HomeMy WebLinkAboutSecond Amendment to the Settlement AgreementSECOND AMENDMENT TO AMENDED NEWPORT DUNES SETTLEMENT AGREEMENT
THIS SECOND AMENDMENT TO AMENDED NEWPORT DUNES &_ETTLEfv1ENT
AGREEMENT (this "Amendment"), entered into this 0Jj._ day of ~2013
("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 Oointly, 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;
(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.
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,
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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 I.C 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 tem,s 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 restaur~nt, 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 Ill 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 of
this Amendment and the construction and operation of the Family Inn is
subject to the following:
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(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 Ill.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 Inn is 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
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
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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.B(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 8-2. [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:
(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
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C.
D.
(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 20.64 of the
Newport Beach Municipal Code, as may be amended from time to time.
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.
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
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
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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 Slips/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:
(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;
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(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.
(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
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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.
111. ADDITIONAL REQUIRED FACILITIES. Section II of the Original Agreement is
hereby amended and restated to read in its entirety as follows:
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
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8.
C.
D.
E.
F.
G.
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.
Wash Down. Company shall retain or upgrade the wash-down facilities
located in proximity to the launch ramp;
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.
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.
Camping. Company shall provide for overnight camping uses and
facilities necessary to serve recreational vehicle owners and ARV
occupants.
Human-Powered Launch. Company agrees to maintain the existing
launch and storage area for human-powered and small sail craft.
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
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engaged in constructing, repamng 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 Ill of the
Original Agreement is hereby amended and restated to read in its entirety as follows:
Ill. 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 Siqnage. 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 20.42 and 20.40,
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 111.C. Consistent with the terms of the Agreement, amendments 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 ear1y
phases of development will not generate substantial level of traffic over
and above those which now exist, infrastructure necessary to
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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;
(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);
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(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 111.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.
G) 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 111.C 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
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 111.C. Under no circumstances shall
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Company pay less than the $560,402 still owing to the City under this
Section 111.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;
(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;
14
V.
I.
(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".
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 Ill.I. 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 Ill.I. 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:
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.
15
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
TO COMPANY: Newport Dunes Marina, LLC
5150 Overland Avenue
Culver City, CA 90230
Attention: Warren L. Breslow
16
AND : Waterfront Resort Properties, LP.
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
8. 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
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.
17
[Signatures on following page]
18
Executed the day and year first above written.
APPROVED AS TO FORM:
Aaron C. Harp i~ l L.
City Attorney for the
City of Newport Beach
ATTEST:
COMPANY:
Newport Dunes Marina LLC,
a California limited liability company,
By: WLB Group GP LLC
By: __________ _
CITY OF NEWPORT BEACH,
A Municipal Corporation
By:~°'-lM
idKiff ~
City Manager for the
City of Newport Beach
APPROVED AS TO FORM:
Special Counsel
By: _________ _
Elizabeth Hull
Best, Best & Krieger, LLP
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
Warren Breslow, Manager By: __________ _
COUNTY:
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
79-1535
A~/kJ ·
/~nNovak, ~
Clerk of the Board of Supervisors
Orange County, California
19
Executed the day and year first above written.
APPROVED AS TO FORM:
By:--~-------
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
By:-----------
CITY OF NEWPORT BEACH,
A Municipal Corporation
By: ____________ _
David Kiff
City Manager for the
City of Newport Beach
APPROVED AS TO FORM:
E · abeth Hull
est, Best & Krieger, LLP
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
Warren Breslow, Manager By: __________ _
COUNTY:
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
79-1535
By: ________ _
ATTEST: Chair, Board of Supervisors
Susan Novak,
Clerk of the Board of Supervisors
Orange County, California
19
Executed the day and year first above written.
APPROVED AS TO FORM:
By:----------
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
By ~ ~er
COUNTY:
CITY OF NEWPORT BEACH,
A Municipal Corporation
By: ____________ _
David Kiff
City Manager for the
City of Newport Beach
APPROVED AS TO FORM:
Special Counsel
By: ________ _,
Elizabeth Hull
Best, Best & Krieger, LLP
WATERFRONT RESORT PROPERTIES
L.P., a California limited liability company
Formerly known as Tahoe Shores, Ltd.
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
79-1535
By: __________ _
ATTEST: Chair, Board of Supervisors
Susan Novak,
Clerk of the Board of Supervisors
Orange County, California
19
Attachments: Exhibit A -Property
Exhibit 8-Wieland Study
Exhibit C -Temporary Enclosure
20
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Exhibit B
f' ~ April 24, 2002 Project File 360-02
.._, (Revised May 15, 2002) A ~
" !v1r. Timothy Quinn
Newport Dunes
1131 Back Bay Drive
Newport Beach, CA 92660
Subje1.:l: Evaluation o!' Noise Levels Gl!nenned by Live Entefl.ainment at
the Kewport Dunes Reson. Newpon Beach
Dear Mr. Quinn:
Al the request of the City of ~ewport Beach, the Newport Dunes Resort has
applied for a use pennit lo 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 prepa.red 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, a11d provide our findings and
recommendations.
City of Newport Beach Noise Standards
With respect to controlling noise intnision from the live entertainment events,
the City of Newpon Beach has two sets of standards: Chapter 10.26
"Commwziry Noise Control", and Chapter 10.32 "Sound-Amplifying
Equipment." Each is briefly discussed in the following sections.
Chapter l0.26
The Ci Ly':; noise ordinance sundurds tChapccr 10.26) state that 1he allowublc
average exterior noise level experienced in a residenLial arc.las a tcsu!t of
;!Ctivitic~ al the Nt!wpo1t Dunes shall not exceed 55 dB(A) for any 15-minutc.
period during the daytime hours of 7:00 a.m. to 10:00 p.111. During i.hc
~iglmime hours of !0:00 p.m. to 7:00 .1.m. che standard is 50 dB(A). The
ma.,imum instantaneous noi~e icvcl that is pl:nnilteJ i~ 75 dB(A) during the
d;.i:,time or 70 dl3(A) during the r.ighrtiml'. Tf the :imhient noise level ~xc~eds
these standards, thC'n the nmbient shall he the standard.
Chapter 10.32
With regard to the use of sound-amphtying equipment, Section lU.32.060,
Par.tgr.1ph D states that "The n1/:mw of so:mJ ~Fiali fh· cnntmlkJ stJ that it h'i!!
r,et be c1.uJiblc f<.·r a J1.,:<u1<.1' i,? e.1.·c·s.1· o.f u11~· htmJr~J (!00.i fr,·t from rht.·
Jo1utd-ampiifyin:...,· t·,1uipma1 er svw;d lrnck. w:J sv th;;; Iht! volume: is nvl
Wieland As~ociate~, Inc.
23176 S.:,uth Point~ Dril,
Suitt 11~
L:ieuna H,11,, 1 A 1~~.:;_'
Tri: ll49'8H-6i2~
J,'3:1.: 949-'829-6670
NEWPORT DUNES
Pro1ec I Rte '.!60-02
unreasonably loud, raucous, jarring, disturbing or a ,:uisaJZce to persons wi1hin rhe
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 1ha1 can be gtncrntcd by rhc equiprntnt, unl~ that it can't be heard more than
100' from the equip1rn:r.L
Newport Dunes E~·cnfs
The Newport Dunl!s provides two types of event:. that :!X of concern in this s1uJy. These
arc the Pavilion/Gazebo evcntEi :ind tent events. F...i.ch is dcscrihed in the following
st:clions.
Pavilior\/Gazcbo Events
The Newport Dun.es has four pavilions and one gazebo along its beaches at which
outdoor pa1ties with live entertainment occur. These parties can occur on any day or 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 .'.lt all four pavilions and the gazebo simultaneously.
Each perf onning artist or DJ provides his/h~r own instruments, amplifiers and speakers.
To reduce noise levels at lhe homes in the Dover Shores community, the Ncwpon Dunes
requires I.hat all speakers bt oriented away from the bay, and guards periodically check
• the noise. l~vels with suund kvcl meters.
()
0
H
Tent Events
The tent is a temporary structure that is erected in the boat tr~liler parking lot for visiting
groups and local social events. It remains there for a 4-momh period during the winter,
and for a 2-month period durir.g the summer. As wi:h the p:!vilion events, each group
renting the tent hires its own band or DJ. The Newport Dunes provides no audio systi:ms
inside Lhe tent; therefore, each band or DJ must provide their own equipment. Since the
t:::rH c,·ents are private. the hours vary considerably, but rarely extend past 12:00 n.m.
Typical audience si7.GS m1mber around 250-100 people.
Noiu Measuremn1ts
To identify typical noise levels that are g(:;nerakd by live c1,tcrtainmi.:nt :i.l th1; out<loor
\'c.nues :md the tcnr, the >kwport Dunes hfrcd a DJ, fitcd drum b.md :mJ a rock b:.rnd tu
participate in demonstration ti.:srs on the evening of April -l, 2002. These tests were
conducted inside ti":c Lent :md al Pavilion A. At both locations, the DJ and bands were
asked to play typical selei::1:ons at :i nom1al volume for a period of at least ten minutes.
Inside the tent, :i Larson D.ivis MoJel 2800 real-time ::malp..~r was positioned at a
dist;:i.nce of 20 feet directly in front of the DJ or band. At Pavilion A, the DJ anJ band
\, ~rn located under thi.; r;anopies, with their instrumenls and 3pcak.cr8 oriented towards
P;u;ific Coa~t High\\ay. To :.lsses:. the noise levels tbt ;tre llir~;;tcJ towards the Dovl!r
Shores community, the .111:.ily:.:.er w:1.s pmitio11e-d ~t thG edge (If lhc pavilion's concrete pad
in th..: dirc~~tion of tht homl.!s. During the lC'sts two .ldditiotinl sound Je,.·cl mciers were
2
•
~EWPORT Ol:NflS
Pn:,~cl ~-1k 3t,<l 0~
positioned at nearby residcntisl areas to docl.!ir.cnt the noise levels Lhal propagated from
the Newport Dunes. ·n1ese positions were sl.affed by trained personnel lo assess the
audibility of the demonstration tests.
Tt,e re$ulis or th,· n01ltc 1<:\'t'I 111.·a,111-emt·nts .it thr: Ncwpo11 DLt11L-' :ire ,umniarizi.:d as
follows:
Sled dn.1rn
bnnd
~·-t,:-1n-.l--1--S-:>.-~-d-B-, ,-,--+ ~-------
77.5 dD(A)
100.9 dl-!(Ci ~-l_0_3 _0_J_B_, A_'i_, __ i_l :_· ._3_dB L_j
90.3 d (C) S0.3 dB(A) 97.0dB C)
Note that the sou:1d levels measured in the t~nt and ;:,.t the pavilion have been weighted
using both the C-scale and the more common A-s~;1k. The C-scale ensures that ,he low-
frequency sound energy pro<lu.;td by the bass instrument~ is properly ::iddressed in this
study. Since the A-scale significuntiy minimizes low-frequency noi~e in its calculation <if
un overall noise level, the C-r;c.!lc represents a more ri;:~trictive criteria.
Figures 1 and 2 pro\ idc graphic r.:prcsentations of the :J.\ eruge and maxi mum noise k, els
measured in:;ide the knt, n.:spl!ct;vely. Rc:ferring to the figu;es, it is noted that the rock
band produced significantly more low-frequency noise th~,n either th~ DJ ur the s.teel
drum bnnd.
As lndicatcd pr.!viously, noise me,1~urement.'l \\ ere also obt:.uned at two locations in the
:;urrounding re,ddc::n'.i.il cc-;;r:nunity. These ivcations an.: identifil.:,(j in Figure 3, and the
r:!SUIL<; cf our me:isuremcnts arc provided in Appendix I. In i;rner .. !I, the avera~c noise
leve-1 (Leq) in the surrounding communily ,·:nil·J f!"('>m 45 to 51 dBlA), depending en the
Jli(·Jsurcment ltk·atiiJn ~ind its pru:<imity LO the nl..'arl··y streets. Howeu·r, at neither of thcs1.:
1,,-!atiLms wa:-; 1h,· music Lrn:n th.:-DJ, srecl dTU1:. h:ir.d. c,r rock bnnd audible or
me:isur:ibk abo,l: :iw ;11rb;(·11t. when played ar tht: H:n'. or at Pavilion A.
\Ve wen:, unable:: to g.":n acn·~s tu the. Sc:;1 hLmJ cum111u:1ii:· during the n(li:;e
mc;1;,uremcrl\s tc• a,,\~·:;:i ,h~ music's :mdibilit:>. This c;s.:,111munity j~ lu-:<itt:d ,U abuut th.:
same Jist:.mce from the tent a, i:;; the mt:::i..;urcmrnt rosit:or. in the rr:1)bilc h.:.)mc park on
:-.Ia.:,fiov, .. :r DjYi:. Sin1.:..: Lhl' mu~ic w:.:.:; no~ :L..1J:blt.: Jt :ii~ mobik home p;1rJ...., whid1 i:; ir.
tbe ,,rripag:uiPn p,it!i of tile mu:;:c, it ma~ be 1 ~ason:1bly coJ.L.ludd thnt th~ musil! woulJ
not be ;,udibk \\:thin St>:i frl;md. Pa,·ili0n ,\ i, ~bot.:t l/3 closer lo Sea b]and than it is,,,
the measurement p,.':,ili1·:1 i.J t\c In(•h:k l:o:;k: p:.:rk. Tlr_is, the m·J.sic level could be 3 to -l
3
_., •• I
A vcrage Sound Le,1el 20' in I?ront of Source
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!O 100 1.000 1(),000
One-. Third Octave Raml Center Frequency, Hz
I
L=•-DJ .. ~-~tee! Dn1m Band Rc,ck Band I --_ /
Fi~urt· I.
Ma'timum Sound Level 201 in Front of Source
120 .--
= "Cl
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r -··---···
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e
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NEWPOl{T DVNE.5
l'n?ccl Fi k 36(H:-:
dB higher in Sea Island than in the mobile home park. However, this does not
necessarily mean that the noise will be audible within s~ TsJand, which is ex.posed to
signilicamly higher ambient noise as a result of traffic on Jamboree Road. Based on the
measur~mcnls obtaineJ su far at :\'cwpo11 Dunes, :here is i!1sufiicient data on whkh w
formulaic a cnndusinn rcg;.mJing the :1udibili1y within Sc:'! Island L0 f n,usk at the
pavi I ions,
Recommcndatjons
The sound lc..,cl generated at a position 20' in front of J live cntertainmem ace should
not exceed an average (Lcq) of 95 dB(C) or a rna.Y.imt:m of 102 dB(C). However, in
the c\cnt that nwrr th.in 0nc act is performing at a time. the sound level stamhi:-tl
should be rc.uuc.:cd ,ls foili.J\\ s fur cacti e.ct:
Number or Acts -~ ,A,uugc Noise Lc,cl
l\la.'\imum l\oisc Lc,·rl l'crfonning:·. '· .. (Leq) Stamlnrd for
. Slmultaneousi;y: :r:·· · ::. 'Eath Act ' Standard for Each Art . 95 dBfC) 102dB(C)
I '.? 92 JB(C) !)9 dB1:C)
3 90 dB(C) 97 c!B(C)
4 39 dB(C) 96 dBtC)
5 S6 dB(C} 95 dB(()
CJ S7 dB(C) 94 i.1Bt()
The Newporr Dunes shoulc.! rent or purcha:.;c a calibrnted integrncin~ sound lcvei
meter capabk cf measuring, displaying and storing 1-minutc Lcq's using the C-
wcighting scale.
The Ncwpon Dunes should assign one person to be n:sponsir.lc for calibrating and
operating the sound level meter, setting it up at the various vcn:.ies, advbing the act(s)
on measured level Ii, downloading the dati at the end of the ewnr, and providing the
J\c\\pon Dunc:i with a report summarizing the me:isur-~d data.
4. During the s,lund chl·ck, the Ne\\ pvit Dunes' st.d"f sh0uld be n:spunsibie fo1 assisting
tl1l·· ~rfurrning artist or DJ in ci;iablishing amplifi~r and mixrr hliard setting~ that will
ad1ieve the socnd It:\ cl standarc!s.
5. Sound checks should be closely mcnitoreu anJ kept to a minirr.um.
6. The !'-il!Wpott Duna:::S shuuld book pt"rio:mcrs whom the~ feel :i.:c acoustically
.1pproprial~ for the facility and th(: ,·omtnunity, based on their previous e:-.pcrier.ce.
Gue~rs shculd '"0! he permitted l(1 hire their own :.ct;;
7. 11:e ;\l!Wpon Dunc, shou!J ::ittcmpt to emph,y lh~ sam~ ~..:ts thrvughoi.:t the :-ieason t0
ensure consiste;ic:.
S. The liv~ cntl!rtair.n,t.";~t acts ~lwuld :>e ;·uiui~d kl 0ricnt trl'ir ~1x-,1kcrs .md amplifier~
l<J\\ arJs PJ:..-ific Ci .. ,:.!~l Hit'.h\\ :1y .v1J p,::-:il:cl tv Jardx1rTc RliaJ.
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•
NEWl'ORT DUNES
l'loj6Ct File 36-0·02
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. Thc~t: barrier.; may he constructed of 1/~"-thid; plywood or Plcxig!:ls,
or m:iy be fonncd from acoustical blani-.ct.,; that pro\ id~ a minimum sounc
transmission dass (STC) rating of 20.
lO. Future contracts with pcrfonning artists or DJs ~hould identify the Newport Dunes as
J noise-sensitive venue. All perforn:ers should be made aware of the unique
surroundings, the need to eliminate unnecessary soun<ls during sound checks, and the
need to control the volt;me during the= pcrfonnance.
It. The cont.acts ~hould clearly identify the :<:.ound level srandards ider.tified in Item I
above.
12. The contracts should clearly state that the Newport Dunes staff or agents rescrrn the
righL to adjust lhe amplifier and mixer bourd settings during an event, or to stop the
evenl entirely, as needed to respond to community complaints or to an excee<lunce of
the sound level standanls.
13. The Newport Dunes should designate a contact pc:rson 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 .
14. If a complaint is received during an event, the Newport Dunes' contact person should
take whatever reasonable steps are necessary 10 resolve: the complaint. These steps
may include ordering that the mixer board and/or amplifier settings be lov.ercd. or
stopping the event.
15. ln the even no· ·c com la'nts are received, a member of lhe Newpo1t Dunes' st~ff
. hould travel i l i.: Cl)J 1pttim.nt's le ation to understand the nature of the
dhturbance .
. Tn g•· era , t c Jive cnt n: inmcnt should not be pennittcd to extend past 10:00 p.m.
Hu\l. e, er, un ucc~ion il m:.i;· b~ pcnnitt.::J.. to ex t~nd 10 11 :30 p.m. on Frid:i.ys,
Saturdays and holid.1ys with the approval of lhc City's Planning Director on a cuse-
by-casc basis.
8
NEWPORT DUNF.S
Proj«l file 360-0~
We appreciate the opponunity to provide you wi1h this report. If you have any questions,
please feel free to call us at 949/829-6722.
Sincerely,
DavidL Wi l
Principal Consultant
9
Wieland Associates, Inc.
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Table J. Noise Survey
Project: Newpcrt Dunes Mu.surcment Period
Pcsition On vacai1t lot be:ween j22 and 324
Ma)'flo\tler
Da:e: Apr:I 4, 2002
Time Nc1ed
J-;oise Source: Traffic
Dis1:i.r.ce: 6' from 6' high blcck wall
SLM Height: S
LO 712 SIN: 0556
LD ~ALISO
Calib~ator Sr':'>1: 2206
I Operator: Jonathan L. Higginson
r-80.0
' I 75.0 !------·---~-----~---·· -.. -.. _, . . I
.-iO.O ' . ' -~---~-----~-···· ·---· < -65.0 -.,,
"ii 60.0 > -----~ ----.. --.. -.. -.... ----... i_. --.. -.. j ' .. S5.0 .!3 0 :z. !O 0
45.0
40.0
Pcrc1:ol of Tlme Nui.\c Len) is E "eeded
• Lcq is the average sound l~vel during the 111~:.Hurcrne~I periud.
, ~u PM
1£'
6.JIPM
n• Ln
2 s,s 0
8 S3.4
25 51.4
50 49.5 --
90
99
Leq 51.l
Lrm.ic 63.8
!..min JJ.8
S:-mbol: •
Scur~e:
Ln is th,: sound level exceeded n% of thr: tilnl! d'Jr:::g t~~ rne:isi.:r~mrnt period.
7 19 P~I
IO
8:22PM
Ln
5:?.I
SO.I!
l
49.0
47.6
48.2
59.5
41.4
•
Lmax and Lmin are the ma.ximur.1 and mir.imum ;ound 1(·,cl~ Jurlng t!:c m;:;:isuremtm perkd.
W!F.LAND .-tSSOCIATES, J;'\'C
"'
Ln
Table 1. Noise Survey
?reject: 'Ncwpor:: Dunes
?usi110:i: On PolJ.ris sidew:ilk on oppcsitc 5jde
of street from Pol.iris Park
Date· April~. 2002
Time: Noted
IJistance: v~ries
SLM Height: 5'
LO 712 SIN: 0555
LD CAL150
Calibrator S/N:
Operator:
2206
Robena R. Wieland
,---------------------
80.0
7S.O
~ 70.\)
~ 6S.O .. 60.0 ;
'! -.. S5.0 .. 'o z ~0.0
45.0
40.0
-----~-----~··---~---·· '
·----'--.......... . . ···-·-----···---I -----~----
0 20 40 60 liO IOC
Percc111 of Time Noise Level iJ Excettled
• Lcq is the :iserage soL!r.d '.cv.:I during the me:i~~rcrr.e:-.t per:cJ.
Measuremcm1 Period
~~PM
lo :o to
S~5 PM
n" ln Ln Ln
2 .;9.2
8 47.6
25 46.l
50 44.3
:
90
99
i
Leq 45.0
Lma.x 59.S
lm::: :8.0
Symbol: • a A
Source:
Lr, ls r.f1e sound level e:,;.c,::eded n% cf the !ime durir.g ·.:ie rr.easure:nen: pericd.
Lmax and Lmin art the ;:1axi:num Jnd rr.inimum scunJ level~ c!uring !he rncasur~rn,:n; rtriud.
WTJ::L.-iND ASSOCUTES, INC,
Exhibit C
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/ \ Te oorary {' ·· )'< ---E~cjbsu re
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