standards. 5. Sound checks should be closely monitored and kept to a minimum. 6. The Newport Dunes should book performers whom they feel are acoustically appropriate for the facility and the community, based on their previous experience. Guests should not be permitted to hire their own acts. 7. The Newport Dunes should attempt to employ the same acts throughout the season to ensure consistency. 8. The live entertainment acts should be required to orient their speakers and amplifiers towards Pacific Coast Highway and parallel to Jamboree Road. 1 Leq: Equivalent (or average) sound level. NEWPORT DUNES Project Fie 760-02 9. Portable barriers should be placed around the back and sides of the speakers and band equipment as needed to control the direction of the sound away from residential communities. These barriers may be constructed of 1/2" -thick plywood or Plexiglas, or may be formed from acoustical blankets that provide a minimum sound transmission class (STC) rating of 20. 10. Future contracts with performing artists or DJs should identify the Newport Dunes as a noise - sensitive venue. All performers should be made aware of the unique surroundings, the need to eliminate unnecessary sounds during sound checks, and the need to control the volume during the performance. 11. The contracts should clearly identify the sound level standards identified in Item 1 above. 12. The contracts should clearly state that the Newport Dunes staff or agents reserve the right to adjust the amplifier and mixer board settings during an event, or to stop the event entirely, as needed to respond to community complaints or to an exceedance of the sound level standards. 13. The Newport Dunes should designate a contact person with a portable phone who will be responsible for responding to community complaints regarding noise impacts. The contact person should be on site throughout each event. V14. If a complaint is received during an event, the Newport Dunes' contact person should take whatever reasonable steps are necessary to resolve the complaint. These steps may include ordering that the mixer board and/or amplifier settings be lowered, or stopping the event. 15. In the event noise complaints are received, a member of the Newport Dunes' staff should travel to the complainant's location to understand the nature of the disturbance. (� 16. In general, the live entertainment should not be permitted to extend past 10:00 p.m. • �--i However, on occasion it may be permitted to extend to 11:30 p.m. on Fridays, (� Saturdays and holidays with the approval of the City's Planning Director on a case- by-case basis. rl v� r 35 NEWPORT DUNES Project File 360 -02 We appreciate the opportunity to provide you with this report. If you have any questions, please feel free to call us at 949/829 -6722. Sincerely, C,a d 7LW i e I 7an Principal Consultant U H a� 4J U O t� c�3 r—+ 4� VJ APPENDIXI Noise Measurements U U ct U O ct i Table 1. Noise Survey Project: Newport Dunes Position: On vacant lot between 322 and 324 Mayflower Date: April 4, 2002 Time: Noted Noise Source: Traffic Distance: 6' from 6' high block wall SLM Height: 5' LD 712 SIN: 0556 LD CAL 150 n* Calibrator SIN: 2206 Operator: Jonathan L. Higginson O V.V 75.0 70.0 9 65.0 a 60.0 s d 55.0 M Z 50.0 45.0 40.0 Symbol: ♦ ■ A i 0 20 40 60 80 100 ! Source: Percent of Time Noise Level is Exceeded ' Leq is the average sound level during the measurement period. Ln is the sound level exceeded n% of the time during the measurement period. Lmax and Lmin are the maximum and minimum sound levels during the measurement period. WIELAND ASSOCIATES, INC. M00 Measurement Period F TPM7: PM o PM to n* Ln Ln Ln 2 56.0 52.1 8 53.4 50.8 25 51.4 49.0 50 49.5 47.6 90 99 Leg 51.1 48.2 Lmax 68.8 59.5 Lmin 43.8 41.4 Symbol: ♦ ■ A i 0 20 40 60 80 100 ! Source: Percent of Time Noise Level is Exceeded ' Leq is the average sound level during the measurement period. Ln is the sound level exceeded n% of the time during the measurement period. Lmax and Lmin are the maximum and minimum sound levels during the measurement period. WIELAND ASSOCIATES, INC. M00 Table Z. Noise Survey Project: Newport Dunes Position: On Polaris sidewalk on opposite side of street from Polaris Park Date: April 4, 2002 Time: Noted Noise Source: Traffic n Distance: Varies SLM Height: 5' LD 712 SIN: 0555 LD CAL150 n* Calibrator SIN: 2206 Operator: Roberta R. Wieland b V.0 75.0 70.0 m 9 65.0 ------------------------ ` ----- i60.0 -----`-----`--- -- .� y55.0 ----- ` ----- ` ----- - ----- ;- ----- �o � z 50.0 ------------------ 45.0 40.0 0 20 40 60 80 100 Percent of Time Noise Level is Exceeded Symbol: Source: * Leq is the average sound level during the measurement period. Ln is the sound level exceeded n% of the time during the measurement period. Lmax and Lmin are the maximum and minimum sound levels during the measurement period. WIELAND ASSOCIATES, INC. S9 Measurement Period 5:54 PM to 8:25 PM to to n* Ln Ln Ln 2 49.2 8 47.6 25 46.1 50 44.3 90 99 Leq 45.0 Lmax 59.8 Lmin 38.0 Symbol: Source: * Leq is the average sound level during the measurement period. Ln is the sound level exceeded n% of the time during the measurement period. Lmax and Lmin are the maximum and minimum sound levels during the measurement period. WIELAND ASSOCIATES, INC. S9 Exhibit C fr I S , Terboorary Eoc,losure 11 A., City Council Attachment CC2 Newport Dunes Map 41 42 Back Bay Science Center Newport Dunes Future Restaurant Site (Parcel B -2) Boat Storage Back Coney Bay Marina Clubhouse I island Bistro _. epTFRONT - BoatLaunch 1 'PRINCETON Pedestrian Bridge FOGA— . e Parking Boat TnwN�1j Wy Interim Trailer Parking N — ` RTY_ — _, -.- Dry Boat Bayside -- _ Storage Hyatt Regency Village --- MHP Newport Beach Family Inn ;ION OIR Site GE YyP� (Parcel C) Swimming cf:� ( „✓ - �o Lagoon Parking Qo Ape y"„1. P Off, Z �P A7L AR RV Support Bayview Landing - 9sr Center Senior Apartments RV Park 9 /I F Back Bay 4 S -- View Park or 0 925ft MP,moratlC9Llm "PEOM°ED ply AGFiVDA 7 1 1�., _ . CITY OF NEWPORT BEACH COMMUNITY DEVELOPMENT DEPARTMENT 3300 NEWPORT BOULEVARD, BLDG. C NEWPORT BEACH, CA 92658 -8915 (949) 644 -3226 To: Honorable Mayor and Members of the City Council From: Kimberly Brandt, AICP, Community Development Director Date: July 10, 2012 Re: Agenda Item No. 15 - Second Amendment to the Amended Newport Dunes Settlement Agreement The proposed Second Amendment to the Amended Newport Dunes Settlement Agreement (Attachment CC 1 of the staff report) refers to the prior agreements. Therefore, for purposes of providing background information, copies of the 1988 "Amended Newport Dunes Settlement Agreement' and the 1990 "First Amendment to Amended Newport Dunes Settlement Agreement' are attached. Please note that the proposed Second Amendment amends and restates Sections I -IV, and VI and modifies Section VII of the First Amendment, while Sections V and Sections VIII through XI are unchanged. Also, Section IV.B of the proposed Second Amendment contains references chapters of the prior Zoning Code and needs to be corrected to reference chapters of the current Zoning Code: B. Parking and Signage. Except as otherwise provided in this Agreement, parking for all new development upon the Property and all signs and sign structures shall conform to the requirements of Chapters 20.6040 and 20.0742, respectively, of the Newport Beach Municipal Code, or any successor ordinances, as in effect at the time of such new development or installation of such new signs and sign structures, as applicable. Notwithstanding the foregoing, such compliance shall not be so required where the development or the signs or sign structures otherwise complied with prior Newport Beach Municipal Code provisions in effect at the time of the development or the signs or sign structures being replaced or renovated, and compliance with such prior code satisfies the non - conforming use provisions of the Newport Beach Municipal Code. y E L AMENDED NEWPORT MES SETTLEMENT AGREEMENT THIS AGREEMENT, entered into this Z-�—"ciay of 1988, by and between THE CITY OF NEWPORT BEACH, a Municipal / Corporation and Charter City, hereinafter referred to as "City,,, THE COUNTY OF ORANGE, a Political Subdivisiozz of the State of California, hereinafter "County," and NEWPORT DUNES PARTNERSHIP, a i California Partnership, hereinafter "Company," is made with reference to the following facts, the materiality and existence of which is stipulated by and between the parties hereto: A. Pursuant to the provisions of Chapter 526 of the California State Statutes of 1919, the State of California granted certain tidelands to County. These tidelands were regranted by the State to the County, pursuant to the provisions of Chapter 415 of the Statutes of 1975. The legislature imposed certain conditions and restrictions on the use of the granted property. The tidelands referred to in these two grants, together with a small parcel of uplands, are described in Exhibit "A" to this Agreement, and are hereinafter referred to as "the Property "; B. Newport Dunes, Inc., formerly a California corporation (NDI) has, in the past, constructed certain recreational and visitor - serving facilities on the property, including the following: 1 (1) acres, together fast food stands (2) camping area, wi electricity and utilities; A beach, consisting of approximately ten (lo) with concessions to serve beachgoers, such as, and businesses which rent beach equipment; A recreational vehicle and travel trailer th 64 spaces fully serviced by sewer, water and 80 spaces which are partially served by such (3) A restaurant known as Anthony's Pier II located on the northwesterly edge of the swimming lagoon and consisting of approximately 7,500 sq. ft. of public area, and a coffee shop, consisting of approximately 2,000 sq. ft. of public area and located on the easterly side of the lagoon in the area of the current boat - launching facilities; (4) Boat and marina - related facilities consisting of approximately 230 slips, a boat repair business, a canvas shop, maintenance storage and dry boat storage area with room for approximately 350 boats and a six -lane boat launching ramp; (5) A structure, located near Anthony's Pier II, consisting of approximately 1,500 sq. ft. which presently serves as the headquarters and equipment yard for Company. C. Commencing in 1976, County and NDI embarked on a process designed to redevelop the property by enlarging or improving existing facilities and constructing new facilities. This process culminated in 1980, with the approval, in concept, of a redevelopment plan for the property which called for the construction of: 2 (1) A motel or family inn; (2) Meeting rooms with a seating capacity for 400 persons; (3) Additional restaurants, coffee shops and snack bars, at least one of which would seat 150 persons; (4) 263 additional boat slips; (5) A "marina village1, consisting of approximately 50,000 sq. ft, of commercial and retail development with approximately 20,000 sq. ft, of facilities described as marina amenities; (6) A modern recreational vehicle park; and (7) Other development to support the primary uses. iD. The City instituted litigation challenging the County's approval of the redevelopment plan for the property. In 1983, the parties resolved this litigation through a settlement agreement which reduced the size and scope of certain components of the project and obligated County and NDI to comply with provisions of the Building and Zoning Codes of the City. E. NDI has assigned its rights, duties and obligations under the leases and original Settlement Agreement to Company. F. The Orange County Harbor, Beaches and Parks District, which was a party to the original Settlement Agreement, has been dissolved, with County of Orange designated as successor agency, therefore, District is not a necessary or appropriate party to this amended Agreement. 3 0 G. The parties to the original settlement agreement have determined that unanticipated delays in constructing the project, a desire to construct a revised project, and changes in the circumstances surrounding the project require execution of an amended settlement agreement. NOW, THEREFORE, the parties hereto agree as follows: 1. City, in consideration of the covenants and promises made by County and Company in this agreement agrees to approve the development of the property contemplated in this agreement, (conceptually illustrated on Exhibit "B, ,,) provided County and Company have complied with all conditions precedent to development that are specified in this agreement. The development contemplated in this agreement may proceed in phases as deemed appropriate by Company. The development of the property authorized by this agreement is as follows: A. The construction of a family inn, not to exceed 275 rooms, to be located on the west side of the swimming lagoon subject to the following: 1. The family inn will be designed and constructed with features that will make it attractive to families and these design and construction features shall include, but not necessarily be limited to, the following: (a) Kitchen facilities in approximately forty percent (40$) of the units; (b) A room containing recreational facilities and equipment for use by the guests of the inn; 9 ® 0 (c) No permanent audio /visual facilities or equipment are to be integrated into the design. 2. The area immediately adjacent to the family inn shall be designed, improved and maintained such that it is consistent with the concept of a visitor - serving facility attractive to families. 3. The family inn will be constructed in accordance with the Building and Zoning Ordinances of the City of Newport Beach, all as more fully described in paragraph III -A. 4. The structure which houses the family inn shall not exceed 500,000 sq.ft. of gross floor area (per City standards) inclusive of area used for the service, storage and preparation of food or beverage. B. The construction of a new restaurant on the site Previously occupied by Anthony's Pier II, and the construction of restaurant and food serving areas within, or adjacent to, the family inn, subject to the following: 1. Restaurant area within; and adjacent to, the family inn, shall be limited to 12,500 sq.ft. of net public area (per City standards); 2. The restaurant to be constructed on the site formerly occupied by Anthony's Pier II shall be limited to 15,000 sq.ft. of net public area (per City standards). 3. Restaurant and food serving area outside of the structure which houses the family inn shall be limited to WE Ii those areas which are intended to primarily serve guests of the inn, such as the pool and cabana -area; 4. A substantial portion of restaurant space i within the family inn shall be located, designed, maintained and operated such that it principally serves the patrons and guests of the family inn, with special consideration given to families with children; and 5. The permitted development for restaurant uses may be reapportioned in a manner other than that specified in the preceding paragraphs provided: (a) The reapportionment is on a per square foot basis such that there is no increase in permitted restaurant development; (b) The reapportionment has been reviewed and approved by the County's Director of Harbors, Beaches and Parks /EMA and the Planning Director of the City of Newport Beach; and (c) The reapportionment does not result in a transfer of restaurant development to the east side of the swimming lagoon. C. The construction of a structure or structures which will house commercial, office or retail tenants, subject to the following: 1. The size of new structure or structures shall not exceed a total of 5,000 sq. ft. of gross floor area (per City standards); R 2. The tenancy shall be limited to those activities permitted by the lease and with County and Company and which are consistent with the tidelands grants businesses listed on Exhibit "C" to this Agreement. D. The construction of a structure or structures to replace the existing marine repair facility and coffee shop on the east side of the swimming lagoon subject to the following: 1. The structure shall not exceed a total of 7,500 sq. ft, of gross floor area (per City standards); and 2. Approximately 3,000 sq. ft. of the structure shall be utilized as a marine repair facility, with the remaining portion of the structure or structures to be used as a coffee shop and retail uses which support the needs of those using the boat launch or boat storage areas. E. The construction of a meeting room with a seating capacity not to exceed 100 persons to be located on the west side of the swimming lagoon. F. The construction of a structure which will serve as the headquarters for Company, subject to the following: 1. The size of the structure shall not exceed 7,000 sq. ft.; 2. The structure will contain approximately 6,200 sq. ft. of space devoted to office and administrative uses, with the remaining space within the structure to be devoted to parking of equipment, a first aid station and the storage of materials. 7 G. The construction of a recreational vehicle park not to exceed 444 spaces, all of which will have full service capabilities, including electricity, water and sewer, together with a recreational vehicle support center, the center to contain a small convenience store and an equipment rental area (approximately 3,500 sq.ft. of gross floor area), an equipment rental area, recreation /meeting room and clubhouse (approximately 2,900 feet of gross floor area), restrooms, showers and a laundry facility (approximately 2,100 feet of gross floor area), a storage area and swimming pool. H. The construction of approximately 200 boat slips, a pedestrian bridge connecting the easterly and westerly Portions of the property, and a pump -out station, subject to the following: 1. mouth of the lagoon, designated represents and approved a water the construction of swimming lagoon; No boat slips shall be constructed in the or in the lagoon itself, until such time as hives of the city and County have reviewed quality study which considers the effects of boat slips on the water quality in the 2. Boat slips constructed in the mouth of the lagoon, or within the lagoon itself, shall not accommodate boats exceeding 28 ft. in length; 3. Boat slips constructed in the mouth of the lagoon, or in the lagoon itself, shall be designed and constructed L to ensure that there is minimal interruption of the tidal flow in and out of the lagoon; 4- Overnight occupancy of boats moored in the mouth of the lagoon, or in the lagoon itself, is prohibited and County and /or Company shall take all action necessary to ensure enforcement of that prohibition; 5. The pedestrian bridge which is to be constructed across the mouth of the swimming lagoon will be elevated above the water surface, built on pilings, and designed to minimally restrict tidal flows in and out of the lagoon and Permits the entry of dredging equipment (such as removable center section); 6. A pumpout station shall be constructed at a location convenient to boaters with a sufficient capacity to service any boat for which slip or mooring space is available on the property; and 7. Company may charter vessels for commercial purposes from a location on the west side of the swimming lagoon subject to issuance, by City, of a commercial harbor activities permit and compliance with all City ordinances. II. Company shall retain, and in certain cases upgrade and /or add to, certain existing facilities and uses, as follows: A. The existing dry boat storage capacity may be increased to no more than 400 units. During the first phase of construction, all dry boat storage shall be at surface level. If additional spaces are to be provided, the increase may be 0 accomplished by the construction or installation of a facility that will allow stacking of small boats. The storage facility will be covered and will be administered in a manner that will insure adequate security of private property; B. Company shall restripe the existing six -lane launch ramp to at least seven 15' lanes, and retain, or upgrade, the washdown facilities located in proximity to the launch ramp; C. Company shall provide at least 185 boat- trailer parking spaces in proximity to the boat launch area. These spaces shall be used for vehicles and trailers using the boat launch facilities, and by patrons of the marine service building and dry boat storage facility, and.to extent space is needed and available by beach users when day -use parking area is filled. D. County and Company shall preserve substantially all of the existing beach area and retain and assure the continuing operation of concessions and facilities which serve beachgoers, including, but not limited to, boat and equipment rentals, fast food stands, lifeguards, and picnic area. At least 645 day use area parking spaces, in addition to parking spaces specified elsewhere in this Agreement, will be made available for persons using the facilities. No more than 25% of the parking spaces shall be designated for use by compact vehicles and compact spaces shall be distributed evenly throughout the parking area. E. Company shall provide for overnight camping use and all related facilities in the recreational vehicle park areas. 10 III. Company, in consideration of the commitment of City to approve the contemplated development as generally described in this Agreement, stipulates and agrees as follows: A. Company agrees to design and construct all new development in accordance with the applicable Building and Zoning Ordinances of the City of Newport Beach and, specifically, agree to construct new development in conformance with the following; 1. No structure, nor any portion of the structure, shall exceed a height of 38.5 feet. Mechanical equipment may be permitted in excess of the basic 35 foot height limit provided the equipment does not exceed a height of 38.5 feet and is fully screened from public view. No structure shall exceed three (3) stories and the family inn shall be constructed with a pitched roof. Chimneys and vents are permitted to exceed the height limit specified in this paragraph only to the extent required to comply with state law or local ordinances; 2. Except as otherwise provided in this agreement, parking for all new development will be in conformance with the parking standards of the City of Newport Beach as set forth in Chapter 20.30 of the Newport Beach Municipal Code; and 3. All signs and sign structures shall conform to the provisions of Chapter 20.06 of the Newport Beach Municipal Code. B. Company shall comply with the Traffic Phasing Ordinance and Fair Share Ordinance of the City of Newport Beach. Company shall have satisfied Traffic Phasing and Fair Share 11 requirements upon payment of the sums specified in this section. Amendments to the Traffic Phasing or Fair share Ordinance wY,ich would otherwise increase the fees to be paid by County or Company shall not be applicable to the development contemplated in this agreement. The appropriate method and time for the payment of these fees has been difficult to determine in that: (1) while the early phases of development will not generate substantial levels of .traffic over and above those which now exist, infrastructure necessary to accommodate the family inn and other traffic intensive uses will be constructed during the initial phases of the project; and (2) the number of building and grading permits required for each phase of the project, and the potential that development within each phase will not proceed at the same time, make it extremely difficult for the parties to determine what percentage of Traffic Phasing or Fair Share Fees should be paid in conjunction with any specific permit. The method of payment specified in this Agreement represents the parties best efforts to establish a fee schedule consistent with the intent of the Fair Share and Traffic Phasing Ordinances. 1. Company shall pay $600,000 to comply with the provisions of the Traffic Phasing Ordinance. This sum will be used to reimburse the City for a portion of the $2,058,000 spent to date, and the additional $724,000 to be spent in the 1988 -89 fiscal year, on circulation system improvements which were required, in part, because of traffic generated by this project. Company and County have benefitted by the City's early 12 construction of these improvements which were to have been funded, in part, by the $600,000 payment required by the original agreement. 2. Company shall pay Fair Share fees in the sum of $235,402. This fee is based upon "new traffic" of 5,213 average daily trips, multiplied by the current rate of $99.27 a trip and reduced by a credit of $282,902 for master plan circulation system improvements funded by the Traffic Phasing ordinance payments required by this Agreement. 3. The Fair Share and Traffic Phasing Ordinance fees required by this Agreement shall be paid as follows: a) The sum of Twenty Five Thousand ($25,000) Dollars concurrent with the execution of this Agreement; The sum of Seventy Five Thousand ($75,000) Dollars prior to the issuance of the first building permit for any of the projects described in Phased (RV Park, Day Use, Boat Launch, Boat Storage, Marine Repair Facility, Coffee shop and Operations center); C) The sum of Seventy Five Thousand ($75,000) Dollars prior to the issuance of the first occupancy permit for any project described in Phase 1; d) The sum of Five Hundred ($500) Dollars per slip to be paid prior to the issuance of the final building or harbor permit necessary to the construction of the slips (the Fair Share and Traffic Phasing fees totalling $835,402 13 U have been calculated on the assumption that 200 new boat slips will be constructed. In the event less than 200 boat slips are constructed, the Traffic Phasing and Fair Share fees required by this Agreement shall be reduced by a sum equal to the difference between the 200 slips predicted and the actual number constructed multiplied by $Soo.) e) The sum of Fifty Thousand ;,;30,000) Dollars prior to the issuance of the first building permit for the first building permit for the construction of a restaurant on the site formerly occupied by Anthony�s Pier II; f) The sum of One Hundred Thousand ($100,000) Dollars prior to the issuance of the first building permit for the family inn; g) The sum of Four Hundred Ten Thousand Four Hundred Two ($410,402) Dollars prior to the issuance of the first occupancy permit for the family inn. 4. The fees required by the preceding paragraph shall be paid by Company or by Company's sublessee. 5. The County, City and Company will meet and confer on the specific circulation system improvements to be financed by Company's payment of the Fair Share and Traffic Phasing fees required by this Agreement, to the extent funds i remain after consideration of improvements previously made by City. The parties acknowledge that, to the extent possible, Company's payments should be used to finance improvements to those 14 components of the City's circulation system most heavily impacted by the development authorized in this Agreement. C. Company shall construct an interpretive center,- to be located near the northeast corner of the property. The j function of the interpretive center shall be the provision of information and educational materials relative to the Upper Newport Bay Ecological Reserve. Educational programs offered by the interpretive center shall be coordinated with the Department of Fish and Game and the interpretive center shall be integrated into a trail system, approved by the Department of Fish and Game, that will allow interested persons access to portions of Upper Newport Bay. D. Company agrees to construct a launching area for human - powered and small sail craft and this launch area shall be of sufficient size to accommodate, at a minimum, the current use of the area for the launching of small sail boats and human - powered craft by members of non - profit organizations such as the Boy Scouts, Girl Scouts or similar organizations. E. company shall construct a bike trail, the design, width and location of which is subject to the approval by the County's Director of Harbors, Beaches and Parks /EMA and the City Engineer, connecting Back Bay Drive with Bayside Drive, No admission or user charge shall be imposed upon persons for use of trail. Bicyclists shall be allowed access to the interpretive center. Company shall install bike racks along the trail adequate in number to accommodate demand. The bike trail may be is used by the City, County and other public entities engaged in constructing, repairing or maintaining public facilities or landscaping. The bike trail. shall be designed to allow convenient access for public vehicles engaged in the maintenance and repair work. F. Transient occupancy taxes will be imposed upon users of the family inn and recreational vehicle park in accordance with the provisions of Chapter 3.16 of the Newport Beach Municipal Code. Transient occupancy taxes will be collected, processed, and paid in accordance with the provisions of Chapter 3.16 of the Newport Beach Municipal Code. G. Company, with respect to any use of the property which requires the payment of any tax or fee, for the issuance of any permit, pursuant to the provisions of Title 5 of the Newport Beach Municipal Code, agrees to pay such fee or tax and /or obtain the required permit and comply with any and all conditions imposed upon the issuance of the permit; H. The following uses of the property shall not be permitted: 1. Skateboard courses; 2. Fireworks displays except as approved by the City Council of Newport Beach; 3. Small animal or reptile zoo; 4. The use of loudspeakers for paging or announcements outside of any structure provided, however, 16 lifeguards may use such equipment for safety and beach control purposes; and 5. Amplified music, except in the family inn or other structure, and in no event shall amplified music provided by Company, its lessees, licensees or operators of the property, exceed 55 dbs when measured at a point 50 ft, distant from any exterior wall. I. Grading and building permits shall be issued by the city of Newport Beach and may contain appropriate conditions to ensure that construction activities do not adversely impact the i citizens of Newport Beach. such conditions may include, but are not necessarily limited to, the following: I. Designation of specified haul routes; 2. Restrictions on hours of activity; and 3. Installation of erosion control facilities to ensure that silt does not enter the Bay from the construction site. J. Final design of the project shall incorporate the following: 1. A lighting system designed and maintained to conceal the light source and minimize light spillage and glare offsite; 2. The incorporation of water - saving devices; 3. The installation of grease traps in all restaurant facilities; 17 4. Conformance with energy requirements as specified in Title 24 of the California Administrative Code; 5. Access and fire suppression systems in accordance with the requirements of the Fire Department of the City of Newport Beach; and 6. A landscape plan which emphasizes the use of drought resistant native vegetation, irrigated with a system designed to avoid surface runoff or overwatering, with the landscaping to be installed during the initial phase of construction or as early as practicable once conflicts with other construction activities are resolved. IV. City agrees to provide a level of services to Newport Dunes appropriate to the uses developed on the site and consistent with that provided other properties in the City, including, but not limited to, water, fire and police. V. The promises and commitments of the parties as set forth herein, are intended to bind the parties now and in the future. ' The parties understand that this Agreement is similar to a Joint Powers Agreement, and, as such, contains commitments of both City and County sufficient to bind future boards and councils, notwithstanding any change in the composition thereof. City and County hereby expressly waive and give up any right to challenge the validity of this Agreement, or any specific term or condition hereof,. based upon the contention that the legislative bodies of cities or counties are not empowered to bind future boards or councils, and each of the parties hereto stipulates that is i the consideration set forth in this Agreement is adequate to support this waiver. VI. County shall not allow, and Company shall not construct, any development on the property exceeding that contemplated by this Agreement, without the concurrence of the City Council of the City of Newport Beach. Any plan for future development, not contemplated by this Agreement, must be accompanied by adequate environmental documentation as required by law, and will be processed through the Planning Commission and City Council of the City of Newport Beach in accordance with the provisions of Chapter 20.80 of the Newport Beach Municipal Code. VII. The parties hereto recognize that the approval of the California Coastal Commission and the State Lands Commission, will be required for development of the property, and County and Company covenant that, in requesting such approval, they will seek no development in excess of that contemplated herein. City upon request by County or Company agrees to notify, in writing, all agencies which are required to approve the development contemplated in this Agreement of its support and City will endeavor to appear at public hearings before any Board or Commission reviewing a proposal for such development or any portion thereof, to express its support for the project. To the extent that the California Coastal Commission and /or State Lands Commission impose requirements upon County and Company not set forth in, or at variance with, the provisions of this Agreement, County and City agree to accept and incorporate as amendments to 19 this Agreement all said changes and /or variances, so long as said changes and /or variances do not expand or increase the concentration, intensity, density Or type of the development as contemplated by this Agreement. All parties understand that this Agreement is intended to establish the limits of development and not to guarantee construction or development. County and Company shall endeavor to notify City of any public hearing or meeting which may relate to the development contemplated by this Agreement at least ten (lo) days prior to the date of such meeting or hearing. Notice shall be given as provided in this Agreement. To City: City Attorney City of Newport Beach 3300 Newport Boulevard _ Newport Beach, CA 92663 To County: Director, Harbors, Beaches and Parks /Orange County Environmental Management Agency P.O. Box 4048 Santa Ana, CA 92702 To Company: Newport Dunes Partnership c/o David Cherashore 998 West Mission Bay Drive San Diego, CA 92109 VIII. This Agreement is in furtherance of a plan for redevelopment of the property. County and Company seek to transform underused portions of the property to their economic advantage by constructing visitor - serving facilities Of greater intensity than now exist. City seeks to obtain certain offsite benefits, including, among others, circulation system improvements. All parties agree and recognize that it will not be practical to restore this property to its previous state once any 20 significant portion of the contemplated development is undertaken. The parties hereto have made significant and irrevocable commitments and have each given up certain rights and powers in order to achieve this agreement, The parties agree that damages would not be an adequate remedy for the failure of one of the parties to carry out its obligations under this Agreement, both because the property and this Agreement are unique, and because it would be very difficult to estimate the amount of damages which could, or would, properly compensate the other parties in the event of such failure or breach. Thus, the parties agree that specific performance, rather than damages, is the only remedy which would adequately compensate the other parties in the event of the failure of one party to comply with its duties and obligations as set forth in this Agreement. IX. In the event Company fails to comply with its obligations pursuant to this agreement, County shall have the right to perform and shall be entitled to the rights and benefits confered thereby. X. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns. XI. No modification, amendment or other change in this Agreement or any provision thereof shall be affected for any purpose unless specifically set forth in writing and signed by a 21 duly authorized representative of the parties hereto. Executed the day and year first above Written. ATTEST: Cjty Clerk APP ED AS TO FORM: ity Attorney CITY By: ✓ ���CY j �Q/� Mayor City of Newport Beach 22 1 e r] APPROVED AS To FORM: County Counsel-_ !i- r i-/t v r D COUNTY OF ORANGE By,✓ The Chairman of its Board of Supervisors SIGNED AND CERT01:0, THAT A COPY OF THIS DOCUMENT HAS BEEN O= LIVEfiED TO THE CHAIR -NIAN OF THE boARD. L' QA D. ROOERTS DEC 13 1988 Clerk of the603rd.of Sueniisors COMPANY County of Orange, Califsrnia NEWPORT DUNES PARTNERSHIP A California Partnership By*.- D i Thor h 23 d i .v..JP F!.P CfGAL c ^Cly c= rQ /OT /O•y pc G.r^ifn'LE CCCa /rY HA,rB :JR v /S7 pFF.-C =`S .C�=A.o /i:GS eiv.�r /✓�CES An: <. fc'�ht C,s'F._ /AL '°o a Soo foeo 6AA PpryC c 16A LOT N®- 2 / / 5$C 26 e5 I fi l.2 >'k ice. f y_�c�,wrY r d r b /GB r,{O�uO /cq iEO G�'piNARy \� Nr6H TIDE !IN£� SC4�LR /OA COC�Rr CF ORANGE COUNTY, fREE h17. ,20436 J %/d 2 nom_ r R4EpG /NG / •vrENY L /NE .f vN.NCrry � i' Fp IZ IW i TP a 2/� f\ r v / 1Z W Y \� a i Jft:)EG e'Y c'rA:5 t �— !c. EXHIL9 IT A FEE. 7,1 °s8 EA, H, 1I D NEWPORT DUNES LAND USE PLAN I FAMILY INN a) 275 rooms, 35 ft. height limit b) 2 meeting rooms -100 person occupancy II RECREATIONAL VEHICLE PARK a) 444 existing spaces, upgraded to full hookups b) 20 reserved for late arrivals C) RV Support Center 1) grocery, propane, RV accessories, beach gear, camping equipment 2) showers, laundry 3) swimming pool, children's pool 4) group picnic areas III CAMPGROUND a) day use b) overnight IV DA a) b) c) d) e) f) USE swimming beach boat rentals picnics, beach games parking snack bars lifeguards V HEADQUARTERS /OPE.RATIONS CENTER a) 4,000 sq. ft. existing b) 1,500 sq. £t. new (relocate San Diego computer facility) c) operations, accounting, lifeguard headquarters, equipment storage, first aid, security VI MARINA a) 100 slips additional b) water quality study c) pedestrian bridge on pilings d) boat holding tank pump out station e) dredging program VII DRY BOAT STORAGE a) b) C) d) f) g) h) 400 units stacked, covered storage 24 hour security launch ramp -six lanes marine repair holding tank pump out gas dock wash rack EXHIBIT 2 VIII MARINA BUSINESS a) 14,000 sq. ft. existing b) 10,000 sq. ft. new IX INTERPRETIVE CENTER a) history and ecology b) consistent with DFG program c) human powered craft opportunities d) coordinated with bicycle /hiking trails X BIKE TRAIL a) connecting Back Bay to Bayside b) no charge for pass through EVANS RESORTS a) operated Newport Dunes for over ten years b) local owner /operation of new facility, including Family Inn c) Bahia Resort, Mission Bay, San Diego d) Catamaran, Mission Bay, San Diego 3133fui J B v * 0 (Dace 3 of V Proposed Marine Business /Commercial Use The Purpose of the Marine Business /Commercial use is to provide facilities needed by the public as permitted by the State Tidelands Grant and Lease Agreements with the County of Orange. The Newport Dunes will maintain and operate a retail shopping complex and adequately provide the following services and facilities: I. Ships Channelry and facilities for other appropriate marine oriented merchandising and services businesses such as equipment, supplies and marine service station. 2. An enclosed building space for appropriate general merchandising and services businesses such as marine /recreation clothing, renting, instruction and beach equipment. The preceding list of potential uses is intended to identify the types of marine - oriented services which may occupy facilities at the Newport Dunes. The business types are listed to identify typical uses and is not meant to include all potential uses. The actual tenants will be marine - oriented services which will serve both Newport Dunes customers and boating enthusiasts. ENAHIBIT PC A � County of Orange ENVIRONMENTAL MANAGEMENT AGENCY HARBORS, BEACHES AND PARKS ERP4IE SCHNEIDER DIRECTOR, EMA ROBERT G. FISHER DIRECTOR OF HARBORS, BEACHES 6 PARKS LOCATION '2 CIVIC -,ENTER PLAZA SANTA ANA. CALIFORNIA MAILING AOORESS' P.O. BOX 4068 SANTA ANA, CA 92702 -4048 TELEPHONE: (714) 8343262 JAN 7- 9 +389 FAx x: 835 7425 Mr. Robert H. Burnham FILE City Attorney, Newport Beach P.O. Box 1768 - Newport Beach, CA 92658 -8915 Subject: Revised Se ement Agreement Dear Mr. ,$u a . i 1 On DecembeR 13, 1988 the Board of Supervisors approved an amended Settlement Agreement which provides for redevelopment of the Newport Dunes in accordance with the County /City approved site plan. A copy of the final executed document, with original signatures, is enclosed for your records. I am pleased to transmit this document as one of the final elements which will allow the redevelopment to go forward. Please contact Ken Scattergood in HBP at 834-3034 should you need any additional information on this item. DR:sh(01- 74)9013 Enclosure cc: Christie McDaniel Very truly yours, Robert G. Fisher, Director, HBP CIiY�ii@��D JgN2 3 fV 1989 NpORT 6 �_ 'AuF �" FIRST AMENDMENT TO AMENDED NEWPORT DUNES SETTLEMENT AGREEMENT This First Amendment to Amended Newport Dunes Settlement Agreement ( "First Amendment ") is made as of December /g, 1990 by and between THE CITY OF'NEWPORT BEACH, a Municipal Corporation and - Charter City, hereinafter referred to as "City ", THE COUNTY OF ORANGE, a Political Subdivision of the State of California, hereinafter "County ", and NEWPORT DUNES PARTNERSHIP, a California partnership, hereinafter "Company ", who agree as follows: 1. This First Amendment is executed in contemplation of the following facts and circumstances: (a) City, County and Company are parties to that certain Amended Newport Dunes Settlement Agreement, dated December 9, 1988 ( "Settlement Agreement "). s (b) It is the intent of City, County and Company to ; amend and modify certain of the provisions and conditions of the Settlement Agreement; it is the express intention of City, .County and Company that except as expressly amended or modified by the provisions and conditions of this First Amendment, the Settlement Agreement shall remain in full force and effect. (c) The capitalized terms used in this First Amendment shall -have the sameF meaning -as is -otherwise ascribed thereto in the -.... Settlement Agreement. 2. Paragraph I.H is modified to include with the improvements so described a marina club house and storage building, together with appurtenant facilities, constructed in accordance with the requirements of g paragraph H.8 of the Settlement Agreement. 0 I 3. Paragraph I.H of the Settlement Agreement is hereby amended and modified by adding the following• provisions and conditions thereto as paragraph 8: 8. A marina club house and storage building and appurtenant MI facilities shall be constructed upon the Property. The gross floor area of the office and amenity uses shall not exceed 6,000 square feet and the gross floor area of the storage uses shall not exceed 3,200 square feet. The fitness room within the marina club house shall be no larger than the size shown on the approved Conceptual Plans (approximately 475 square feet) and all exercise equipment shall be located within the fitness room. The marina club house shall contain no more than two stories and the storage building shall be limited to one story. The marina club house shall be constructed at or below the northerly prolongation of the sight line drawn from a point five feet above Pacific Coast Highway (along the section shown on the revised schematic site plan) to the top of the north side of the proposed Family Inn. The marina club house and storage building shall be available only to tenants of the marina upon the ..Property -and their guests and access shall be controlled by Company. In the ------ event _the_- Ci:ty,. finds - evidence that the - marina club house and /or storage building are being used by other than tenants of the marina and that additional vehicular traffic is being generated thereby, the City will so advise the County and the County shall as part of its . lease administration -2- responsibilities correct the situation to ensure that the traffic impacts do not occur. ` The marina club house and storage building and appurtenant facilities shall substantially conform to approved Conceptual Plans on file with the County and City and the architectural theme of the marina 'club house and storage building and appurtenant facilities shall be consistent with the mediterranea_n style of existing Phase I improvements on the Property. The pool, courtyard and related areas appurtenant to the marina club house shall be sized, designed and landscaped in substantial conformance with the "preliminary landscape technical plan" on file with the City and County and all landscaping shall be maintained at a height of at least five feet below the highest point of the marina club house. Marina tenants and users shall be prohibited, and their leases shall so provide, from undertaking and otherwise pursuing commercial activities within the marina club house and storage building including boat charters. However, the limitation on charter activities shall not prohibit charters of up to and iincluding six passengers. The marina club house shall include space €or marina office Personnel and three distinct recreational amenity areas. The amenity areas include a television room, fitness center and club lounge. The storage building shall consist of large lockers, laundry facilities, vending machines and the storage area for marina maintenance equipment_" -3- I 3. !:xcept as expressly amended or modified by the provisions and conditions of this First Amendment, the Settle!nent Agreement shall and oes remain in full force and effect. CITY J Mayor v AamFSm- yvNPO6- ty of Newport Be:,ch TO FORM: APPRO >4 TO FORM: County COL •.sel N: \2 \2529 \33220 \: ;jTpr. COUNTY QA ORANGE PM By. The Chairman of it:: Board of Supervisors SIGP,,'.EDA' %VCEF.i777',-:4 TACOFYOF TM DCA I :`EP i H = ". : l,�tnc TO L!YD:: i .:. Clerk c�, the ftv- V�Lff QI : COMPANY NEWPORT DUNES PARTNER;;, :p, a Califis partner? .� By: ✓ - G Anne L. Evans -ej_ . BOARD OF SUPERVISORS _ ORANGE COUNTY, CALIFORNIA FIRST AMENDMENT TO AMENDED NEWPOF NEWPORT DUNES PARTNERS FOR DEVELC El December 18, 1990 Envi mental Management Agency requests approval of an amendment to an agreement for development of a marina center. MOTION: On motion by Supervisor Roth, seconded by Supervisor Vasquez, the Board authorized execution of the First Amendment to the agreement with Newport Dunes Partners. MOTION UNANIMOUSLY CARRIED. �V� Brown, Leilani From: David Cane [dcane @linkline.com] "RECEIVED AFTER AGENDA Sent: Monday, July 09, 2012 1:04 PM PUNTER` is To: Dept - City Council; Brown, Leilani Cc: sbaker @keystonepacific.com Subject: Dover Shores Community Association; Request to postpone matter on July 10, 2012 Council Agenda Attachments: 7 -9 -12 Dover Shores LT Leilani Brown, City Clerk @ City of Newport Beach Re Second Amendment to the Amended Newport Dunes Settlement Agreement.pdf Dear Ms. Brown and Members of the City Council, For the reasons explained in the attached letter, the Dover Shores Community Association respectfully requests that discussion and decision on the proposed amendments to the Newport Dunes Settlement Agreement presently on the Agenda for tomorrow's Council meeting be postponed to a future date. Thank you David E. Cane, Esq. Cane, Walker & Harkins LLP 17821 E. 17th Street Suite 140 Tustin, CA 92780 (714) 573 -8990 (714) 573 -8999 (Fax) Email: dcaneCa?linkline.com Confidentiality Note: This email message, and any documents accompanying it may contain information which is confidential and /or legally privileged. The information is intended only for the use of the individual or entity named on this email. If you are not the intended recipient you are hereby notified that any disclosure, copying, distribution, or the taking of any action in reliance on the contents of this email information is strictly prohibited and the documents should be returned to Cane, Walker & Harkins immediately. In this regard, if you have received this email in error, please notify us by return email or by telephone immediately, delete the email and all attachments and destroy all hard copies of same. Thank you for your cooperation. i i a III oil Bradley D. Walker 17821 East Seventeenth Street bwalker@linkline.com David E. Cane Suite 140 deane@linkline.com James C. Harkins, N Tustin, CA 92780 iharkins@iinkline.com Telephone (714) 573 -5990 Facsimile (714) 573 -8999 July 9, 2012 File 30392 -001 Members of the Newport Beach City Council c/o Leilani I. Brown, City Clerk 3300 Newport Boulevard Newport Beach, CA 92663 Re: Dover Shores Community Association Subject: SECOND AMENDMENT TO THE AMENDED NEWPORT DUNES SETTLEMENT AGREEMENT AMONG THE CITE' OF NEWPORT ]BEACH, COUNT' OF ORANGE, WATERFRONT RESORT PROPERTIES L.P., AND NEWPORT DUNES MARINA, LLC, LOCATED AT 1131 BACK BAY (DRIVE (PA2012 -080) Dear Members of the Newport Beach City Council: Our office serves as legal counsel to the Dover Shores Community Association (the "Association"), The above referenced matter is on the Council's Agenda for tomorrow, July 10, 2012. The matter is item number 15 under the heading "XVII. Current Business." I am writing on the Association's behalf to request that discussion and decision on this matter be postponed to a future date. By letter received atthe Association's management company on July 3, 2012, the Association was notified that the matter would be on tomorrow's Agenda. The letter was forwarded to the Association's President by the Association's management company. The letter advises that any questions and/or requests for information and documents should be directed to Mr. Patrick Alford. Mr. Alford was not in the office this past Friday and the Association is advised that he will not be returning until tomorrow. Newport Dunes is located across the bay from Dover Shores, The amendments proposed to the Settlement Agreement, particularly the amendment concerning the allowable location of charter vessels, may significantly impact Association residents. Given that the letter advising that this matter is on the Agenda for tomorrow was not received until the day before the Independence Day holiday, and given Mr. Alford's absence, the Association is respectfully requesting that any Council discussion and/or decision on this matter be postponed to a future Council meeting to afford the Members of the Newport Beach City Council July 9, 2012 Page 2 Association, the members of its elected Board of Directors, and its residents sufficient time within which to have their questions answered and to evaluate the information and documentation received. Very truly �� . i „ems" , i �• � cif cc: Board of Directors Dover Shores Community Members of the Newport Beach City Council (Via Email) 4 16- 1-10-12- r% ffies Affected the by � Dunes Sounds 0 Id ova u u `C \f%�u0 %.r 'V u %.Ra 0 a \ _ ra / • f. v ° 7 J ` s l..� ' e . � r�7\\\a ��i l��i:y/ti' + , x0 fi�'�,d . i% J � n � . "� j b � i , ��� C7 .JOti cr ' r_ �y r ^�, o af6`� /o any.° r'�' ' /f� 6 + /' ���� _.• { 1 J' A � f' � v °� n 7 ! I /�'�{/�� t 4,1 �> � a�'i�. "•J 1 i�'r J �`', 9 � / / { � C� i \li '� / a~/ �� \� —�,1 �/� FDY�D /�a `�:: )� i � � (.\ ��, °��lt. �� /_ •x\1,...'7 �Yi� Oe ii.. }f! 4� ice. �''>� �'...? ' r- �'���...�.� :,+ _ 4/ //� ��v l��Ir • �''r � E'*m «\� ^� � Jrl��l; ;fy i - !111 f°• � l �• � ..�o'G �,ii�'� °e �� U� -N- ff. If. AIN Uf� � i h oO �(:��•t> �q� /� „ �\ z Y 1 `ec= ✓r/k�/F4a �-\,!• • s 4 �. (t � ✓ �, "�, ". +- Df1, °.; � „a r� CS''' .[T��j]J.c -- _ `'\```'."4,�„y1 i:Z �\_ , y;•_ t2_ ✓: -%� -' - .+` D fir.. +'�("u�Y •d 'L7- \ - •t.Y�. -� a lL a,'r " \�:li'�. - . •,',. o O , •a v� ` • v J 1' J\ _ab. c 'y \ v'!.> -r Om a- 4 C/ r r � ��� _ _ - /.�\''��v�✓'b° r° 4 ° °. • :3 7u�� \g� .��,. *\���� {�F o f � i� -� "`'j r`p'�i.� 1/> .IA-- t!'21 -`* 'S .c, ��.v...� -,. •.,_ ,S .�.,. rt �t_•, i�% / s r f ''�s6," � �'�: r S' i _, f : ; 9 �1 `°, � •p i - -�, �� ° 1 i�y ' ,._ � � ®ol�.�—� 1.' •'.` r 6.. -\�if� el —�.� Jl l ♦ � (sp,, �L f �t11 : (�_ � I��l' ^g� • \ �✓ .14+1.1 1�� _ ®a ®l - -. •-v ����sl�t` -1 /f }, ��/ N � ®1� � � Lc�- 1T A^��I • ,/ a �, .i/ �r�- � �1. "a' •�.. ,�!i ❑{[ {'I ® �. O ® � At � A OU'D �1 1 4 f �'?\UUl>,� `+ J� ' �Y�'',.i'�� "� b ti��� per f'Y�L�ri i �� ��® '• w.'I �tl � �... '�� � ' /'� L 4�5��9� ,Y' -�%.%� �. \, f' p i 1 \ / Y) L_�_. t o .-ri / ,.a t L1 ('.' J 1p _ �� d_� . / ^ «. ..`'R rc /�♦,' {l�.i cif (I-.� 1'4 y' �1 �, p f {. H _ \ l ;±i � �11�u��� .,� �� aG''•o + a} °'>'r yL l?.' ^7� e°�h /�' I' �r -ew 81v ? �® `1 � �J. F � J.� ,��Y; :,,� 5� ,�� F.` oYt:, !i � _� 1 +Y In \ -hq� {�� �.r _- �V:ri J;. _ °il[`•1�'1 -17 �.7hCS�= .f'L _ �y �a- �•' JKf.: �t 2"7y)J1�� - 1� ,.�,r� Cs�� ��ry�� ��,, -�, ! /,� t ' "i'ir a ❑) � `_ ill��, >� /� 1 � � � � �', h �r ilr,n 422 - �'""�- r-s1 -aTL`%- ��`i\'. ! ,i. f°.t j' � � ✓ } S "�� �i'` n p SFr t`/ �•.JrY \'' `; - k�� \li^. � \ is it \ - �v.'` �` - -+;�v- �t+ I� i +'C'd'r \/ �'�, / `a 4 O . �i! '! 1� I f.°' aif ,: U �. A 1j ��?' e� i ,�C, a �� �O �a +( ' +s ,�e) - . �r ._�: `��f'A`r- i A/ -• h,U� >� Y � -< / V �'' � �•�. �/- VV � �� r� .�� S 'v� ��f � '1 �i7 .�'� ,•� �y1\• ' // {.7a f�\_ "..., (� !/-' n '�%i 'I11��-r`\ ;..y I. .i��" �Y Y �'�\ 1y !J � "� _� � � 1 � `�1�_ R' I Q q� :T �� •i : V �.'g4 i .tai ^'� Ii FYV . `,:4; Yj i' \ 0 O ' `ae�rJ''i�.�4`. ° '. : ��'� u�c nr _. t'� "'�.' -` {� ���. � ^' �� l3" � �' ; e :�'�l.'s !�•. + - . +'.�/ ° � / u ac � �?�' � �� v� : `� r` ='; ?"• '!i � � �.e. -t L't'�_�"�1. r, ! -i �� •�` ��,1r '� i r:., rra�.��! �C.- �. .,�� - Y+U - �., ;/ -�° (r. ', �s ��� °.r'��:1 � �.. 'd.%sii -� Ci ��� `i � m�, -•q�. �y �, .� �_i..t�C+r '�J.g,Ftr�ry�., e'" .o: {�-?ir /%/ - 'l, /���: ', `t.. i �� !11 .. ��. tri�� �'�"�" 'y�:.V.J i 1 f� • - . �_'ti� �� ��r'�w' .� ,J ���� -•r /� /�� '4`tt ° 1' - n.� '.��.i4.r� 0 � v o -• �ln, s��% -.r 0�� al" '�' 1 `� `hs� . �- a �`� / .- r .+ -'Gkt. P 'VI ��.•"e. �� '=+✓, ,A_ �!. R[ _ 7 p'!L.. +:"�� +,{ +F'rvv •�. i'i�.'�,.,t'4 I i. A... J� ; '?"b�uyC' { / VLi-YV =_.:� - d. ✓.i1� -„J ! yf 7 .y"r.'i' .i '� /... �i /.� '.�' r`."-- �.- .E:._..- .��,� •1+rr.�'`�` r'1�w ir!i �, c _ V • .. - l:i^�. �a�i..� _ /� x U.�'�i- .(,7 4� - r--'.w `c:, _f,N4 _ '�'\ �.� :1 ��. ,ti'�'- �.`�'r'.'" ---- - __�'^� � '.1C Sound Source Newporter bound Source club Mouse Sound Reflection from bowl +ca n.,,., r.�1..�k1x. -- ,gin- .- r.�,.s„�� • ..�. _ Sound Travels on the Water Strange Sound Reported in San Diego Residents from Chula Vista to Oceanside reported a large rumble around 12:45 p.m. Friday. o- y����•-. -fir f ��,-�� • _. ��� ...., =v. _ - BLS - Sound Travels on the Water Strange Sound Reported in San Diego Residents from Chula Vista to Oceanside reported a large rumble around 12:45 p.m. Friday. a City Council July 10, 2012 Newport Dunes Settlement Agreement tTiFlr.TiiiT�► - • • iO 1'TM: Establishes max. floor area limit (567,000 sf) Allows transfer of restaurant floor area Transfers 4,600 sf to Back Bay Bistro Lifts restriction on location of charter boats Allows 50 interim dry boat storage spaces Reduces launch ramps from 7 t 6 Reduces boat trailers space from 185 t0120 Allows "ARVs" (cottages) in RV spaces Newport Dunes - - Parking Baysde Village MHP r rr ^ "` ,ry P �P Back Bay Science Center Future Restaurant Boat Site (Parcel B-2) Storage Back Coney E Bay Marina Clubhouse island Bistro Boat Launch Pedeanlan Bridge Boat Trailer Interim Parking �— Dry Boat Storage Family Inn Site (Parcel C) y shy RV Park Hyatt Regency Newport Beach H�a Swlnndng 2 Lagoon Parking r' F� H5 H5}G N RV Support BeyHew Landng Center SenlorApartments 9 9� Back Bay Yew Park ox 0 925ft a • ,a —�= �aW �rrices (949) 650-1181 P,1 RECEIVED Law Offices of Robert C. Hawkins ZQCZ Jul- 10 PM 4. 24 110 Newport Center Drive, Suite 200 Newport Beach, California 92660 r P' F (949) 650 -5550 Fax: (949) 650 -1181 Ci FAX C4 %VEI2 SFIEET °`�'�" `4�°`D rlta TRANSNIITTED TO: Pr NAME FAX NUMBER PHONE NUMBER 1 Leilani Brown, City Clerk (949) 644 -3039 From: Robert C. Hawkins ClienUMatter: Firm Date: July 10, 2012 Documents: Comments on Agenda Items Nos. 15 and 19 Pages: 4* COMMENTS: Original will follow as indicated. The information contained In this facsimile message is Information protected by attorney - client and/or the anorneyAvork product privilege. It Is intended only for theme of the individual named above and the privileges are not waived by virtue of this having been sent byfacsimile. If the person actually receiving this facsimile or any other reader ofthe facsimue is not the named recipient or the employee or agent responsible to deliver it to the named recipient, any use, dissemination, distribution, or copying of the communication is strictly prohibited. Ifyou have received this communication in error, please immediately notes us by telephone and return the original message to us at the above address via U.S. Postal Service. * NOT COUNTING COVER SHEET, IF YOU DO NOT RECEIVE ALL PAGES, PLEASE TELEPHONE US IMMEDIATELY AT (949) 650 -5550. It -'-2 o;l- -- 11 "4WKics_Law uffices (949) 650 -1181 p,4 LAW OFFICES OF ROBERT C. HAWnNS My 10, 2012 Via Facsimile . Nancy Gardner, Mayor Members of the City Council City of Newport Beach 3300 Newport Blvd, Newport Beach, California 92663 10 Dear Honorable Mayor and Members of the City Council: Thank you for the opportunity to comment to comment on the captioned matter, This firm represents Friends of Dolores and others in the City in connection with the captioned matter. As you know, the Environmental Impact Report C'EIR ") for the captioned Newport Dunes Project dates back to the early 1980s. The captioned Settlement Agreement which arose due to a challenge to the EIR was entered into in 1983. The Settlement Agreement did not resolve the environmental issues relating to the Project's EIR, Further, this analysis is dated and requires substantial environmental review and analysis, The proposed Project is not exempt under the California Environmental Quality Act, Public Resources Code sections 21000 et seq. for several reasons. First, an EIR constitutes the heart of CEQA: An EIR is the primary environmental document which: ". , serves as a public disclosure document explaining the effects of the proposed project on the environment, alternatives to the project, and ways to minimize adverse effects and to increase beneficial effects." CEQA Guidelines section 15149(b). See California Public Resources Code section 21003(b) (requiring that the document must disclose impacts and mitigation so that the document will be meaningful and useful to the public and decisionmakers.) Further, CEQA Guidelines section 15151 sets forth the adequacy standards for an EIR: "An EIR should be prepared with a sufficient degree of analysis to provide decision - makers with information which enables them to make a decision which takes account of the environmental consequences. An evaluation of the environmental effects of a proposed project need not be exhaustive, but sufficiency of an EIR is to be reviewed in the light of what is reasonably feasible. Disagreement among experts does not make an EIRinadequate, 110 Newport Center Drive, Suite 200 Newport Beach, California 92660 (949) 650.5550 Fax: (949) 650.1181 The Hon: Mayor Oardner Members of the City Council - --min5 Law Utfices -2� (9491 650 -1181 p.5 July 10, 2012 but the EIR should summarize the main points of disagreement among the experts. The courts have looked not for perfection but for adequacy, completeness, and a good faith attempt at full disclosure." Further, "the EIR must contain facts and analysis, not just the agency's bare conclusions or opinions." Concerned Citizens of Costa Mesa. Inc. v. 32nd District AprigiAtural Association (1986) 42 Cal. 3d 929. Here, neither of the EIRs relied on by the City provide any useful information: they are both old. The 1980 EIR for the Project is woefully dated and admittedly deficient as indicated by the CEQA challenge and resulting Settlement Agreement. Also, the City's General Plan EIR is also dated: it is over six years old. The traffic analysis dates back to 2002. She Banning Ranch Final EIR, page 3 -985. That analysis is over ten years old. In addition, CEQA requires new environmental analysis for the impacts of the Project on global warming and green house gases. See. e.g. Public Resources Code section 21159.28. Although the General Plan EIR contained a truncated analysis of global warming for the entire General Plan Project, it had no specifics for the captioned Project. Further, water quality regulations have tightened since the approve of the 1980 EIR for the Project. Second, the Project has changed. The Settlement Agreement authorized specific uses and allocated square footage for those uses. The captioned Project aggregates such square footage with no use limitations. Further, the proposed Project lifts arestriction for restaurant uses at specific locations and allows restaurant uses on the entire site. In addition, the proposed Project seeks to reduce dry boat storage, boat trailer parking, and boat launching without any analysis of how this will impact recreation or Coastal access. Further, the proposed Project seeks to introduce a problematic issue that we already have in the harbor: More charter boats. All of this will have impacts on the community which must be analyzed and mitigates. Further, the Project will also affect and conflict with residential uses in the vicinity. The Project is not exempt; it requires a fresh EIR with a full Proj cot description to support any such euvironmental analysis, Thank you for the opportunity to comment on the captioned matter. Please provide me with notices regarding the captioned Project. We will provide further and additional comments on the captioned matter in a timely manner. ECM Walker & Harkins LLP Bradley D. Walker 7821 East Seventeenth Street bwalker@linkline.com David E. Cane Suite 140 deane(olinkline.com James C. Harkins, 19912 JUL 10 A4 9- L12 Tustin, CA 92780 ibarkins @linkline.com Telephone (714) 573.8990 Facsimile (714) 573 -8999 C INTED!' July 9, 2012 File 30392 -001 Members of the Newport Beach City Council c/o Leilani I. Brown, City Clerk 3300 Newport Boulevard. Newport Beach, CA 92663 Re: Dover Shores Community Association Subject: SECOND AMENDMENT TO THE AMENDED NEWPORT DUNES SETTLEMENT AGREEMENT AMONG THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, WATERFRONT RESORT PROPERTIES L.P., AND NEWPORT DUNES MARINA, LLC, LOCATED AT 1131 BACK BAY DRIVE (PA2012 -080) Dear Members of the Newport Beach City Council: Our office serves as legal counsel to the Dover Shores Community Association (the "Association "). The above referenced matter is on the Council's Agenda for tomorrow, July 10, 2012. The matter is item number 15 under the heading "XVIJ. Current Business." I am writing on the Association's behalf to request that discussion and decision on this matter be postponed to a future date. By letter received at the Association's management company on July3, 2012, the Association was notified that the matter would be on tomorrow's Agenda. The letter was forwarded to the Association's President by the Association's management company. The letter advises that any questions and /or requests for information and documents should be directed to Mr. Patrick Alford. Mr. Alford was not in the office this past Friday and the Association is advised that he will not be returning until tomorrow. Newport Dunes is located across the bay from Dover Shores. The amendments proposed to the Settlement Agreement, particularly the amendment concerning the allowable location of charter vessels, may` significantly impact Association residents. Given that the letter advising that this matter is on the Agenda for tomorrow was not received until the day before the Independence Day holiday, and given Mr. Alford's absence, the Association is respectfully requesting that any Council discussion and/or decision on this matter be postponed to a future Council meeting to afford the Members of the Newport Beach City Council July 9, 2412 Pace 2 Association, the members of its elected Board of Directors, and its residents sufficient time within which to have their questions answered and to evaluate the information and documentation received. Very truly CANE, ,/'/ALIT R & HARKINS LLP cc: Board of Directors Dover Shores Community Members of the Newport Beach City Council (Via Email)