HomeMy WebLinkAbout3.0_Newport Beach Country Club_PA2008-152CITY OF NEWPORT BEACH
PLANNING COMMISSION STAFF REPORT
November 17, 2011
Agenda Item: 3
SUBJECT: Newport Beach Country Club (PA2008 -152)
1600 East Coast Highway
• Mitigated Negative Declaration No. ND2010 -010
• General Plan Amendment No. GP2008 -005
• Planned Community Development Plan Amendment No. PC2008 -001
• Site Development Review No. SD2011 -003
• Limited Term Permit No. XP2011 -005
• Development Agreement No. DA2010 -005
APPLICANT: Newport Beach Country Club, Inc.
PLANNER: Rosalinh M. Ung, Associate Planner
(949) 644 -3208, rung @newportbeachca.gov
On October 20, 2011, the Planning Commission conducted a public hearing on the
application submitted by the Newport Beach Country Club, Inc. to redevelop the existing
golf clubhouse and parking lot.
During the hearing, the Commission considered and generally supported the site
development review application submitted by the applicant, including the changes
incorporated, which addressed the Commission's previous concerns. The Commission
expressed a lack of support for maintaining the frontage road to the abutting Armstrong
Nursery and a desire to hide the proposed wrought iron fence along East Coast
Highway behind additional landscaping.
RECOMMENDATION
1. Conduct a public hearing; and
2. Adopt Resolution No. (Attachment PC1) recommending to the City Council:
a) Adoption of Mitigated Negative Declaration No. ND2010 -010, including the
Mitigation Monitoring and Report Program;
b) Approval of General Plan Amendment No. GP2008 -005, Planned
Community Development Plan Amendment No. PC2005 -002; and
c) Approval of Site Development Review No. SD2011 -003, Limited Term
Permit No. XP2011 -005, and Development Agreement No. DA2010 -005.
Newport Beach Country Club — NBCC, Inc.
November 17, 2011
Page 2
DISCUSSION
Environmental Review — Mitigated Negative Declaration
The draft Initial Study /Mitigated Negative Declaration, responses to comments received
and the Mitigation Monitoring and Reporting Program are attached to the prior reports.
The public hearing process has not identified to date any additional information to
suggest that the environmental record is inadequate. If the Commission concurs, it is
staff's recommendation that the Commission recommend the City Council adopt the
environmental document.
Planned Community Development Plan (PCDP) - Amendment
The attached draft PCDP is identical to the draft PCDP recommended for adoption with
the Golf Realty Fund application, with one exception; it amends the 35,000 square -foot
maximum for the golf clubhouse to 56,000 square feet (Attachment PC2). In the event
that the Planning Commission proceeds with the subject application without a
recommendation on the preceeding Golf Realty Fund application, staff has prepared an
alternative draft PCDP that only encompasses the 133 -acre golf club site including the
applicant's proposed 56,000 square -foot clubhouse and golf course. The alternative
draft PCDP does not include any references to development of the tennis club site as
proposed by Golf Realty Fund. (Attachment PC3). Neither draft PCDP provides for a
particular architectural style for any development nor do they fix the design of the
parking lot for the golf course. The final design of the parking lot would be a component
of the Site Development Review application.
Site Development Review (SDR)
In response to the Commission's concern about screening the proposed wrought iron
fence along East Coast Highway, the plans have been modified to include a wider
landscape buffer. Specifically, the landscape berm has been relocated to be adjacent to
East Coast Highway, and graduates to 4 feet in height rather than 2 '/2 feet as originally
proposed. The buffer between East Coast Highway and the frontage road is now 18 feet
in width. The frontage road has been reduced to 15 feet in width and will be one -way,
limited to east -bound traffic only. The reduction in the width of the frontage road allows
for an additional landscape buffer of 10 feet between the frontage road and the parking
lot. Finally, the landscaped berm has been separated from the perimeter fence. The
berm will shield the frontage road from East Coast Highway, and the separation
between the berm and the perimeter fence will make the fencing less prominent as
viewed from East Coast Highway. The modifications are depicted in Attachment PC4.
Although this revision addresses the Commission's concerns of screening the fence,
views through the landscaping to the golf course may be desirable and this plan does
not eliminate the frontage road as desired by the Commission.
Newport Beach Country Club — NBCC, Inc.
November 17, 2011
Page 3
Given the Commission's desire to approve the site plan without the frontage road, staff
has conditioned the SDR application such that preferred parking lot design eliminates
the frontage road (Condition #5). However, the City cannot control the existence of the
easement or require its elimination, but if the easement is proven to exist, the parking lot
shall be designed in conformance with Attachment PC4, including vehicle access be
limited to one -way east -bound movements.
The parking lot layout is included in the site plan; however, staff has added a condition
(Condition #7) that would allow the Community Development Director the ability to
approve a modified design such that the layout could resemble the Golf Realty Fund
proposal. Regardless of the final orientation of the drive aisles and parking spaces, the
final parking lot plan would need to provide the minimum number of spaces and ample
landscaping as depicted in the proposed site plan. The approval of the final parking lot
design plan by the Director would be administrative with appropriate notice to the
Planning Commission and City Council.
Development Agreement
Municipal Code Section 15.45.020.A.2.c (Development Agreement Required) requires a
development agreement as the project includes amendments to the General Plan and
Zoning Code and construction of new non - residential development in Statistical Area L1
(Newport Center /Fashion Island).
The proposed Development Agreement (Attachment PC4) specifies the term, permitted
use, density and intensity of the proposed development. The term of the agreement is
for ten (10) years. Given that the site is within the Coastal Zone and that the City does
not have a Certified Local Coastal Program, approval of the Development Agreement by
the Coastal Commission is necessary prior to the agreement being executed and
recorded. The development agreement would provide the vested right to proceed with
the project as ultimately approved by the City and Coastal Commission.
The draft development agreement requires the payment of a "Public Benefit Fee" in the
sum of ten dollars ($10) per square -foot of construction for the proposed golf clubhouse
(a maximum of $560,000). This fee would be subject to Consumer Price Index
adjustments.
The City Attorney's Office indicates that the draft agreement is consistent with
applicable provisions of State law governing DAs.
Newport Beach Country Club — NBCC, Inc.
November 17, 2011
Page 4
Prepared by: Submitted by:
O'saliAngh M. Ung, As oci to Planner James Caml bell, Princpal Planner
ATTACHMENTS
PC 1 Draft Resolution
PC 2 Draft Planned Community Development Plan Amendment
PC 3 Alternative Draft Planned Community Development Plan
PC 4 Revision to Landscape Frontage
PC 5 Draft Development Agreement
F:\USERS \PLN \Shared \PA's \PAs - 2008 \PA2008 - 152 \PC Staff Report.docx
Attachment No. PC 1
Draft Resolution
RESOLUTION NO.
A RESOLUTION OF THE PLANNING COMMISSION OF THE
CITY OF NEWPORT BEACH RECOMMENDING ADOPTION OF
A MITIGATED NEGATIVE DECLARATION NO. ND2010 -010 AND
APPROVAL OF GENERAL PLAN AMENDMENT NO. GPA2008-
005, PLANNED COMMUNITY DEVELOPMENT PLAN ADOPTION
NO PC2008 -001, SITE DEVELOPMENT REVIEW NO. SD2011-
003, LIMITED TERM PERMIT NO. XP2011 -005, AND
DEVELOPMENT AGREEMENT NO. DA2010 -005 FOR THE
NEWPORT BEACH COUNTRY CLUB PROPERTY LOCATED AT
1600 EAST COAST HIGHWAY (PA2008 -152)
THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS
FOLLOWS:
SECTION 1. STATEMENT OF FACTS.
1. An application was filed by The Newport Beach Country Club, Inc., with respect to
property located at 1600 East Coast Highway, and legally described as Parcels 1 and 3
of Parcel Map No. 79 -704 and a Portion of Back Bay Drive as Shown on Parcel Map No.
79 -704, requesting an approval to redevelop the existing golf clubhouse of the Newport
Beach Country Club. The following approvals are requested or required in order to
implement the project as proposed:
a. A General Plan Amendment to increase the allowable development limit in
Anomaly No. 74 in Statistical Area L1 (Newport Center /Fashion Island) of the
General Plan Land Use Element by 21,000 gross square feet, from 35,000 to
56,000 gross square feet.
b. A Planned Community Development Plan adoption to provide development
standards and design guidelines for the golf course and its ancillary uses,
pursuant to Chapter 20.35 of the Municipal Code.
C. A Site Development Review to allow the construction of 54,819 square -foot golf
clubhouse with the associate parking lot and maintenance facility, pursuant to
the Section 4.3 of the Newport Beach Country Planned Community
Development Plan.
d. A Limited Term Permit (Temporary Structure and Uses) for the temporary
use /structure during the clubhouse reconstruction, pursuant to Section
20.60.015 of the Municipal Code. .
e. A Development Agreement pursuant to Section 15.45.020.A.2.c of the
Municipal Code which requires a development agreement as the project
includes amendments to the General Plan and Zoning Code and construction of
new non - residential development in Statistical Area L1 (Newport
Center /Fashion Island).
Planning Commission Resolution No.
Page 2 of 25
2. The application was deemed complete on October 23, 2008; and pursuant to Ordinance
No. 2010 -21, the application is being considered and evaluated pursuant to the Zoning
Code in effect prior to November 25, 2010.
3. The subject property is located within the Newport Country Club Planned Community
(PC -47) Zoning District and the General Plan Land Use Element category of Parks and
Recreation (PR).
4. The subject property is located within the coastal zone and has the Coastal Land Use
Plan category Parks and Recreation (PR).
5. Public hearings were held on August 4, 2011, October 20, 2011, and November 17,
2011, in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach,
California. A notice of time, place and purpose of the meeting was given in accordance
with the Newport Beach Municipal Code. Evidence, both written and oral, was
presented to, and considered by, the Planning Commission at this meeting.
SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION.
1. An Initial Study and Mitigated Negative Declaration have been prepared in compliance
with the California Environmental Quality Act (CEQA), the State CEQA Guidelines,
and City Council Policy K -3.
2. The draft Mitigated Negative Declaration was circulated for a 30 -day comment period
beginning on October 7, 2010, and ending on November 8, 2010. The contents of the
environmental document and comments on the document were considered by the
Planning Commission in its review of the proposed project.
3. On the basis of the entire environmental review record, the proposed project, with
mitigation measures, will have a less than significant impact upon the environment and
there are no known substantial adverse affects on human beings that would be
caused. Additionally, there are no long -term environmental goals that would be
compromised by the project, nor cumulative impacts anticipated in connection with the
project. The mitigation measures identified and incorporated in the Mitigation
Monitoring and Reporting Program are feasible and will reduce the potential
environmental impacts to a less than significant level.
4. The Planning Commission finds that judicial challenges to the City's CEQA
determinations and approvals of land use projects are costly and time consuming. In
addition, project opponents often seek an award of attorneys' fees in such challenges.
As project applicants are the primary beneficiaries of such approvals, it is appropriate
that such applicants should bear the expense of defending against any such judicial
challenge, and bear the responsibility for any costs, attorneys' fees, and damages
which may be awarded to a successful challenger.
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SECTION 3. REQUIRED FINDINGS.
1. The proposed project is consistent with the General Plan and Coastal Land Use Plan
as follows:
a. The project site is located within the Statistical Area L1 of the General Plan
Land Use Element. The Land Use Element designates the subject property
Parks and Recreation (PR), which is intended for active public or private
recreational use. Permitted uses include parks (both active and passive), golf
courses, marina support facilities, aquatic facilities, tennis clubs and courts,
private recreation, and similar facilities. The proposed redevelopment of the golf
clubhouse consistent with the proposed alternative planned community
development plan thereby would be consistent with this designation.
b. The General Plan limits total development on the subject site to 35,000 square
feet per Anomaly No. 74. A general plan amendment to increase the maximum
floor area to 56,000 square feet, a net increase of 21,000 square feet, is
proposed in order to accommodate the proposed new golf clubhouse.
C. General Plan Policy LU 3.2 encourages the enhancement of existing
neighborhoods, districts, and corridors, by allowing for re -use and infill with
uses that are complementary in type, form, scale, and character. The policy
states that changes in use and /or density /intensity should be considered only in
those areas that are economically underperforming, are necessary to
accommodate Newport Beach's share of projected regional population growth,
improve the relationship and reduce commuting distance between home and
jobs, or enhance the values that distinguish Newport Beach as a special place
to live for its residents. The scale of growth and new development shall be
coordinated with the provision of adequate infrastructure and public services,
including standards for acceptable traffic level of service.
The proposed General Plan Amendment for increased intensity is consistent
with General Plan Policy LU 3.2 as follows:
1. The increased intensity does not impact Newport Beach's share of
projected regional population growth. The existing golf clubhouse was
constructed in the 1950's and no longer meets the needs of its
membership or the Newport Beach Community. National and
international golf tournaments are held at the Newport Beach Country
Club as well as numerous local and regional charitable events which
distinguish Newport Beach from other destinations in the southern
California area. The reconstruction and modernization of the clubhouse
will enable the Newport Beach Country Club to retain its reputation as a
world class sporting venue.
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2. The increase in intensity would enhance the values that distinguish
Newport Beach as a special place to live for its residents. The proposed
reconstruction represents a significant investment to upgrade an aging
facility with modern amenities for Newport Beach Country Club members
and the greater Newport Beach community during special events, while
retaining both active and passive open space in an urban environment.
d. General Plan Policy LU 5.6.1 requires that buildings and properties be designed
to ensure compatibility within and as interfaces between neighborhoods,
districts, and corridors. An alternative planned community district development
plan has been prepared that contains development regulations ensuring
compatibility with the surrounding uses. The project, therefore, is consistent
with this policy.
e. General Plan Policy 6.14.4 reinforce the original design concept for Newport
Center by concentrating the greatest building mass and height in the
northeasterly section along San Joaquin Hill Roads, where the natural
topography is highest and progressively scaling down building mass and height
to follow the lower elevations toward the southwesterly edge along Coast
Highway.
The proposed General Plan Amendment for increased intensity is consistent
with General Plan Policy LU 6.14.4 in that the proposed reconstruction of the
golf clubhouse will allow for the expansion of an existing use allowed by the
Land Use Element of the General Plan. The proposed alternative planned
community district development plan adheres to the original design concept for
Newport Center by not creating a building that is exceedingly high in the lower
area along Coast Highway. The golf clubhouse building height will not exceed
the nonresidential, nonshoreline 32/50 -foot height limit area.
f. The Coastal Land Use Plan designates the subject site as Parks and
Recreation (PR) and is consistent with the General Plan Land Use designation.
The adoption of the amendment to the planned community development, plan
will ensure building design and siting regulations will protect coastal resources,
including protection of views, and public access through height, setback, floor
area, lot coverage, building bulk, and improved pedestrian access in
accordance with Policy 2.2.2 -4. The proposed golf clubhouse of the Newport
Beach Country Club will continue to provide visitor - serving and recreational
facilities as required by Policy 2.3.2 -2. The proposed redevelopment of the
project site is therefore consistent with the Coastal Land Use designation.
g. The subject property has a zoning designation of Planned Community (PC -47).
This PC zoning designation was adopted in 1997 by Ordinance 97 -10, as a part
of the City -wide amendment to the districting maps, in order to be consistent
with the 1988 General Plan Land Use Element and Zoning Code. The City later
assigned the PC with a number of 47 for tracking purposes. A Planned
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Community Development Plan (development regulations), was not adopted
when the PC District zoning designation was assigned to the subject property.
h. A planned community development plan (PCDP) is proposed for the Golf Club
site and not to include the entire area within the area designated of PC 47. The
PCDP contains necessary development regulations to accommodate the
applicant's project.
2. Charter Section 423 Analysis — Charter Section 423 requires that all proposed General
Plan Amendments be reviewed to determine if the square footage (for non - residential
projects), peak hour vehicle trip, or dwelling units thresholds would be exceeded as
the means to determine whether a vote by the electorate would be required to approve
the General Plan Amendment.
The subject property is located within Statistical Area L1 of the General Plan Land Use
Element. There are no prior general plan amendments to this statistical area since
2006 when the General Plan Update was adopted. The proposed General Plan
amendment would be the first amendment for this statistical area and would result in
an increase of 21,000 gross square feet (GSF) of non - residential floor area. No
increase in residential development is being proposed. There would be no increase to
A.M. nor P.M. peak hour trip as the overall size of the golf course remains the same
and the proposed clubhouse does not have separate trip rates and ITE predicts traffic
based upon the number of acres and not floor area. Pursuant to Council Policy A -18,
voter approval is not required as the proposed General Plan Amendment represents
an increase of 21,000 square feet, no increase in residential development, and no
increase to A.M. nor P.M. peak hour trip. The project, therefore, does not exceed
Charter Section 423 thresholds as to require a vote of the electorate.
3. Site Development Review - The project consists of 54,819 square foot clubhouse with
associate parking lot and maintenance facility. Pursuant to Section 4.3 of the PCDP,
the following findings and facts in support of such findings are set forth:
Finding:
A. The Site Development Plan shall be in compliance with all other provisions of the
PCDP (Newport Beach Country Club Planned Community Development Plan).
Facts in Support of Finding:
A -1. The PCDP provides a requirement that a site development review process be
completed for construction of any new major building structure located on the subject
site and would require consideration and approval by the Planning Commission prior
to the issuance of grading or building permits. A site development review application
has been submitted for the construction of the golf clubhouse and meets provisions
stated in the PCDP in that and thereby meets the intent specified in Section 20.52.080
(Site Development Reviews) of the Municipal Code.
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A -2. The proposed site development plan is in compliance with all provisions of the PCDP
as the proposed development complies with all development criteria specified in the
PCDP.
Finding:
B. The Site Development Plan shall be compatible with the character of the neighboring
uses and surrounding sites and shall not be detrimental to the orderly and harmonious
development of the surroundings and of the City.
Facts in Support of Finding:
B -1. The golf course is an existing use that has been in place since the 1950's. The
reconstruction and modernization of the golf clubhouse will enable the golf course to
retain its reputation as a world class sporting venue. The reconstruction represents a
significant upgrade to an aging facility with modern amenities for its members and also
to the greater Newport Beach community during special events, while retaining both
active and passive open space in an urban environment.
B -2. The proposed placement of the golf clubhouse and support uses will be within the
same general location as the existing buildings. An open, landscaped area will remain
between the porte - cochere and the adjacent tennis club facility. The elevation of the
proposed development located on the adjacent Tennis Club site is higher than the golf
club property, and combined with the significant separation from the proposed
clubhouse, an adequate visual buffer between the two properties will be provided. The
golf course has been designed and the buildings have been sited to compliment
topography of the area and the variety of uses found within the Newport
Center /Fashion Island area. The development will not constitute a hazard to the public
convenience, health, interest, safety or general welfare for persons residing or working
in the neighborhood of the facility.
Finding:
C. The Site Development Plan shall be sited and designed to maximize of aesthetic
quality of the Newport Beach Country Club Planned Community Development Plan as
viewed from surrounding roadways and properties, with special consideration given to
the mass and bulk of buildings and the streetscape on East Coast Highway.
Facts in Support of Finding:
C -1. The proposed clubhouse will be 46 feet in height, within the maximum permitted
building height of 50 feet. The proposed detailed architectural plans illustrate the
clubhouse's building height, mass and design and demonstrate the project's
compatibility with existing development and the City's adopted policies and standards.
The edge of the porte - cochere will be set back approximately 165 feet from the
proposed adjacent development. A proposed wrought iron fence along East Coast
Highway and significant landscaping of the frontage and parking lot promote
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compatibility and will allow unobstructed views of the golf course, thereby providing an
aesthetic benefit view along Coast Highway. The entry drive has been enhanced with
the addition of a landscaped median, sidewalks on both sides and a landscape buffer
between the sidewalks and the road. The entry design with enhanced medians and
mature trees presents a more upscale aesthetic appearance and compatible with the
community.
Finding:
D. Site plan and layout of buildings, parking areas, pedestrian and vehicular access
ways, landscaping and other site features shall give proper consideration to functional
aspects of site development.
Facts in Support of Finding:
D -1. As proposed, entry driveway will be widened to align with the street portion south of
East Coast Highway, thereby providing improved access to the site. Pedestrian access
along entry driveway will be enhanced with sidewalks on both sides of the road. The
porte - cochere entrance to the clubhouse is designed to provide enhanced circulation
for bag drops and vehicular access to the parking area. A separate banquet drop -off
and pick -up areas are proposed to improve circulation throughout the parking lot. The
design of the parking area features will greatly improve circulation and provide
adequate parking to accommodate the needs of members and guests. The proposed
site plan also provides access to the adjacent Tennis Club site.
D -2. The application includes two site plan alternatives to address the existing frontage
road easement that presently provides access from the signalized intersection to the
abutting Armstrong Nursery property. Should the frontage road remain, the existing
entrance to the frontage road from Irvine Terrace will be moved approximately 60 feet
farther away from Coast Highway to provide safer ingress and egress. Should the
easement be terminated the alternate plan eliminates the frontage road easement
thereby allowing increased landscaping along Coast Highway. In any case, road and
access improvements provide additional safety to members and guests of the golf
club.
4. Development Agreement — Municipal Code Section 15.45.020.A.2.c (Development
Agreement Required) requires a development agreement as the project includes
amendments to the General Plan and Zoning Code and construction of new non-
residential development in Statistical Area L1 (Newport Center /Fashion Island). The
development agreement includes all the mandatory elements for consideration and the
public benefits are appropriate benefits to support conveying the vested development
rights.
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SECTION 4. DECISION.
NOW, THEREFORE, BE IT RESOLVED:
1. The Planning Commission of the City of Newport Beach does hereby find, on the basis of
the whole record, that there is no substantial evidence that the project will have a
significant effect on the environment and that the Mitigated Negative Declaration reflects
the Planning Commission's independent judgment and analysis. The Planning
Commission hereby recommends that the City Council adopt Mitigated Negative
Declaration, including the Mitigation Monitoring and Reporting Program attached as
Exhibit "A ". The document and all material, which constitute the record upon which
this decision was based, are on file with the Planning Department, City Hall, 3300
Newport Boulevard, Newport Beach, California.
2. The Planning Commission of the City of Newport Beach finds that judicial challenges to
the City's CEQA determinations and approvals of land use projects are costly and time
consuming. In addition, project opponents often seek an award of attorneys' fees in
such challenges. As project applicants are the primary beneficiaries of such approvals,
it is appropriate that such applicants should bear the expense of defending against any
such judicial challenge, and bear the responsibility for any costs, attorneys' fees, and
damages which may be awarded to a successful challenger.
3. The Planning Commission of the City of Newport Beach does hereby recommend that
the City Council approve General Plan Amendment No. GP2008 -005 to increase the
maximum allowable development limit in Anomaly No. 74 in Statistical Area L1
(Newport Center /Fashion Island) of the General Plan Land Use Element by 21,000
gross square feet (from 35,000 square feet to 56,000 square feet), as depicted in
Exhibit "B" attached hereto and incorporated by reference.
4. The Planning Commission of the City of Newport Beach does hereby recommend that
the City Council amend Planned Community Development Plan No. PD2008 -001 to
increase the size of the golf clubhouse from 35,000 to 56,000 square feet and to provide
zoning development standards and design guidelines for the Golf Course and its ancillary
uses, as depicted in Exhibit "C" attached hereto and incorporated by reference.
5. The Planning Commission of the City of Newport Beach does hereby recommend that
the City Council approve Limited Term Permit No. 2011 -005 and Site Development
Review No. SD2011 -003, subject to the conditions set forth in Exhibit "D" attached hereto
and incorporated by reference.
6. The Planning Commission of the City of Newport Beach does hereby recommend that
the City Council approve Development Agreement No. 2010 -005 as attached as Exhibit
"E"
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PASSED, APPROVED AND ADOPTED THIS 17TH OF NOVEMBER, 2011.
AYES:
NOES:
ABSTAIN
ABSENT:
BY:
Charles Unsworth. Chairman
Bradley Hilgren, Secretary
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EXHIBIT "A"
MITIGATION MONITORING AND REPORTING PROGRAM
SC /MM
Method of
Timing of
No.
I Mitigation Measure
Verification
Im lementation
Responsibility
Aesthetics
Prior to the issuance of building permits, the
applicant shall prepare a photometric study in
conjunction with a final lighting plan for approval
by the Planning Division. The site shall not be
excessively illuminated based on the luminance
recommendations of the Illuminating
SC -1
Engineering Society of North America, or, if in
Approval of
Prior to issuance of
Planning
the opinion of the Planning Director, the
photometric study
building permit
Division
illumination creates an unacceptable negative
impact on surrounding land uses or
environmental resources. The Planning Director
may order the dimming of light sources or other
remediation upon finding that the site is
excessively illuminated.
Agricultural and Forest Resources
No significant impacts are antici ated and no mitigation measures are required.
Air ualit
Adherence to SCAQMD Rule 402, which
prohibits air contaminants or other materials that
cause injury, detriment, nuisance or annoyance
to any considerable number of persons or to the
periodic monitoring
During construction
Community
SC -2
public, or which endanger the comfort, repose,
during construction
activities
Development
health, or safety of any such persons or the
Department
public, or which cause, or have a natural
tendency to cause injury or damage to business
or ro ert to be emitted within the SoCAB.
Adherence to SCAQMD Rule 403, which sets
requirements for dust control associated with
Periodic monitoring
During construction
Community
SC -3
grading and construction activities.
during construction
activities
Development
Department
Adherence to SCAQMD Rules 431.1 and 431.2,
Periodic monitoring
During construction
Community
SC -4
which require the use of low sulfur fuel for
during construction
activities
Development
station construction equipment.
De artment
SC -5
Adherence to SCAQMD Rule 1108, which sets
Periodic monitoring
During construction
Community
Development
limitations on ROG content in asphalt.
during construction
activities
Department
Adherence to SCAQMD Rule 1113, which sets
Periodic monitoring
During construction
Community
SC -6
limitations on ROG content in architectural
during construction
activities
Development
coatings.
Department
Adherence to Title 24 energy - efficient design
requirements as well as the provision of window
Submit evidence of
SC -7
glazing, wall insulation, and efficient ventilation
compliance during
Prior to issuance of
Building
methods in accordance with the requirements of
building plan check
building permits
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the Uniform Building Code.
process
Biological Resources
No significant impacts to biologic I resources are anticipated and no mitigation measures are required
Cultural Resources
SC -8
A qualified archaeological /paleontological
Submit proof of
Prior to issuance of
Planning
monitor shall be retained b the project a licant
ualified
grading permit
Division
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SC /MM
Method of
Timing of
No.
Mitigation Measure
Verification
Implementation
Responsibility
who will be available during the grading and
archaeological/
landform alteration phase and shall be contacted
paleontological
if cultural resources are encountered. In the
monitor
event that cultural resources and /or fossils are
encountered during construction activities,
ground - disturbing excavations in the vicinity of
the discovery shall be redirected or halted by the
monitor until the find has been salvaged. The
area surrounding any cultural materials or fossils
encountered during grading shall also be
investigated to determine the extent of the site.
Any artifacts and /or fossils discovered during
project construction shall be prepared to a point
of identification and stabilized for long -term
storage. Any discovery, along with supporting
documentation and an itemized catalogue, shall
be accessioned into the collections of a suitable
repository. Curation costs to accession any
collections shall be the responsibility of the
project applicant.
The City shall provide an opportunity for a Native
American representative to monitor excavation
Submit proof of
MM -1
activities. The representative shall be determined
Native American
Prior to issuance of
Planning
by the City based on input from concerned Native
observer
grading permit
Division
American tribes (i.e., Gabrielino, Juaneno, and
Ton vas.
GeologfandSoils
Prior to issuance of the grading permit, an
Approval of erosion
Prior to issuance of
Building
MM -3
erosion control plan shall be submitted to and
control plan
grading permit
Division
approved b the City's Chief Building Official.
Prior to issuance of a grading permit, the
applicant shall submit a soils engineering report
and final geotechnical report to the City's Chief
Building Official for approval. The project shall
be designed to incorporate the
Submittal of soils
MM -4
recommendations included in those reports that
engineering report
Prior to issuance of
Building
address site grading, site clearing, compaction,
and final
grading permit
Division
bearing capacity and settlement, lateral
geotechnical report
pressures, footing design, seismic design, slabs
on grade, retaining wall design, subdrain design,
concrete, surface drainage, landscape
maintenance, etc.
Greenhouse Gas Emissions
Submit evidence of
SC -9
All new buildings shall meet Title 24
compliance during
Prior to issuance of
Building
requirements.
building plan check
building permit
Division
process
Water conservation design features shall be
Submit evidence of
Prior to issuance of
Planning
Division and
SC -10
incorporated into building and landscape
compliance
building permit
Public Works
designs.
Department
Hazards and Hazardous Materials
Prior to any disturbance of the construction
materials within the Golf Clubhouse and /or the
Submit ACM and
Prior to issuance of
Building
SC -11
Tennis Clubhouse, a comprehensive asbestos
LBP survey and site
demolition permit for
Division
containing materials (ACM) and lead based paint
inspection
buildings
LBP survev shall be conducted. Any repairs,
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Planning Commission Resolution No. _
Paae 12 of 25
SC /MM
Method of
Timing of
No.
Mitt ation Measure
Verification
Implementation
Responsibility
renovations, removal or demolition activities that
will impact the ACM and /or LBP or inaccessible
ACM shall be performed by a licensed asbestos
contractor. Inaccessible suspect ACM shall be
tested prior to demolition or renovation. Proper
safely procedures for the handling of suspect
ACM and LBP shall be followed in accordance
with federal, state and local regulatory
requirements federal and California Occupation
Safety and Health Administration (OSHA), and
Air Quality Management District (AQMD) Rule
1403, which sets forth specific procedures and
requirements related to demolition activities
involving asbestos containing materials and
SCAQMD Regulation X - National Emission
Standards For Hazardous Air Pollutants,
Subpart M - National Emission Standards For
Asbestos, which include demolition activities
involving asbestos.
During demolition, grading, and excavation,
workers shall comply with the requirements of
Title 8 of the California Code of Regulations
Section 1532.1, which provides for exposure
limits, exposure monitoring, respiratory
Periodic monitoring
SC -12
protection, and good working practice by
during demolition
During demolition,
Building
workers exposed to lead. Lead - contaminated
and site inspection
grading and excavation
Division
debris and other wastes shall be managed and
disposed of in accordance with the applicable
provision of the California Health and Safety
Code.
Hydrology and Water Quali
The applicant has prepared a Conceptual WQMP that identifies a range of BMPs and related water quality features to ensure that
water quality impacts associated with the proposed project are reduced to an acceptable level. In addition, implementation of
BMPs that will be included in the SWPPP will ensure that construction impacts are minimized. Similarly, BMPs will also be
refined and incorporated into the project design to avoid post- construction impacts to water quality. Therefore, no significant
impacts are anticipated and no mitigation measures are required.
Land Use and Planning
No significant impacts are antici aled and no mitigation measures are required
Mineral Resources
No significant impacts are antici aled and no mitigation measures are required.
Noise
During construction operations, the applicant or
contractor shall provide evidence to the City that
Submit construction
During construction
Building
MM -5
all construction equipment, stationary and
schedule and site
operations
Division
mobile is equipped with properly operating and
inspection
maintained muffling devices.
Prior to issuance of a grading permit, the
applicant or contractor shall prepare a
Construction Management Plan (CMP), which
MM -6
confirms that potential project - related and
Submit construction
Prior to issuance of
Building
cumulative construction noise levels are
management plan
grading permit
Division
minimized and do not exceed levels prescribed
in the City's Noise Ordinance. The CMP shall
include a requirement that the construction
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Planning Commission Resolution No. _
Page 13 of 25
SC /MM
Method of
Timing of
No.
Mitigation Measure
Verification
Im lementation
Responsibility
contractor must notify the nearby residents of
the construction schedule for the proposed
project, and shall keep them informed on any
changes to the schedule. The notification shall
also identify the name and phone number of a
contact person in case of complaints. The
contact person shall take all reasonable steps to
resolve the complaint.
Prior to occupancy, heating, venting, and air
conditioning (HVAC) equipment in or adjacent to
Submit evidence of
residential areas shall be shown by computation,
HVAC equipment
based on the sound rating of the proposed
sound rating
MM -7
equipment, not to exceed an A- weighted sound
(adjacent to
Prior to issuance of
Building
pressure level of fifty (50) dBA or not to exceed an
residential areas)
building permit
Division
A- weighted sound pressure level of fifty -five (55)
during building plan
dBA and be installed with a timing device that will
check process
deactivate the equipment during the hours of
10:00 .m. to 7:00 a.m.
Population and Housing
No significant impacts are antici aled and no mitigation measures are required.
Public Services
No significant impacts are anticipated and no mitigation measures are re uired.
Recreation
No significant impacts are anticipated and no mitigation measures are required.
Traffic and Circulation
Prior to issuance of grading permits for the
proposed project by the long -term lease holder
and /or the redevelopment of the adjacent tennis
complex as proposed by the underlying property
owner, whichever occurs first, the circulation
conflict at Irvine Terrace /Country Club Drive
shall be resolved by one of the following
methods.
a. The proposed project shall be modified to
shift Country Club Drive approximately 30
feet to the south to accommodate the tennis
Submittal of
Planning
MM -8
complex redevelopment plan; or
modified circulation
Prior to issuance of
Division and
plan
grading permit
Public Works
b. The bungalow units proposed adjacent to
Department
the site on the north side of Country Club
Drive proposed by the property owner as
part of application PA 2005 -140 shall be
modified, reoriented, reduced, or shifted to
the north to avoid the road in its current
alignment; or
c. Some combination or modification of both
plans shall be devised that would reconcile
the discrepancy between the two plans.
Prior to the issuance of a grading permit, the
Planning
existing access easement shall be revised so as
Submittal of revised
Prior to issuance of
Division and
MM -9
to relocate its intersection with Irvine Terrace 85
access easement
grading permit
Public Works
feet northerly of where it currently exists. The
Department
new location shall be approved by the City
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Planning Commission Resolution No. _
Paae 14 of 25
SC /MM
Method of
Timing of
No.
Mitigation Measure
Verification
Implementation
Res onsibili
Traffic Engineer prior to recordation.
Prior to the issuance of a grading permit, the
applicant or Contractor shall submit a
Construction Staging, Parking and Traffic
Control Plan for approval by the Public Works
Department, which shall address issues
pertaining to potential traffic conflicts during
peak traffic periods, potential displacement of
on- street parking, and safety.
This plan shall identify the proposed
construction staging area(s), construction
crew parking area(s), estimated number and
types of vehicles that will occur during that
phase, the proposed arrival /departure
routes and operational safeguards (e.g.
flagmen, barricades, etc.) and hourly
restrictions, if necessary, to avoid traffic
conflicts during peak traffic periods and
ensure safety.
If necessary, the Construction Staging,
Approval of
construction
Prior to
Planning
MM -10
Parking and Traffic Control Plan shall
staging, parking
commencement of
Division and
provide for an off -site parking lot for
and traffic control
each major phase of
Public Works
construction crews which will be shuttled to
plan
construction
Department
and from the project site at the beginning
and end of each day until such time that the
project site can accommodate off - street
construction vehicle parking.
The plan shall identify all construction traffic
routes, which shall avoid narrow streets
unless there is no alternative, and the plan
shall not include any streets where some
form of construction is underway within or
adjacent to the street that would impact the
efficacy of the proposed route.
Dirt hauling shall not be scheduled during
weekday peak hour traffic periods.
The approved Construction Staging,
Parking and Traffic Control Plan shall be
implemented throughout each major
construction phase.
Utilities and Service Systems
No significant impacts are anticipated and no mitigation measures are required.
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Planning Commission Resolution No.
Paae 15 of 25
EXHIBIT "B"
REVISED TABLE LU2
ANOMALY LOCATIONS
Anomaly
I Statistical
I Land Use
I Development
Numberl
Area
IDesignattonj
Limit (so
Development Limit
the City of Newport Beach, and related
74
L1
PR
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City Hall, and the administrative offices of
75
L1
PF
the City of Newport Beach, and related
parking, pursuant to Section 425 of the
City Charter.
1.0 FAR permitted, provided all four legal
76
H1
CO -G
0.5 FAR
lots are consolidated into one parcel to
provide unified site design
77
H4
CV
240,000
157 Hotel Rooms (included in total
square footage)
78
B5
CM
139,840
Development limit of 19,905 sq.ft.
79
H4
CG
0.310.5
permitted, provided all six legal lots are
consolidated into one parcel to provide
unified site desion
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Planning Commission Resolution No. _
Page 16 of 25
IWA011- 111iiiNti
NEWPORT BEACH COUNTRY CLUB
PLANNED COMMUNITY DEVELOPMENT PLAN
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Planning Commission Resolution No. _
Pane 17 of 25
'i11�
CONDITIONS OF APPROVAL
(Project- specific conditions are in italics)
COMMUNITY DEVELOPMENT DEPARTMENT
1. Development shall be in substantial conformance with Site Development Review No.
SD2011 -003 and Limited Term Permit No. XP2011 -005, stamped and dated with the
date of this approval (Except as modified by applicable conditions of approval.)
2. Site Development Review No. SD2011 -003 is approved for the golf course and the
construction of an approximately 54,820 square -foot golf clubhouse with the associate
parking lot and maintenance facility.
3. Limited Term Permit No. XP2011 -005 is approved for the use of three (3) temporary
modular buildings to accommodate on -going golf course%lub operation during the 36-
month construction of new golf clubhouse. The modular buildings shall be located on
the golf course, shall not interfere with the construction activities or parking, and shall
be removed from the golf course site upon completion /occupancy of the new
clubhouse.
4. Site Development Review No. SD2011 -003 and Limited Term Permit No. XP2011 -005
shall expire unless exercised within the term of Development Agreement No. 2010 -005,
unless an extension is otherwise granted.
5. The preferred parking lot design eliminates the frontage road that provides access from
the entry driveway to the Armstrong Nursery property to the west of the project site shall
be eliminated as shown in Exhibit A2C dated September 19, 2011. In the event that the
applicant must provide frontage road due to private easement obligations, the parking lot
shall be designed in conformance with Attachment PC4 of the November 17, 2011,
Planning Commission Staff Report, including vehicle access be limited to one -way east-
bound movements.
6. Any substantial change to the approved plans, shall require an amendment to Site
Development Review No. SD2011 -003 and /or Limited Term Permit No. XP2011 -005
or the processing of new permits.
7. A minimum of 334 parking spaces shall be provided and maintained for the Golf Course
and its clubhouse. The design of the parking lot may be modified provided it meets
applicable safety and design regulations or standards as determined by the City Traffic
Engineer. The final parking lot layout including the orientation of the drive aisles and
parking spaces shall be subject to the review and approval by the Community
Development Director, with appropriate notification to the Planning Commission and City
Council.
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Planning Commission Resolution No. _
Paae 18 of 25
8. The applicant shall comply with all federal, state, and local laws. Material violation of
any of those laws in connection with the use may be cause for revocation of this Use
Permit.
9. The project is subject to all applicable City ordinances, policies, and standards, unless
specifically waived or modified by the conditions of approval.
10. Should this business or property be sold or otherwise come under different ownership,
any future owners or assignees shall be notified in writing of the conditions of this
approval by the current owner or leasing company.
11. This Site Development Review and Limited Term Permit may be modified or revoked
by the City Council or Planning Commission should they determine that the proposed
development, uses, and/ or conditions under which it is being operated or maintained
is detrimental to the public health, welfare or materially injurious to property or
improvements in the vicinity or if the property is operated or maintained so as to
constitute a public nuisance.
12. Prior to the issuance of building permits, the applicant shall submit a landscape and
irrigation plan prepared by a licensed landscape architect. These plans shall
incorporate drought tolerant plantings and water efficient irrigation practices, and the
plans shall be approved by the Planning Division and the Municipal Operations
Department. All planting areas shall be provided with a permanent underground
automatic sprinkler irrigation system of a design suitable for the type and arrangement
of the plant materials selected. The irrigation system shall be adjustable based upon
either a signal from a satellite or an on -site moisture - sensor. Planting areas adjacent
to vehicular activity shall be protected by a continuous concrete curb or similar
permanent barrier. Landscaping shall be located so as not to impede vehicular sight
distance to the satisfaction of the Traffic Engineer.
13. All landscape materials and landscaped areas shall be installed and maintained in
accordance with the approved landscape plan. All landscaped areas shall be
maintained in a healthy and growing condition and shall receive regular pruning,
fertilizing, mowing and trimming. All landscaped areas shall be kept free of weeds and
debris. All irrigation systems shall be kept operable, including adjustments,
replacements, repairs, and cleaning as part of regular maintenance.
14. Prior to the issuance of a certificate of occupancy, the applicant shall schedule an
inspection by the Planning Division to confirm that all landscaping was installed in
accordance with the approved plan.
15. Reclaimed water shall be used for all landscape areas to the maximum extent
practicable recognizing that potable water is necessary in some areas of the golf
course. Water for landscaped areas shall be used in accordance with the agreement
between the Orange County Water District, the City of Newport Beach, and the
Newport Beach Country Club, dated December 18, 1996. Potable water may be used
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Planning Commission Resolution No. _
Page 19 of 25
consistent with approvals from the City of Newport Beach, at mutually agreeable
times.
16. Water leaving the project site due to over - irrigation of landscape shall be minimized to
maximum extent feasible.
17. Watering of landscape areas shall be done during the early morning or evening hours
(between 4:00 p.m. and 9:00 a.m.).
18. Water shall not be used to clean paved surfaces such as sidewalks, driveways,
parking areas, etc. except to alleviate immediate safety or sanitation hazards.
19. Prior to issuance of any permit for development, approval from the California Coastal
Commission shall be required.
20. All noise generated by the proposed use shall comply with the provisions of Chapter
10.26 . and other applicable noise control requirements of the Newport Beach Municipal
Code. The maximum noise shall be limited to no more than depicted below for the
specified time periods unless the ambient noise level is higher:
21. Construction activities shall comply with Section 10.28.040 of the Newport Beach
Municipal Code, which restricts hours of noise - generating construction activities to
between the hours of 7:00 a.m. and 6:30 p.m., Monday through Friday and 8:00 a.m.
and 6:00 p.m. on Saturday. Noise - generating construction activities are not permitted
outside of these hours or on Sundays or Holidays.
22. The applicant shall ensure that the trash dumpsters and /or receptacles are maintained
to control odors. This may include the provision of either fully self- contained dumpsters
or periodic steam cleaning of the dumpsters, if deemed necessary by the Community
Development Department. Cleaning and maintenance of trash dumpsters shall be
done in compliance with the provisions of Title 14, including all future amendments
(including Water Quality related requirements).
23. Storage outside of buildings or within the parking lot of the property shall be prohibited,
with the exception of the required trash container enclosure. Outdoor storage of golf
course - related equipment and supplies shall be permitted within the screened
maintenance yard.
24. A Special Event Permit is required for any event or promotional activity outside the
Tmplt: 03/08!11
Between the hours of 7:OOAM
and 10:OOPM
Between the hours of
10:OOPM and 7:OOAM
Location
Interior
Exterior
Interior
Exterior
Residential Property
45dBA
55dBA
40dBA
50dBA
Residential Property located within
100 feet of a commercial property
45dBA
60dBA
45dBA
50dBA
Mixed Use Property
45dBA
60dBA
45dBA
5OdBA
Commercial Property
N/A
65dBA
N/A
60dBA
21. Construction activities shall comply with Section 10.28.040 of the Newport Beach
Municipal Code, which restricts hours of noise - generating construction activities to
between the hours of 7:00 a.m. and 6:30 p.m., Monday through Friday and 8:00 a.m.
and 6:00 p.m. on Saturday. Noise - generating construction activities are not permitted
outside of these hours or on Sundays or Holidays.
22. The applicant shall ensure that the trash dumpsters and /or receptacles are maintained
to control odors. This may include the provision of either fully self- contained dumpsters
or periodic steam cleaning of the dumpsters, if deemed necessary by the Community
Development Department. Cleaning and maintenance of trash dumpsters shall be
done in compliance with the provisions of Title 14, including all future amendments
(including Water Quality related requirements).
23. Storage outside of buildings or within the parking lot of the property shall be prohibited,
with the exception of the required trash container enclosure. Outdoor storage of golf
course - related equipment and supplies shall be permitted within the screened
maintenance yard.
24. A Special Event Permit is required for any event or promotional activity outside the
Tmplt: 03/08!11
Planning Commission Resolution No. _
Page 20 of 25
normal operational characteristics of the approved use, as conditioned, or that would
attract large crowds, involve the sale of alcoholic beverages, include any form of on-
site media broadcast, or any other activities as specified in the Newport Beach
Municipal Code to require such permits.
25. All proposed signs shall be in conformance with the provision of the Newport Beach
Country Club Planned Community Development Plan and Chapter 20.42 of the
Newport Beach Municipal Code and shall be reviewed and approved by the City
Traffic Engineer if located adjacent to the vehicular ingress and egress.
26. The final location of the signs shall be reviewed by the City Traffic Engineer and shall
conform to City Standard 110 -L to ensure that adequate vehicular sight distance is
provided.
27. Lighting shall be in compliance with applicable standards of the Newport Beach Country
Club Planned Community Development Plan and Section 20.30.070 of the Newport
Beach Municipal Code. Exterior on -site lighting shall be shielded and confined within
site boundaries. No direct rays or glare are permitted to shine onto public streets or
adjacent sites or create a public nuisance. "Walpak" and up- lighting type fixtures are
not permitted. Parking area lighting shall have zero cut -off fixtures.
28. The site shall not be excessively illuminated based on the outdoor lighting standards
contained within Section 20.30.070 of the Zoning Code, or, if in the opinion of the
Community Development Director, the illumination creates an unacceptable negative
impact on surrounding land uses or environmental resources. The Community
Development Director may order the dimming of light sources or other remediation
upon finding that the site is excessively illuminated.
29. Prior to the issuance of building permits the applicant shall prepare photometric study
in conjunction with a final lighting plan for approval by the Planning Division. The
survey shall show that lighting values are 1" or less at all property lines.
30. Prior to issuance of the certificate of occupancy or final of building permits the
applicant shall schedule an evening inspection by the Code Enforcement Division to
confirm control of all lighting sources.
31. Kitchen exhaust fans shall be installed /maintained in accordance with the Uniform
Mechanical Code and with pollution control units to filter and control odors.
32. The construction and equipment staging area shall be located in the least visually
prominent area on the site and shall be properly maintained and /or screened to
minimize potential unsightly conditions.
33. A screen and security fence that is a minimum of six feet high shall be placed around
the construction site during construction.
34. Construction equipment and materials shall be properly stored on the site when not in
use.
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Planning Commission Resolution No. _
Page 21 of 25
35. Prior to the issuance of any building permit, the applicant shall pay any unpaid
administrative costs associated with the processing of this application to the Planning
Division.
36. To the fullest extent permitted by law, applicant shall indemnify, defend and hold
harmless City, its City Council, its boards and commissions, officials, officers, employees,
and agents from and against any and all claims, demands, obligations, damages,
actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and
expenses (including without limitation, attorney's fees, disbursements and court costs) of
every kind and nature whatsoever which may arise from or in any manner relate (directly
or indirectly) to City's approval of the Newport Beach Country Club development
including, but not limited to General Plan Amendment No. GP2008 -005, Planned
Community Development Plan Amendment No. PC2008 -001, Development
Agreement No. DA2010 -005, Limited Term Permit No. XP2011 -005, Mitigated
Negative Declaration No. ND2010 -010, and Site Development Review No. SD2011-
003.This indemnification shall include, but not be limited to, damages awarded against
the City, if any, costs of suit, attorneys' fees, and other expenses incurred in connection
with such claim, action, causes of action, suit or proceeding whether incurred by
applicant, City, and /or the parties initiating or bringing such proceeding. The applicant
shall indemnify the City for all of City's costs, attorneys' fees, and damages which City
incurs in enforcing the indemnification provisions set forth in this condition. The applicant
shall pay to the City upon demand any amount owed to the City pursuant to the
indemnification requirements prescribed in this condition.
37. The applicant is required to obtain all applicable permits from the City's Building Division
and Fire Department. The construction plans must comply with the most recent, City -
adopted version of the California Building Code. The construction plans must meet all
applicable State Disabilities Access requirements. Approval from the Orange County
Health Department is required prior to the issuance of a building permit.
38. Prior to the issuance of grading permits, a Storm Water Pollution Prevention Plan
(SWPPP) and Notice of Intent (NOI) to comply with the General Permit for
Construction Activities shall be prepared, submitted to the State Water Quality Control
Board for approval and made part of the construction program. The project applicant
will provide the City with a copy of the NOI and their application check as proof of filing
with the State Water Quality Control Board. This plan will detail measures and
practices that will be in effect during construction to minimize the project's impact on
water quality.
39. Prior to issuance of grading permits, the applicant shall prepare and submit a Water
Quality Management Plan (WQMP) for the proposed project, subject to the approval of
the Building Division and Code and Water Quality Enforcement Division.. The WQMP
shall provide appropriate Best Management Practices (BMPs) to ensure that no
violations of water quality standards or waste discharge requirements occur.
40. The applicant shall comply with SCAQMD Rule 403 requirements as follows:
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Planning Commission Resolution No. _
Paqe 22 of 25
Land Clearing /Earth - Moving
a. Exposed pits (i.e., gravel, soil, dirt) with five percent or greater silt content shall
be watered twice daily, enclosed, covered, or treated with non -toxic soil
stabilizers according to manufacturers' specifications.
b. All other active sites shall be watered twice daily.
C. All grading activities shall cease during second stage smog alerts and periods
of high winds (i.e., greater than 25 mph) if soil is being transported to off -site
locations and cannot be controlled by watering.
d. All trucks hauling dirt, sand, soil, or other loose materials off -site shall be
covered or wetted or shall maintain at least two feet of freeboard (i.e., minimum
vertical distance between the top of the load and the top of the trailer).
e. Portions of the construction site to remain inactive longer than a period of three
months shall be seeded and watered until grass cover is grown or otherwise
stabilized in a manner acceptable to the City.
f. All vehicles on the construction site shall travel at speeds less than 15 mph.
g. All diesel - powered vehicles and equipment shall be properly operated and
maintained.
h. All diesel - powered vehicles and gasoline - powered equipment shall be turned off
when not in use for more than five minutes.
The construction contractor shall utilize electric or natural gas - powered
equipment instead of gasoline or diesel - powered engines, where feasible.
Paved Roads
k. All construction roads internal to the construction site that have a traffic volume
of more than 50 daily trips by construction equipment, or 150 total daily trips for
all vehicles, shall be surfaced with base material or decomposed granite, or
shall be paved.
I. Streets shall be swept hourly if visible soil material has been carried onto
adjacent public paved roads.
M. Construction equipment shall be visually inspected prior to leaving the site and
loose dirt shall be washed off with wheel washers as necessary.
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Planning Commission Resolution No.
Paqe 23 of 25
Unpaved Staging Areas or Roads
n. Water or non -toxic soil stabilizers shall be applied, according to manufacturers'
specifications, as needed to reduce off -site transport of fugitive dust from all
unpaved staging areas and unpaved road surfaces.
FIRE DEPARTMENT
41. Automatic fire sprinklers shall be required for all new construction that exceeds 5,000
square feet in size, is located more than 150 feet from an approved fire access road,
and /or based on occupancy classification. The sprinkler system shall be monitored by
a UL certified alarm service company.
42. All buildings may require a fire alarm system depending upon occupancy classification.
43. Fire hydrant(s) shall be provided every 300 feet along fire access road. The number
and location of the fire hydrant shall be determined by the Fire Department.
44. Any automatic gates shall require a "Knox" key switch and an approved remote
opening device. Minimum width of access shall be 14 feet.
45. All elevators shall be gurney accommodating.
46. The use 'or storage of portable propane heaters is prohibited. Heaters for future
outdoor areas shall be fixed and plumbed with natural gas.
MUNICIPAL OPERATIONS DEPARTMENT
47. The applicant shall conduct a cross - connection shut down test annually with the
Orange County Health Department, City and State Health Department due to recycled
water on the premises. Documentation of successful tests shall be submitted to the
Municipal Operation Department within 30 days of the test.
PUBLIC WORKS DEPARTMENT
48. All runoff discharges shall comply with the City's water quality and on -site non -storm
runoff retention requirements.
49. Traffic signal modifications may be needed to the existing traffic signal at the
intersection of Irvine Terrace /East Coast Highway due to the modified main entry,
including but not limited to new traffic signal poles, loop detection, conduit, striping,
etc. The applicant is responsible for costs associated with the design and installation
of all traffic signal modification improvements. The limits and extent of work will be
determined based on the final approved Irvine Terrace /Coast Highway entry
configuration.
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Planning Commission Resolution No.
Paae 24 of 25
50. All on -site drainage, sanitary sewer, water, and electrical systems shall be privately
owned, operated, and maintained.
51. The parking lot and vehicle circulation system shall be subject to further review by the
City Traffic Engineer. Parking lot layout shall comply with City Standard STD - 805 -L -A
and STD - 805 -L -B. Main driveways, service access, and driveways to parking areas
shall be controlled by appropriate signage (i.e. stop signs).
52. All improvements shall be constructed as required by Ordinance and the Public Works
Department.
53. The intersection of the public streets, internal roadways, and drive aisle shall be
designed to provide adequate sight distance per City of Newport Beach Standard
Drawing STD - 110 -L. Slopes, landscaping, walls, signs, and other obstructions shall
be considered in the sight distance requirements. Landscaping within the sight lines
(sight cone) shall not exceed 24- inches in height and the monument identification sign
must be located outside the line of sight cone. The sight distance may be modified at
non - critical locations, subject to approval by the Traffic Engineer.
54. An encroachment permit is required for all construction activities within the public right -
of -way.
55. An encroachment agreement is required for all private encroachments in the public
right -of -way. All private encroachments shall comply with City Council Policy L -6,
Private Encroachments in the Public Right -of -Way.
56. Any damage to public improvements within the public right -of -way attributable to on-
site development may require additional reconstruction within the public right -of -way at
the discretion of the Public Works Inspector.
57. ADA compliant curb ramps shall be installed at all intersections on Irvine Terrace,
Coast Highway and within the interior parking area.
58. The domestic water supply shall have a separate water meter and back flow
preventer. The domestic water proposed off of the water main on Irvine Terrace shall
have a water meter and back flow preventer. Identify the size of the proposed
domestic water line.
MITIGATION MEASURES
59. The applicant shall comply with all mitigation measures and standard conditions
contained within the approved Mitigation Monitoring and Reporting Program of the
adopted Mitigated Negative Declaration (Exhibit "A ") for the project.
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Planning Commission Resolution No.
Paae 25 of 25
EXHIBIT "E"
DEVELOPMENT AGREEMENT
Tmplt 03108/11
Attachment No. PC 2
Draft Planned Community Development
Plan Amendment
Newport Beach Country Club
Planned Comm unity.-Development
Ordinance No.
Adopted
TABLE OF CONTENTS
1.0 Introduction and Purpose ................................................................................ 4
2.0 General Conditions and Regulations ............................................................... 5
3.0 Land Use and Development Regulations ............................................... ........ 10
31 Golf Club ... 10
A Golf C ,,. 10
B Golf Clubhouse and Ancillary ij ... 10
1 Building Area ... 10
2 Building Height ..� 1�
� Permitted /D i�� 1 ..� 1�
4
^P rki .. � .^...~ � �
� Fencing ..,.
3.2 Tennis Club ' ^^^^^.�r�^^^
A. Tennis Courts .............
1111 1 1
11
1 Number of Courts ............ 11
B Tennis Cl bh ................... 12
1 Building Area ............� 1�
2 Building Height .............. 17
�r
3 Permitted A ill _....... ;........................ 17 ix
4 P .. ................... 12
�� T� ��i� ...�r..................... 12
1 .......~...,.—.......... 17
2' 12
34 Tll F\ ........................... 13
............................... 13
Uses....................... .................................... 13
.............,.................,.. 14
...................................� 1/�
ac kS...................................................................... 14
........ ........ ................ ...... ........................................... 14
3.5 ..................................�... 14
/\ ...................................... 14
F< i [ds............................................................................... 15
4.0 Site Develop hD8nt Review ............................................................................... 16
4.1 Purpose ................ ............................................................................... 16
4.2 /\pp|icatiVD......................................---.. 16
4.3 FiOdiDg8............................................ 18
4.4 [|VUteDtS...,..'.---.--............................... 17
4.5 Public Hearing — Required Notice ........................................................ 17
4.6 Expiration and Revocation Site Plan Review Approvals ....................... 18
4.7 Fees ................................... ................................................................ 18
2
LIST OF EXHIBITS
Exhibit Name Exhibit Number
VicinityAerial Map ................................................................. ............................... A
Conceptual Master Site Plan ................................................. ............................... B
LIST OF TABLES
Table Name
Page
The Villas Development Standards... ......... ............ 13
E
1.0 INTRODUCTION AND PURPOSE
The Newport Beach Country Club Planned Community District (the PCD) is composed
of the Golf Club, Tennis Club, Bungalows and Villas facilities, totaling approximately 145
acres. The PCD has been developed in accordance with the Newport Beach General
Plan and is consistent with the Local Coastal Land Use Plan.
The purpose of this PCD is to provide for the classification ,and development of
coordinated, cohesive, comprehensive planning project with''limited mixed uses,
including the private Golf Club, Tennis Club, 27 short term rental units called the
Bungalows with a spa /fitness area, and 5 semi - custom single unit residential dwellings
called the Villas.
Whenever the regulations contained in the PCD
of the Newport Beach Municipal Code, the
Regulations shall take precedence. The Newpo
all development within the PCD when such regu
Regulations.
0
conflict
;ipal Code
provided \
regulations
the PCD
A regulate
in the PCD
2.0 GENERAL CONDITIONS AND REGULATIONS
1. Alcoholic Beverage Consumption
The consumption of alcoholic beverages within the PCD shall be in compliance with the
State of California Department of Alcoholic Beverage Control and the Newport Beach
Municipal Code. A use permit shall be required if the establishment operates past 11:00
p.m. any day of the week and a minor use permit shall be required if the establishment
operates until 11:00 p.m. any day of the week.
2. Amplified Music
All amplified music played after 10:00 p.m. within t
interior of a building unless a Special Events Permit
3. Archaeological /Paleontological Resources
Development of the site is subject to the provisions
regarding archaeological and paleontological resoui
4. Architectural Design
shall 66 "confined within the
ned.
Council Policies K -5 and K -6
All development shall be designed with high quality architectural standards and shall be
compatible with the surrounding uses The_developmenf should be well- designed with
coordinated, cohesive`archife6t tre and exhibiting the highest level of architectural and
landscape quality -i- keeping with the PCD s 'prominent location in the Newport Center
Planning Area. Massing ;offsets, variation of.roof lines, varied textures, openings,
recesses, and design accents on aIlf%uildmg- `elevations shall be provided to enhance
the arch itectu—,rzaF4s rchitectural treaf "ments for all ancillary facilities (i.e. storage,
truck loading and unloaclag, and <tash enclosures) shall be provided.
5.
Construction shall comply Vrth applicable provisions of the California Building Code and
the various other mechanical, electrical and plumbing codes related thereto as adopted
by the Newport Beath Municipal Code.
6. Exterior
There shall be no exterior storage areas permitted with the exception of the
greenskeeper /maintenance area which shall be enclosed by a minimum six foot
plastered block wall.
7. Flood Protection
Development of the subject property will be undertaken in accordance with the flood
protection policies of the City.
8. Grading and Erosion Control
Grading and erosion control measures shall be carried out in-accordance with the
provisions of the Newport Beach Excavation and Grading Code and; shall be subject to
permits issued by the Community Development Department
9. Gross Floor Area
Gross floor area shall be defined as the total area of a building, including the
surrounding exterior walls.
10. Height and Grade
The height of any structure within .the
otherwise specified. The height of a strut
highest point of the structure and the grad
sloped roof, the measurement shall be th
midpoint of the roof plane, provided that
five (5) feet above the permitted heu
amendments shall , be subject to the
Development Directbr
11.
Flit:
development, reduce h
adjacent land uses, and
consist of a cornbinatioi
Landscaping shall;}tbe F
Water- Efficient LaidscE
installed in accordance
landscape architect:''
12. Lighting — Outdoor
PCD shall not exceed fifty (50) feet, unless
ture shall be the vertical distance between the
e directly below. In determining the height of a
e vertical distancehetween the grade and the
no part of ttie roof shall be extend more than
Iht,=in the height limitation zone, and any
review and approval of the Community
on shall__be provided in all areas not devoted to structures,
walkways,'and tennis courts to enhance the appearance of the
gat -and glare, control soil erosion, conserve water, screen
)reserve the integrity of PCD. Landscaping and irrigation shall
of trees, shrubs, groundcover and hardscape improvements.
epared in accordance with the Landscaping Standards and
Sing Sections of the Newport Beach Municipal Code and
with the approved landscape plans prepared by a licensed
All new outdoor lighting shall be designed, shielded, aimed, located and maintained to
shield adjacent uses /properties and to not produce glare onto adjacent uses /properties.
Lighting plans shall be prepared in compliance with the Outdoor Lighting Section of the
Newport Beach Municipal Code and shall be prepared by a licensed electrical
R
engineer. All lighting and lighting fixtures that are provided shall be maintained in
accordance with the approved lighting plans.
13. Lighting — Parking & Walkways
All lighting and lighting fixtures that are provided shall be maintained in accordance with
the approved lighting plans. Light standards within parking lots shall be the minimum
height required to effectively illuminate the parking area and eliminate spillover of light
and glare onto adjoining uses /properties and roadways.
Parking lots and walkways accessing buildings shall be illuminated with a minimum of
0.5 foot - candle average on the driving or walking surface during the hours of operation
and one hour thereafter. Lighting plans shall be prepared 'in compliance with the
Outdoor Lighting Section of the Newport Beach Municipal: Code and all be prepared
by a licensed electrical engineer.
If the applicant wishes to deviate from thislighting standard, a lighting plan may be
prepared by the applicant and submitted to the Community Developmerrt Director for
review and approval.
14. Loading Areas for Non - Reside
All loading and unloading of goods
platforms and areas shall be screened
15. Parking Areas
onsite. Loading
Parking spaces, driveways, maneuvering aisles, turnaround areas, and landscaping
areas of the parking lots sKall be kept free of "dust, graffiti, and litter. All components of
the parking areas .including striping, paving, wheel stops, walls, and light standards of
the parking lots shall be permanently maintained in good working condition. Access,
location, parking space and lot dimensions, and parking lot improvements shall be in
compliancy -with the DevefQ,pment"Standards for Parking Areas Section of the Newport
Beach Municipal Code
16. Property
Written property owner approval shall be required for the submittal of any site
development review' application and /or prior to grading and /or building permit issuance.
17. Outdoor Paging
Outdoor paging shall be permitted at the Golf Club to call individuals to the tees and at
the Tennis Club to call points during tennis tournaments.
7
18. Sewage Disposal
Sewage disposal service facilities for the PCD will be provided by Orange County
Sanitation District No. 5 and shall be subject to applicable regulations, permits and fees
as prescribed by the Sanitation District.
19. Screening of Mechanical Equipments
All new mechanical appurtenances (e.g., air conditioning
exhaust vents, swimming pool and spa pumps and filters,
emergency power generators) shall be screened from -1
uses. The enclosure design shall be approved by`,
Department. All rooftop equipment (other than vents
architecturally treated or screened from off -site views in
building materials prior to final building permit;-, iearanc
building. The mechanical appurtenances shall be subjec
with the Exterior Noise Standards Section of the Ne
Rooftop screening and enclosures shall be subject to the
20. Screening of the Villas from
ntilation ducts and
s, utility vaults and
and adjacent land
inity Development
tes, etc.) shall be
a manner compatible with the
e for each ri w'or re
t to sound rating m ac<
wpott Beach Municipi
applicable height limit.
Code.
Adequate buffering between the Villas and tennis courts shall be provided and subject
to the Site Development Review process: The exterior, perimeter of the tennis courts
facing Granville Condominiums, Granville Drive, and the Tennis Clubhouse parking lot
shall be screened by-,"a m'iinrrium ten foot 4high chain link fence covered by a wind
screen. Wind screen shall be maintained in good condition at all time.
21. Screening of the Villas'Pool %Spa Equipment
All pool and /or spa equipment shall be enclosed by a minimum five -foot high block wall
plastered, or otherwise t red to match the building.
22. Spec
Temporary spec ial�commi6nity events, such as such as PGA Senior Classic golf
tournaments, Team =Termis , Davis Cup Matches, and other similar events, are permitted
in the PCD, and are subject to the Special Events Chapter of the Newport Beach
Municipal Code. Temporary exterior storage associated with approved special events
may be permitted provided it is appropriately screened and regulated with an approved
Special Event Permit.
E
23. Temporary Structures and Uses
Temporary structures and uses, including modular buildings for construction - related
activities are permitted.
24. Trash Container Storage for Residential Dwellings-
Trash container storage shall be out of view from public
in the required parking areas. If trash container storage
public view, they shall be screened from public view. S<
walls, and landscaping to a height at least 6 inches abov
25. Trash Enclosures for Non - Residential Uses
All trash enclosures for non - residential uses shall be p
the Solid Waste and Recyclable Materials - Storage of
Code.
26. Tennis Club Site Phasing
The phasing plan for the tennis club
bungalows shall be subject to a site di
27. Water Service
Water service to.the PCD will be provided
subject to applicable regulations,_permits and
0
!pd may not be located
annot be located out of
shall consist of fences,
is of the containers.
:d and in accordance with
Newport Beach"- Municipal
tennis club, villas and
City of Newport Beach and will be
as prescribed by the City.
3.0 LAND USE AND DEVELOPMENT REGULATIONS
3.1 Golf Club
Refer to Exhibit B - Conceptual Master Site Plan for the general location and
placement of the golf course and clubhouse.
A. Golf Course
An 18 -hole championship golf course and
driving range, snack bar, starter shack, rests
B. Golf Clubhouse and Ancillary
1. Building Area
The maximum allowable gross floor areg
shall be 3588856 000 -,square feet, exclu
storage areas ramp and washing area. T
buildings, snack bar, separate" golf cou
shack, and similar ancillary.abuildmgs are
limit. 1�
2.
(i.e. putting green,
for a golf clubhouse building
iye of any enclosed golf cart
greens keeper /maintenance
,e r`estroom facilities, starter
xempt from this development
The maximum allowable building height for the Golf Clubhouse shall be 50
feet and shall be measured in accordance with the Height and Grade
definition of Se ction 2.0 General Conditions and Regulation of the PCD.
3.
uses are allowed:
• Auvir snow"
• Ad`minist`rative Offices
• Dining, and event areas
• Kitchen & Bar areas
• Banquet Rooms
• Men and Women's Card Rooms
• Health and fitness facility
• Restroom and Locker facilities
• Golf Club storage areas
• Employee lounge /lunch areas
• Meeting rooms
10
3.2
• Golf Cart Parking Storage and Washing Area
• Separate Snack Bar
• Separate Starter Shack
• Separate Golf Course Restrooms
• Hand Carwash Area
• Greenskeeper Maintenance Facility
• Temporary Construction Facilities
• Guard House
• Others (subject to an approval of the C
Director)
4. Parkin
ity Development
Parking for the Golf Course and Golf Clubhouse sh6V%e in accordance
with following parking ratios (source: from Table 2 of theyCjrculation and
Parking Evaluation by Kimley- Horn'and Associates, Inc., September 2009
for Newport Beach Country Club Clubhouse Improvement Project):
Golf Course: 8 spaces,per hole
Golf Clubhouse:
Dining, assembly &, m
square feet
Administrative Office 4,.
Pro"Shop 4,Yper 1,000 s
�,;Iulaintenance Facility: 2
Health andzyitness Faci
3 seats or 1 per 35
1,000 °560are feet
re feet ""
1,000 square feet
4 =per 1,000 square feet
The design of.the parkrng;;lot and orientation of vehicular aisles and
parking yspaces` shall be subject to the review and approval of the City
Traffic Enoineer and�C,ommunity Development Director.
Golf ,,Course `perimeter fencing shall be wrought -iron with a maximum
per`m.tted height of six (6) feet.
Refer to Exhibit B - Conceptual Master Site Plan for the general location and
placement of the tennis courts and clubhouse.
A. The Tennis Courts
1. Number of courts
11
kWl
The maximum allowable tennis courts shall be seven lighted tennis courts
(six lighted championship courts and one lighted stadium - center court).
B. Tennis Clubhouse and Ancillary Uses
1. Building Area
The maximum allowable gross floor area for the Tennis Clubhouse shall
be 3,725 square feet.
2. Building Height_
The maximum allowable building height for the Tennis, Clubhouse shall be
30 feet, and shall be measured in accordance with the- Height and Grade
definition of Section 2.0 General Conditions and Regulatigns of the PCD.
3. Permitted Ancillary Uses
The following ancillary uses are allowed;
• Tennis Shop
• Administrative Offices
• Concessions
• Restroom.and Locker facilities
• Storage areas-
• Spectator seating
• Others ;_(subject to an app`r_oyal of the Community Development
Director)
Parking for�,the Tennls°Clubhouse and Courts shall be a minimum of 28
Refer to Exhibit=,--8 - Conceptual Master Site Plan for the general location and
placement ofjhe villas.
1. Number of Units
The maximum allowable number of single - family residential units shall be five (5).
2. Development Standards
The following development standards shall apply to the Villas:
12
The Villas Development Standards Table
Villa
Villa A
Villa B
Villa C
Villa D
Villa E
Designation
Lot
TTM Lot #1
TTM Lot #2
TTM Lot #3
TTM Lot #4
##5M
Lot Size
5,000 square feet minimum
Lot Coverage
65%
55%
40%
55%
(Maximum)
70%
Building Height
39 feet, measured in accordance with the„Height and Grade
definition of Section 2.0 General Conditions and Regulations
Building Side Yard
3 feet mmimuro :..
Setbacks
_
Building Front and
Rear Yard
-.5 feet minimum
Setbacks
Enclosed Parking
Space for Each
2
2
3
3'F
2
Unit
Open Guest
One space.- could be located on the private driveway — No
Parking Space for
over to the private street/cul-de-sac is allowed
Each Unit
3.4. The Bungalows
Refer to Exhibit .
placement of the
1. - ",Number o
The follovM6 an,
B - Conceptual Master Site Plan for the general location and
bpngaloyvs, concierge'and guest center, and spa facility.
ale number of the Bungalows shall be 27 short -term guest
in a clustered setting of single and two -story buildings.
uses are allowed:
• Concierge office and guest meeting facility
• Swimming pool and Jacuzzi
• Spa facility that includes treatment rooms, fitness areas, and snack bar
serving drinks, snacks and light breakfast and lunch items
13
3.5
3. Building Area
The maximum allowable gross floor area for the bungalows shall be 28,300
square feet with a 2,200 square foot concierge & guest center and a 7,500
square -foot spa facility.
4. Building Height
The maximum allowable building height for the
measured in accordance with the Height and G
General Conditions and Regulations of the PCD.
5. Building Setbacks
The setback requirement shall be a
6. Parking
Parking for the bungalows shall be a m
proximity to the use.
Signs
A. Sign Allowance
shall be 31 feet,
>n of Section 2.0
from anvprooertv line.
34 parking spaces located in
1. One (1) ,single or `double- faced, ground- mounted entrance
1d'entificati(Wsign shall b ,allowed at Newport Beach Tennis Club's
mam entrance (Country Club Drive and Irvine Terrace). Total
maximum- signage� area shall not exceed seventy -five (75) square
et anti shall not exceed five (5) feet in height.
2. One -(1) single' or double- faced, ground- mounted entrance
,..
identification sign shall be allowed at or near the vicinity of the
Newyork Beach Country Club's secondary entrance (Granville).
Total maximum signage area shall not exceed seventy -five (75)
square feet and shall not exceed five (5) feet in height.
3. Building identification signs shall be allowed; one for each street
-frontage. If freestanding, this sign type shall not exceed a maximum
height of five (5) feet in height. The maximum signage area shall
not exceed seventy (70) square feet.
4. Vehicular and pedestrian directional signs shall be allowed. This
sign type may occur as a single -faced or double -faced sign. The
sign shall be sized to allow for proper readability given the number
of lines of copy, speed of traffic, setback off the road and viewing
14
distance. This sign type shall not exceed a maximum of six (6) feet
in height.
5. One (1) single or double faced, ground- mounted identification sign
shall be allowed at the entrance road to the Bungalows. Total
maximum signage area shall not exceed seventy -five (75) square
feet and shall not exceed five (5) feet in height and fifteen (15) feet
in length.
Sign Standards
1. The design and materials of all permanent, signs in the Newport
Beach Country Club Planned Community ,District shall be in
accordance with Sign Section 3.5, unless otherwise approved by
the Community Development lrrector.
2. All permanent signs shalFbe subject to a sign permit issued by the
Community Development Department ..
3. All signs shall be-subject to the review of the City Traffic Engineer
to ensure adequate, sight distance ,.,in accordance with the
provisions of the NQ'-W--
ewprt;;Beach Municipal =,Code.
4. Sign illumination is permitted for :all sign types. No sign shall be
constructed or installecj -to rota blink or move, or create
'9Y
the illusion of motion in any fashion.
5. All permanent signs together with the entirety of their supports,
braces,�_guys anchors, attachments and decor shall be properly
maintained, legible; functional and safe with regards to appearance,
"str'uctural integrity and electrical service.
6. Tempojrary sighs that are visible from any public right -of -way shall
be allowed up to a maximum of sixty (60) days and subject to a
temporary sign permit issued by the Community Development
Department.
7 1f the applicant wishes to deviate from the sign standards identified
herein, a comprehensive sign program may be prepared or a
modification permit application may be submitted for review and
consideration by the Zoning Administrator in accordance with the
applicable provisions of the Newport Beach Municipal Code.
15
4.0 SITE DEVELOPMENT REVIEW
4.1 Purpose
The purpose of the Site Development Review process is to ensure new
development proposals within the Newport Beach Country Club Planned
Community Development are consistent with the goals and policies of the
General Plan, provisions of this Planned Community Development Plan, the
Development Agreement and the findings set forth below in sub- section 4.3.
4.2 Application
An approval of Site Development Review, . application by the Planning
Commission shall be required for the construction of any new structure prior to
the issuance of a grading or building permit or issuance of an app Val in concept
for Coastal Commission. Signs, , tenant improvements to any existing" buildings,
kiosks, and temporary structures are exempt -from the. site development review
process and subject to the applicable City's DdGits. The decision of Planning
Commission is the final, unless.:appealed in accordance with the Newport Beach
Municipal Code.
4.3. Findings
In addition to the general - purposes set -forth in sub section 4.1 and in order to carry
out the purposes of this chapter his established by said section, the Site
Development Review procedures established by this Section shall be applied
according to and -W mpliance with the following findings:
1. _; The :developmer t. shall Urlfh9bompliance with all other provisions of the
Planned Community: District Plan;
r
2 The development shall be compatible with the character of the
neighboring uses and surrounding sites and shall not be detrimental to the
orderly and harmonious development of the surroundings and of the City;
3. The development shall be sited and designed to maximize the aesthetic
quality of the project as viewed from surrounding roadways and
properties, with special consideration given to the mass and bulk of
buildings and the streetscape on Coast Highway; and
16
4. Site plan and layout of buildings, parking areas, pedestrian and vehicular
access ways, landscaping and other site features shall give proper
consideration to functional aspects of site development.
4.4. Contents
The Site Development Review application shall include all of the information and
materials specified by the Community Development Director and any additional
information review by the Planning Commission in orderto conduct a thorough
review of the project in question. The following plans /exhibits may include, but
not limited to the following:
1. An aerial map showing the subject property, adtacent properties and
identifying their uses.
2. Comprehensive elevations
coordinated and comDlimen
for new "structures with
sign, materials and colors.
3. A parking and circulation plan showing � f cart and pedestrian paths in
addition to streets and fire lanes.
4. A comprehensive, cohesive and coordinated preliminary landscape plan.
5. A comprehensive, cohesive and coordinated" lighting plan showing type,
location and 616r. of all extenoeNighting fixtures.
6. Comprehensive text and graphics describing the design philosophy for the
architecture; ,landscape architecture, material and textures, color palette,
Text describing drainage and water quality mitigation measures.
A statement that the proposed new structure is consistent with the goals,
policies and ;actions of the General Plan and Planned Community
lopmentPlan.
4.5 Public`Hearing — Required Notice
A public hearing shall be held on all site development review applications. Notice
of such hearing shall be mailed not less than ten (10) days before the hearing
date, postage prepaid, using addresses from the last equalized assessment roll
or, alternatively, from such other records as contain more recent addresses, to
owners of property within a radius of three hundred (300) feet of the exterior
boundaries of the subject property. It shall be the responsibility of the applicant to
obtain and provide to the City the names and addresses of owners as required
by this Section. In addition to the mailed notice, such hearing shall be posted in
17
not less than two (2) conspicuous places on or close to the property at least ten
(10) days prior to the hearing.
4.6 Expiration and Revocation Site Development Review Approvals
1. Expiration. Any site development review approved in accordance with the
terms of this planned community development plan shall expire within
twenty -four (24) months from the effective date of final approval as
specified in the Time Limits and Extensions Section',of the Newport Beach
Municipal Code, unless at the time of approval,tte'Planning Commission
has specified a different period of time or an extension is otherwise
granted.
2. Violation of Terms. Any site dev
with the terms of this planned
revoked if any of the conditions ,
are violated or if any law or ordin
3. Public Hearing. The Planning Commis
any proposed revocation after giving
least ten (10) days ` pnor; to the
recommendations to the City Council.
within sixty (60) days after receipt of tt
Commission.
4.7. Fees
r approved in accordance
�velopment plan may be
i site development review
in connection- therewith.
§J. f1 shall hold a public hearing on
wntfen notice to the permittee at
he6,ri and shall submit its
The Cary = Council shall act thereon
s_ recommendation of the Planning
The applicant shall pay a fee as established by Resolution of the Newport Beach
City Council to the G,tty with each.appllic`ation for Site Development Review under
plan.
IF
Attachment No. PC 3
Alternative draft Planned
Community Development Plan
(Applicable to only the 133 -acre
Golf Club Site)
Newport Beach Country Club
Planned Community Development
Date: November 1
Ordinance No.
Adopted
TABLE OF CONTENTS
Page Number
1.0 Introduction and Purpose ................................................. ............................... 3
2.0 General Conditions and Regulations ................................ ...............................
4
3.0 Land Use and Development Regulations............ ......,.:
9
3.1 Golf Club ........................ ......................... .............................................
9
A. Golf Course .......... ............................... .............................
9
B. Golf Clubhouse and Ancillary Uses..... .: .......................
9
1. Building Area ................... ; ......... ....................
9
2. Building Height ................ ................
9
3. Permitted Ancillary Uses.. ......................
9
4. Parking ...............
°...... 10
5. Fencing ............... :.. ..... :.........
10
3.2 RESERVED
3.3 RESERVED >.
3.4 RESERVED
3.5 Signs ............................. :,. .........................
10
A. Sign Allowance ........ ....... _; .:.............................
10
B. Sign Standards ........ ... ...............................
11
4.0 Site Development Review ..... .. ......... " ........ ...............................
13
4.1 Purpose; ....... :........................... ...............................
13
4.2 Application .... ........ 4 .. ................... ...............................
13
......
4.3 Findings .............. ...................... ...............................
13
;.
4.4 Contents ............................. ...............................
14
4 5,; Public "Hearing- Required Notice ......................... ...............................
14
46 Expiration and Revocation Site Plan Review Approvals .......................
15
4 7.,_ Fees .. - ` ' , ........................................ ...............................
15
LIST OF EXHIBITS
Exhibit Name Exhibit Number
VicinityAerial Map ................................................................. ............................... A
Conceptual Master Site Plan ................................................. ............................... B
2
1.0 INTRODUCTION AND PURPOSE
The Newport Beach Country Club Planned Community District (PCD) is composed of
the Golf Club facilities, totaling approximately 133 acres. The PCD has been developed
in accordance with the Newport Beach General Plan and is consistent with the Local
Coastal Land Use Plan.
The purpose of this PCD is to provide for the classification_,,and development of
coordinated, cohesive, comprehensive planning project for thepri5ate Golf Club.
Whenever the regulations contained in the PCD Regulations conflict with the regulations
of the Newport Beach Municipal Code, the regulations contained in the PCD
Regulations shall take precedence. The Newport 13-each-MunicipH.QQde shall regulate
all development within the PCD when such regulations are not provided,within the PCD
Regulations.
3
2.0 GENERAL CONDITIONS AND REGULATIONS
1. Alcoholic Beverage Consumption
The consumption of alcoholic beverages within the PCD shall be in compliance with the
State of California Department of Alcoholic Beverage Control and the Newport Beach
Municipal Code. A use permit shall be required if the establishment operates past 11:00
p.m. any day of the week and a minor use permit shall be required if the establishment
operates until 11:00 p.m. any day of the week.
2. Amplified Music
All amplified music played after 10:00 p.m. within t_he =_PGD shall be confined within the
interior of a building unless a Special Events Permit is obtained. v ,
3. Archaeological /Paleontological Resou
Development of the site is subject to the provisions of City Council Policies K -5 and K -6
regarding archaeological and paleontological. resources
4. Architectural Design
All development shall be designed with high quality architectural standards and shall be
compatible with the surr"ding uses The development should be well- designed with
coordinated, cohesive'architectiare and exhibiting the highest level of architectural and
landscape quality.iri'=keeping with the PCD's prominent location in the Newport Center
Planning Area. Massing offsets, variation '_Pfoof lines, varied textures, openings,
recesses, and design accents on a_ _building elevations shall be provided to enhance
the architectural st!le Architectural treatrrtents for all ancillary facilities (i.e. storage,
truck loeding and uiloadtt�g, andtrash enclosures) shall be provided.
a
Construction shall comply with applicable provisions of the California Building Code and
the various other mechanical, electrical and plumbing codes related thereto as adopted
by the Newport Beaeh..MGicipal Code.
6. Exterior
There shall be no exterior storage areas permitted with the exception of the
greenskeeper /maintenance area which shall be enclosed by a minimum six foot
plastered block wall.
rd
7. Flood Protection
Development of the subject property will be undertaken in accordance with the flood
protection policies of the City.
8. Grading and Erosion Control
Grading and erosion control measures shall be carried out in ,,accordance with the
provisions of the Newport Beach Excavation and Grading Code and. shall be subject to
permits issued by the Community Development Department
9. Gross Floor Area
Gross floor area shall be defined as the total area of a buildi ng. including the
surrounding exterior walls.
10. Height and Grade
The height of any structure withWn the
otherwise specified. The height of a stru
highest point of the structure and the gra
sloped roof, the measurement shall be th
midpoint of the roof plane, provided that
five (5) feet above the permitted hei
amendments shall.y % subiebt, to the
Development Directors:,
in
reduce heat, ,and glare, c
and 110, the integ
combination of�trees, sh
shall be preparetl .in acs
I�A Landscaping Sections
accordance with the'�ai
architect. 4r
12. Lighting — Outdoor
PCD shall not exceed fifty (50) feet, unless
cture shall be the vertical distance between the
de directly below. lr ,.&termined the height of a
e vertical distance -between the grade and the
no part of the roof shall be extend more than
gh$ in the height limitation zone, and any
review and approval of the Community
shallF,:be provided in all areas not devoted to structures,
walkways-to enhance the appearance of the development,
-ol SO,` rosion, conserve water, screen adjacent land uses,
of PCD. Landscaping and irrigation shall consist of a
>, groundcover and hardscape improvements. Landscaping
ance with the Landscaping Standards and Water- Efficient
the Newport Beach Municipal Code and installed in
ved landscape plans prepared by a licensed landscape
All new outdoor lighting shall be designed, shielded, aimed, located and maintained to
shield adjacent uses /properties and to not produce glare onto adjacent uses /properties.
Lighting plans shall be prepared in compliance with the Outdoor Lighting Section of the
Newport Beach Municipal Code and shall be prepared by a licensed electrical
5
engineer. All lighting and lighting fixtures that are provided shall be maintained in
accordance with the approved lighting plans.
13. Lighting — Parking & Walkways
All lighting and lighting fixtures that are provided shall be maintained in accordance with
the approved lighting plans. Light standards within parking lots shall be the minimum
height required to effectively illuminate the parking area and eliminate spillover of light
and glare onto adjoining uses /properties and roadways.
Parking lots and walkways accessing buildings shall be illuminated with a minimum of
0.5 foot - candle average on the driving or walking surface during, the hours of operation
and one hour thereafter. Lighting plans shall be prepared in 'compliance with the
Outdoor Lighting Section of the Newport Beach Muriie_ ipal, Code and,.shall be prepared
by a licensed electrical engineer.
If the applicant wishes to deviate from this'`ligh
prepared by the applicant and submitted to the
review and approval.
14. Loading Areas for
All loading and unloading of goods
platforms and areas shall be screened
15. Parking Areas
Parking spaces, driveways, m-
areas of the parking lots sFiel l
the parking areas ' ncludinaoi4rii
the parking lots shall be perm;
location, parking space and lot
compliance_with the Developm(
Beach Municipal Code
16. Property
, a lighting pl "an may be
)evelopmert Director for
onsite. Loading
ing aigles, turnaround areas, and landscaping
ree of 'dust, graffiti, and litter. All components of
wing, wheel stops, walls, and light standards of
maintained in good working condition. Access,
dons, and parking lot improvements shall be in
dards for Parking Areas Section of the Newport
Written property owner approval shall be required for the submittal of any site
development review'application and /or prior to grading and /or building permit issuance.
17. Outdoor Paging
Outdoor paging shall be permitted at the Golf Club to call individuals to the tees.
59
18. Sewage Disposal
Sewage disposal service facilities for the PCD will be provided by Orange County
Sanitation District No. 5 and shall be subject to applicable regulations, permits and fees
as prescribed by the Sanitation District.
19. Screening of Mechanical Equipments
All new mechanical appurtenances (e.g., air conditioning,
exhaust vents, transformers, utility vaults and emergent
screened from public view and adjacent land uses. T
approved by the Community Development Department'
than vents, wind turbines, etc.) shall be arch itecturally_Jre
views in a manner compatible with the building material
clearance for each new or remodeled building, ;The meth
subject to sound rating in accordance with the Exterior N
Newport Beach Municipal Code. Rooftop screernngsn,d
the applicable height limit.
20. RESERVED
21. RESERVED
22. Special Events
Temporary special'communi
and other similar events:. ai
seating "ventilation ducts and
power generators) shall be
C enclosure design shall be
All rooftop equipment (other
ted or screened from off -site
prior to final building permit
inical appurtenances shall be
ise Standards Section of the
nclosures shall be subject to
is, such as PGA Senior Classic golf tournaments,
itted in the PCD, and are subject to the Special
ach Municipal Code. Temporary exterior storage
ents may be permitted provided it is appropriately
Dved Special Event Permit.
7
23. Temporary Structures and Uses
Temporary structures and uses, including modular buildings for construction - related
activities are permitted.
25. Trash Enclosures for Non - Residential Uses
All trash enclosures for non - residential uses shall be pi
the Solid Waste and Recyclable Materials Storage of
Code.
26. RESERVED
27. Water Service
Water service to the PCD will be provided by the`(
subject to applicable regulations, permits and fees as
P
and in accordance with
iwport Beach Municipal
of Newport Beach and will be
scribed by the City.
3.0 LAND USE AND DEVELOPMENT REGULATIONS
3.1 Golf Club
Refer to Exhibit B - Conceptual Master Site Plan for the general location and
placement of the golf course and clubhouse.
A. Golf Course
An 18 -hole championship golf course and rele
driving range, snack bar, starter shack, restroom
B. Golf Clubhouse and Ancillary
1. Building Area
The maximum allowable gross floof. are
shall be 56,000 square feet, exclusive _g1
areas ramp and washing area. The greer
snack bar, separate golf course restroc
similar ancillary buildings are exempt from
2.
(i.e. putting green,
°a golf clubhouse building
enclosed golf cart storage
oer /maintenance buildings,
ilities, starter shack, and
r e'lopment limit.
The maximum allowable building height for the Golf Clubhouse shall be 50
feet aritl shall be measured mr accordance with the Height and Grade
definition-'Of S,ectior;2,y0 General Conditions and Regulation of the PCD.
The followihmancillaryruses are allowed:
• Golf shop
'fAdmmistra#ive Offices
0,
• `NDining, and event areas
pN
• Kitch,en `& Bar areas
• Ba quet Rooms
• Men and Women's Card Rooms
• Health and fitness facility
• Restroom and Locker facilities
• Golf Club storage areas
• Employee lounge /lunch areas
• Meeting rooms
• Golf Cart Parking Storage and Washing Area
• Separate Snack Bar
• Separate Starter Shack
• Separate Golf Course Restrooms
• Hand Carwash Area
• Greenskeeper Maintenance Facility
• Temporary Construction Facilities
• Guard House
• Others (subject to an approval of the Community Development
Director)
4. Parking
Parking for the Golf Course and Golf Clubhouse shall be in accordance
with following parking ratios (source: from
-Table 2 of the Circulation and
Parking Evaluation by Kimley -Horn and`Associates Inc September 2009
for Newport Beach Country Glub _,clubhouse imp roject):
Golf Course: 8 spaces per
Golf Clubhouse:
Dining, assembly
square feet
Administrative Office
Pro Shop: 4 per 1,OC
Maintenance Facility
".
_ pf
3.2 RESER\
3.3 RESER\
3.4. RESER\
3.5 Signs
A. Sign Allowance
(6)
meeting rooms ;1,. per 3 seats or 1 per 35
4`0er 1,000 squar& et
, square feet
2_per 1,000 square feet
c"ilily: 4 per 1;000 square feet
r`ig shall be wrought -iron with a maximum
1. One (1) single or double- faced, ground- mounted entrance
identification sign shall be allowed at or near the vicinity of the
Newport Beach Country Club's main entrance (Country Club Drive,
Irvine Terrace and /or Coast Highway). Total maximum signage
10
4
area shall not exceed one hundred fifty -five (155) square feet and
shall not exceed seven (7) feet in height.
2. RESERVED
3. Building identification signs shall be allowed; one for each street
frontage. If freestanding, this sign type shall not exceed a maximum
height of five (5) feet in height. The maximum signage area shall
not exceed seventy (70) square feet.
4. Vehicular and pedestrian directional signs shall be allowed. This
sign type may occur as a single -faced or double -faced sign. The
sign shall be sized to allow for proper readability given the number
of lines of copy, speed of traffic;,-,'_, _setback off the,,road and viewing
distance. This sign type shall net a tceed a ma milm of six (6) feet
in height. -
5. RESERVED -
Sign Standards
1. The design and materials of all permanent signs in the Newport
Beach Country Club Planned-. Community District shall be in
accordance with Sign_Section 35,�ut:less otherwise approved by
the,Community Development Director.
2 ==All permanent signs shall,, =be subject to a sign permit issued by the
`subject to the review of the City Traffic Engineer
uate sight distance in accordance with the
dewport Beach Municipal Code.
Sign illumination is permitted for all sign types. No sign shall be
constructed or installed to rotate, gyrate, blink or move, or create
the illusion of motion, in any fashion.
5. Ajl">'permanent signs together with the entirety of their supports,
•araces, guys, anchors, attachments and decor shall be properly
maintained, legible, functional and safe with regards to appearance,
structural integrity and electrical service.
6. Temporary signs that are visible from any public right -of -way shall
be allowed up to a maximum of sixty (60) days and subject to a
temporary sign permit issued by the Community Development
Department.
11
7. If the applicant wishes to deviate from the sign standards identified
herein, a comprehensive sign program may be prepared or a
modification permit application may be submitted for review and
consideration by the Zoning Administrator in accordance with the
applicable provisions of the Newport Beach Municipal Code.
12
4.0 SITE DEVELOPMENT REVIEW
4.1 Purpose
The purpose of the Site Development Review process is to ensure new
development proposals within the Newport Beach Country Club Planned
Community Development are consistent with the goals and policies of the
General Plan, provisions of this Planned Community _Development Plan, the
Development Agreement and the findings set forth below' in sub- section 4.3.
4.2 Application
An approval of Site Development Review., application ==by the Planning
Commission shall be required for the construction of any newtructure prior to
the issuance of a grading or building permit or issuance of an approval in concept
for Coastal Commission. Signs, cart�,6 r ,maintenance building golf course's
ancillary structures (i.e. free - standing restroom facilities, snack bar, and starter
shack), tenant improvements to any existing buildings, kiosks, and temporary
structures are exempt from the site development review process and subject to
the applicable City's permits. The decision of Planning Commission is the final,
unless appealed in accordance with the; Newport BeachMunicipal Code.
4.3. Findings '
In addition to the genefal purposes setiforth in sub - section 4.1 and in order to carry
out the purposes of this chapter as established by said section, the Site
Development Revjew procedures established by this Section shall be applied
accordmg,to and m compliance with the following findings:
The tlevelopment;'shall be in compliance with all other provisions of the
Planned C:ornmunity District Plan;
2 =; `The development 'shall be compatible with the character of the
neighboring uses and surrounding sites and shall not be detrimental to the
orderly and harmonious development of the surroundings and of the City;
qg
3. The development shall be sited and designed to maximize the aesthetic
quality' of the project as viewed from surrounding roadways and
properties, with special consideration given to the mass and bulk of
buildings and the streetscape on Coast Highway; and
13
4. Site plan and layout of buildings, parking areas, pedestrian and vehicular
access ways, landscaping and other site features shall give proper
consideration to functional aspects of site development.
4.4. Contents
The Site Development Review application shall include all of the information and
materials specified by the Community Development Director and any additional
information review by the Planning Commission in orderAo, conduct a thorough
review of the project in question. The following plans /exhibits may include, but
not limited to the following:,
1. An aerial map showing the subject
identifying their uses.
2. Comprehensive elevations
coordinated and complimen
3. A parking and circulation plan
addition to streets and fire lane
4. A comprehensive,
5. A comprehensive, cohesive and_.coor
location aPd.cglor, of all exterior--`lighting
properties and
for new =structures with
,ian, materials and colors.
cart and pedestrian paths in
nary landscape plan.
lighting plan showing type,
6. Comprehensive text and graphics describing the design philosophy for the
architecture; ;landscape architecture, material and textures, color palette,
lighting and signage -
7 Text descnbing drainage and water quality mitigation measures.
� J � � �
8X A statement that the proposed new structure is consistent with the goals,
.,M policies and ,actions of the General Plan and Planned Community
Develooment:Plan.
4.5 Publ!C" a'ii•ing — Required Notice
A public hearing shall be held on all site development review applications. Notice
of such hearing shall be mailed not less than ten (10) days before the hearing
date, postage prepaid, using addresses from the last equalized assessment roll
or, alternatively, from such other records as contain more recent addresses, to
owners of property within a radius of three hundred (300) feet of the exterior
boundaries of the subject property. It shall be the responsibility of the applicant to
obtain and provide to the City the names and addresses of owners as required
by this Section. In addition to the mailed notice, such hearing shall be posted in
14
not less than two (2) conspicuous places on or close to the property at least ten
(10) days prior to the hearing.
4.6 Expiration and Revocation Site Development Review Approvals
1. Expiration. Any site development review approved in accordance with the
terms of this planned community development plan shall expire within
twenty -four (24) months from the effective date of final approval as
specified in the Time Limits and Extensions Section -,of the Newport Beach
Municipal Code, unless at the time of approval t"h Planning Commission
has specified a different period of time or an extension is otherwise
granted.
2. Violation of Terms. Any site development,review approved in accordance
with the terms of this planned community development, plan may be
revoked if any of the conditions,oelerms of -such site development review
are violated or if any law or ordinance >is violated in connection:,tterewith.
3. Public Hearing. The Planning Commissi n o shall hold a public hearing on
any proposed revocation, after. giving wn#ten notice to the permittee at
least ten (10) days - prior to the hearing, and shall submit its
recommendations to the City Gouncil, The City: Council shall act thereon
within sixty (60) days after receipt of#he� recommendation of the Planning
Commission.
4.7. Fees
The applicant ;
City Council to
this;planned, et
as establ
plan.
15
by Resolution of the Newport Beach
for Site Development Review under
Attachment No. PC 4
Revision to Landscape Frontage
A
I J-1.7J �J I
01
- - ------- - -
.... -- - - - ------------
------ ----- -
Attachment No. PC 5
Draft Development Agreement
aV'W Po, ?r
NO
CITY ATTORNEY'S OFFICE
DATE: October 20, 2011
TO: Community Development Department
FROM: Leonie Mulvihill, Assistant City Attorney
MATTER: IBC Country Club: Development Agreement
No.: A11 -00526
SUBJECT: Planning Commission Agenda Item No. 3 — October 20, 2011
Attached, please find the proposed Development Agreement that has been approved by
the applicant.
[A11- 00526]- CDD from LM 10.20.11 re Agenda Item No. 3.
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92663 -3884
Attn: City Clerk
(Space Above This Line Is for Recorder's Use Only)
This Agreement is recorded at the request and for
the benefit of the City of Newport Beach and is
exempt from the payment of a recording fee
pursuant to Government Code §§ 6103 and 27383.
DEVELOPMENT AGREEMENT
between
CITY OF NEWPORT BEACH
and
THE NEWPORT BEACH COUNTRY CLUB, INC.
(Concerning 1600 East Coast Highway)
Al 1- 00526 -NBCC -NBCC, hic
10.20.11 v2 CLEAN
TABLE OF CONTENTS
1. Definitions...........
Page
... ............................... 2
2. General Provisions .............................................................................. ..............................6
2.1 Plan Consistency, Zoning Implementation ............................. ..............................6
2.2 Binding Effect of Agreement ................................................. ............................... 6
2.3 NBCC Representations and Warranties Regarding Ownership of the
Property and Related Matters Pertaining to this Agreement .. ..............................6
2.4 Tenn ........................................................................................ ..............................6
3. Public Benefits .................................................................................... ..............................7
3.1 Public Benefit Fee ................................................................... ..............................7
4. Development of Project ...................................................................... ..............................8
4.1 Applicable Regulations; NBCC's Vested Rights and City's Reservation of
Discretion With Respect to Subsequent Development Approvals .......................8
4.2 No Conflicting Enactments ..................................................... ..............................9
4.3 Reservations of Authority ...................................................... .............................10
4.3.1 Procedural Regulations ................................................ .............................10
4.3.2 Processing and Permit Fees ......................................... .....:.......................10
4.3.3 Consistent Future City Regulations ............................. .............................10
4.3.4 Development Exactions Applicable to Property .......... .............................10
4.3.5 Overriding Federal and State Laws and Regulations . ............................... 11
4.3.6 Public Health and Safety ............................................ ............................... 11
4.3.7 Uniform Building Standards ...................................... ............................... l l
4.3.8 Public Works Improvements ........................................ .............................12
4.3.9 No Guarantee or Reservation of Utility Capacity ........ .............................12
5. Amendment or Cancellation of Agreement ....................................... .............................12
6. Enforcement ....................................................................................... .............................12
7. Annual Review of NBCC's Compliance With Agreement ............... .............................12
7.1 General ................................................................................... .............................12
7.2 NBCC Obligation to Demonstrate Good Faith Compliance . .............................13
7.3 Procedure ............................................................................... .............................13
7.4 Annual Review a Non - Exclusive Means for Determining and Requiring
Cure of NBCC's Default ........................................................ .............................13
8. Events of Default ............................................................................... .............................13
8.1 General Provisions ................................................................. .............................13
8.2 Default by NBCC ................................................................... .............................13
8.3 City's Option to Terminate Agreement ................................. .............................14
8.4 Default by City ....................................................................... .............................14
8.5 Waiver .................................................................................... .............................14
8.6 Specific Performance Remedy ............................................... .............................14
-i-
Page
8.7 Monetary Damages ................................................................ .............................15
8.8 Additional City Remedy for NBCC's Defaul t ....................... .............................15
8.9 No Personal Liability of City Officials„ Employees, or Agents ........................15
8.10 Recovery of Legal Expenses by Prevailing Party in Any Action .......................15
9.
Force Majcure .................................................................................... .............................15
10.
Indemnity Obligations of NBCC ....................................................... .............................16
10.1 Indemnity Arising From Acts or Omissions of NBCC .......... .............................16
10.2 Third Party Litigation ............................................................ .............................16
10.3 Environmental Indemnity ...................................................... .............................16
11.
Assignment ........................................................................................ .............................17
12.
Mortgagee Rights ............................................................................... .............................18
12.1 Encumbrances on Property .................................................... .............................18
12.2 Mortgagee Protection ............................................................. .............................19
12.3 Mortgagee Not Obligated ...................................................... .............................18
12.4 Notice of Default to Mortgagee; Right of Mortgagee to Cure ............................18
13.
Miscellaneous Terms ....... ................................................................... .............................19
13.1 Notices ................................................................................... .............................19
13.2 Project as Private Undertaking ............................................... .............................20
13.3 Cooperation ............................................................................ .............................20
13.4 Estoppel Certificates .............................................................. .............................20
13.5 Rules of Construction ............................................................ .............................20
13.6 Time Is of the Essence ........................................................... .............................21
13.7 Waiver .................................................................................... .............................21
13.8
Counterparts 21
13.9 Entire Agreement ................................................................... .............................21
13.10 Severability ............................................................................ .............................21
13.11 Construction ........................................................................... .............................21
13.12 Successors and Assigns; Constructive Notice and Acceptance ..........................22
13.13 No Third Party Beneficiaries ................................................. .............................22
13.14 Applicable Law and Venue .................................................... .............................22
13.15 Section Headings ................................................................... .............................22
13.16 Incorporation of Recitals and Exhibits .................................. .............................22
13.17 Recordation ............................................................................ .............................23
-ii-
DEVELOPMENT AGREEMENT
(Pursuant to California Government Code sections 65864- 65869.5)
This DEVELOPMENT AGREEMENT (the "Agreement ") is dated for reference
purposes as of the _ day of 201_ (the "Agreement Date "), and is being entered
into by and between the CITY OF NEWPORT BEACH ( "City "), and Newport Beach Country
Club, Incorporated ("NBCC"). City and NBCC are sometimes collectively referred to in this
Agreement as the "Parties" and individually as a "Party."
RECITALS
A. The Newport Beach Country Club, Incorporated (also referred to herein as
NBCC) is the owner and operator of The Newport Beach Country Club subject to a lease with
O'Hill Properties, a California limited partnership, Allan Fainbarg and Sara Fainbarg as Trustees
of the Fainbarg Family Trust dated April 19, 1982 and Mesa Shopping Center -East, a California
General Partnership (the "Lease "), the fee owners of the 132 -acre parcel of real property
(Property) that is described in the legal description attached hereto as Exhibit A and depicted on
the Overall Site Plan attached hereto as Exhibit B1 and Overall Site Plan Alternative Exhibit B2.
B. In order to encourage investment in, and commitment to, comprehensive planning
and public facilities financing, strengthen the public planning process and encourage private
implementation of the local general plan, provide certainty in the approval of projects in order to
avoid waste of time and resources, and reduce the economic costs of development by providing
assurance to property owners that they may proceed with projects consistent with existing land
use policies, rules, and regulations, the California Legislature adopted California Government
Code sections 65864- 65869.5 (the "Development Agreement Statute ") authorizing cities and
counties to enter into development agreements with persons or entities having a legal or
equitable interest in real property located within their jurisdiction.
C. On March 13, 2007, the City Council adopted Ordinance No. 2007 -6, entitled
"Ordinance Amending Chapter 15.45 of City of Newport Beach Municipal Code Regarding
Development Agreements" (the "Development Agreement Ordinance "). This Agreement is
consistent with the Development Agreement Ordinance,
D. As detailed in Section 4 of this Agreement, NBCC has agreed to provide a Public
Benefit Fee as consideration for this Agreement:
E. This Agreement is consistent with the City of Newport Beach General Plan,
including without limitation the General Plan's designation of the Property as "PR (Parks and
Recreation) the Coastal Land Use Plan's designation as "OS (Open Space)" and the Newport
Beach Country Club Planned Community District (PA 2008 -152) that was adopted in 1997 by
Ordinance No. 97 -10 and amended in 201_ by Ordinance No. _ in order to establish
appropriate zoning to regulate land use and development of the Property consistent with the
General Plan.
F. In recognition of the significant public benefits that this Agreement provides, the
City Council has found that this Agreement: (i) is consistent with the City of Newport Beach
General Plan as of the date of this Agreement; (ii) is in the best interests of the health, safety, and
112 %066751 -0090
2347819.1 a1020111 -1-
general welfare of City, its residents, and the public; (iii) is entered into pursuant to, and
constitutes a present exercise of, City's police power; (iv) is consistent and has been approved
consistent with the Final Environmental Impact Report for the City of Newport Beach General
Plan 2006 Update (State Clearinghouse No. 200601 1 1 19) and the Mitigated Negative
Declaration for the Newport Beach Country Club Planned Community District (PA 2008 -152 by
the City Council on or before the Agreement Date, both of which analyze the environmental
effects of the proposed development of the Project on the Property; and (v) is consistent and has
been approved consistent with provisions of California Goverment Code section 65867 and
City of Newport Beach Municipal Code chapter 15.45.
G. On , 201, City's Planning Commission held a public hearing on
this Agreement, made findings and determinations with respect to this Agreement, and
recommended to the City Council that the City Council approve this Agreement.
H. On , 201_, the City Council also held a public hearing on this
Agreement and considered the Planning Commission's recommendations and the testimony and
information submitted by City staff, NBCC, and members of the public. On
201, consistent with applicable provisions of the Development Agreement Statute and
Development Agreement Ordinance, the City Council adopted its Ordinance No. _ (the
"Adopting Ordinance "), finding this Agreement to be consistent with the City of Newport Beach
General Plan and approving this Agreement.
AGREEMENT
NOW, THEREFORE, City and NBCC agree as follows:
1. Definitions.
In addition to any terms defined elsewhere in this Agreement, the following terms when
used in this Agreement shall have the meanings set forth below:
"Action" shall have the meaning ascribed in Section 8.10 of this Agreement.
"Adopting Ordinance" shall mean City Council Ordinance No. _ approving and
adopting this Agreement.
"Agreement" shall mean this Zoning Implementation and Public Benefit Agreement, as
the same may be amended from time to time.
"Agreement Date" shall mean the date first written above, which date is the date the City
Council adopted the Adopting Ordinance.
"CEOA" shall mean the California Environmental Quality Act (California Public
Resources Code sections 21000- 21177) and the implementing regulations promulgated
thereunder by the Secretary for Resources (California Code of Regulations, Title 14, section
15000 et seq), as the same may be amended from time to time.
"City" shall mean the City of Newport Beach, a California charter city, and any successor
or assignee of the rights and obligations of the City of Newport Beach hereunder.
112,0667560090
2 347819.1 a1020111 2
"City Council" shall mean the governing body of City.
"City's Affiliated Parties" shall have the meaning ascribed in Section 10.1 of this
Agreement.
"Claim" shall have the meaning ascribed in Section 10.1 of this Agreement.
"Coastal Development Permit" shall mean a pennit issued by the California Coastal
Commission pursuant to subdivision (a) of Section 30600 of the California Coastal Act.
"CPI Index" shall mean the Consumer Price Index published from time to time by the
United States Department of Labor for all urban consumers (all items) for the smallest
geographic area that includes the City or, if such index is discontinued, such other similar index
as may be publicly available that is selected by City in its reasonable discretion.
"Cure Period" shall have the meaning ascribed in Section 8.1 of this Agreement.
"Default" shall have the meaning ascribed to that term in Section 8.1 of this Agreement.
"Develop" or "Development" shall mean to improve or the improvement of the Property
for the purpose of completing the structures, improvements, and facilities comprising the Project,
including but not limited to: grading; the construction of infrastructure and public facilities
related to the Project, whether located within or outside the Property; the construction of all of
the private improvements and facilities comprising the Project; the preservation or restoration, as
required of natural and man -made or altered open space areas; and the installation of
landscaping. The terns "Develop" and "Development," as used herein, do not include the
maintenance, repair, reconstruction, replacement, or redevelopment of any structure,
improvement, or facility after the initial construction and completion thereof.
"Development Agreement Ordinance" shall mean Chapter 15.45 of the City of Newport
Beach Municipal Code.
"Development Agreement Statute" shall mean California Government Code sections
65864 - 65869.5, inclusive.
"Development Exactions" shall mean any requirement of City in connection with or
pursuant to any ordinance, resolution, rule, or official policy for the dedication of land, the
construction or installation of any public improvement or facility, or the payment of any fee or
charge in order to lessen, offset, mitigate, or compensate for the impacts of Development of the
Project on the environment or other public interests.
"Development Plan" shall mean the General Plan Land Use Element Amendment, the
Newport Beach Planned Community District, Development Plan approved by the City Council
on or before the Agreement Date, as the same may be amended from time to time consistent with
this Agreement.
"Development Regulations" shall mean the following regulations as they are in effect as
of the Effective Date and to the extent they govern or regulate the development of the Property,
but excluding any amendment or modification to the Development Regulations adopted,
112066751 -0090
2347819.1 a1020111 3
approved, or imposed after the Effective Date that impairs or restricts NBCC's rights set forth in
this Agreement, unless such amendment or modification is expressly authorized by this
Agreement or is agreed to by NBCC in writing: the General Plan; the Development Plan; and, to
the extent not expressly superseded by the Development Plan or this Agreement, all other land
use and subdivision regulations governing the permitted uses, density and intensity of use,
design, improvement, and construction standards and specifications, procedures for obtaining
required City permits and approvals for development, and similar matters that may apply to
development of the Project on the Property during the Term of this Agreement that are set forth
in Title 15 of the Municipal Code (buildings and construction), Title 19 of the Municipal Code
(subdivisions), and Title 20 of the Municipal Code (planning and zoning), but specifically
excluding all other sections of the Municipal Code, including without limitation Title 5 of the
Municipal Code (business licenses and regulations). Notwithstanding the foregoing, the term
"Development Regulations," as used herein, does not include any City ordinance, resolution,
code, rule, regulation or official policy governing any of the following: (i) the conduct of
businesses, professions, and occupations; (ii) taxes and assessments; (iii) the control and
abatement of nuisances; (iv) the granting of encroachment permits and the conveyance of rights
and interests which provide for the use of or the entry upon public property; or (v) the exercise of
the power of eminent domain.
"Effective Date" shall mean the latest of the following dates, as applicable: (i) the date
that is thirty (30) days after the Agreement Date; (ii) if a referendum concerning the Adopting
Ordinance or any of the Development Regulations approved, on or before the Agreement Date is
timely qualified for the ballot and a referendum election is held concerning the Adopting
Ordinance or any of such Development Regulations, the date on which the referendum is
certified resulting in upholding and approving the Adopting Ordinance and such Development
Regulations and becomes effective, if applicable; (iii) if a lawsuit is timely filed challenging the
validity or legality of the Adopting Ordinance, this Agreement, and /or any of the Development
Regulations approved on or before the Agreement Date, the date on which said challenge is
finally resolved in favor of the validity or legality of the Adopting Ordinance, this Agreement,
and /or the applicable Development Regulations, whether such finality is achieved by a final non -
appealable judgment, voluntary or involuntary dismissal (and the passage of any time required to
appeal an involuntary dismissal), or binding written settlement agreement; or (iv) the date of
approval of a coastal development permit for the Project. Promptly after the Effective Date
occurs, the Parties agree to cooperate in causing an appropriate instrument to be executed and
recorded against the Property memorializing the Effective Date.
"Environmental Laws" means all federal, state, regional, county, municipal, and local
laws, statutes, ordinances, rules, and regulations which are in effect as of the Agreement Date,
and all federal, state, regional, county, municipal, and local laws; statutes, rules, ordinances,
rules, and regulations which may hereafter be enacted and which apply to the Property or any
part thereof, pertaining to the use, generation, storage, disposal, release, treatment, or removal of
any Hazardous Substances, including without limitation the following: the Comprehensive
Environmental Response Compensation and Liability Act of 1980, 42 U.S.C. Sections 9601,
et seg., as amended ( "CERCLA "); the Solid Waste Disposal Act, as amended by the Resource
Conservation and Recovery Act of 1976, 42 U.S.C. Sections 6901, et sew., as amended
( "RCRA "); the Emergency Planning and Community Right to Know Act of 1986, 42 U.S.C.
Sections 11001 et sea., as amended; the Hazardous Materials Transportation Act, 49 U.S.C.
Section 1801, et sec ., as amended; the Clean Air Act, 42 U.S.C. Sections 7401 et sea., as
112066751.0090
2347819.1 a1020/11 4
amended; the Clean Water Act, 33 U.S.C. Section 1251, et sM., as amended; the Toxic
Substances Control Act, 15 U.S.C. Sections 2601 et sea., as amended; the Federal Insecticide,
Fungicide and Rodenticide Act, 7 U.S.C. Sections 136 et seq., as amended; the Federal Safe
Drinking Water Act, 42 U.S.C. Sections 300f et seq., as amended; the Federal Radon and Indoor
Air Quality Research Act, 42 U.S.C. Sections 7401 et Ise ., as amended; the Occupational Safety
and Health Act, 29 U.S.C. Sections 651 et sea., as amended; and California Health and Safety
Code Section 25100, et SeMc .
"First Building Permit" ermit" shall mean the first building permit that is issued for the project.
"General Plan" shall mean City's 2006 General Plan adopted by the City Council on July
25, 2006, by Resolution No. 2006 -76, excluding any amendment after the Effective Date that
impairs or restricts NBCC's rights set forth in this Agreement, unless such amendment is
expressly authorized by this Agreement, is authorized by Sections 8 or 9, or is specifically
agreed to by NBCC. The Land Use Plan of the Land Use Element of the General Plan was
approved by City voters in a general election on November 7, 2006.
"Hazardous Substances" means any toxic substance or waste, pollutant, hazardous
substance or waste, contaminant, special waste, industrial substance or waste, petroleum or
petroleum- derived substance or waste, or any toxic or hazardous constituent or additive to or
breakdown component from any such substance or waste, including without limitation any
substance, waste, or material regulated under or defined as "hazardous" or "toxic" under any
Environmental Law.
"Mortgage" shall mean a mortgage, deed of trust, sale and leaseback arrangement, or any
other form of conveyance in which the Property, or a part or interest in the Property, is pledged
as security and contracted for in good faith and for fair value.
"Mortgagee" shall mean the holder of a beneficial interest under a Mortgage or any
successor or assignee of the Mortgagee.
"Notice of Default" shall have the meaning ascribed in Section 8.1 of this Agreement.
"Party" or "Parties" shall mean either City or NBCC or both, as determined by the
context.
"Project" shall mean all on -site and off -site improvements that NBCC is authorized
and /or required to construct with respect to each parcel of the Property, as provided in this
Agreement and the Development Regulations, as the same may be modified or amended from
time to time consistent with this Agreement and applicable law.
"Propert y" is described in Exhibit A and depicted on Exhibit B.
"Public Benefit Fee" shall have the meaning ascribed in Section 3.1 of this Agreement.
"Subsequent Development Approvals" shall mean all discretionary development and
building approvals that NBCC is required to obtain to Develop the Project on and with respect to
112,066751.0090 5
2347819.1 a10,20111
the Property after the Agreement Date consistent with the Development Regulations and this
Agreement, with the understanding that except as expressly set forth herein City shall not have
the right subsequent to the Effective Date and during the Tenn of this Agreement to adopt or
impose requirements for any such Subsequent Development Approvals that do not exist as of the
Agreement Date.
"Term" shall have the meaning ascribed in Section 2.4 of this Agreement.
"Termination Date" and "Lot Termination Date" shall have the meaning ascribed in
Section 2.4 of this Agreement.
"Transfer" shall have the meaning ascribed in Section 11 of this Agreement.
2. General Provisions.
2.1 Plan Consistency, Zoning Implementation.
This Agreement and the Development Regulations applicable to the Property will cause
City's zoning and other land use regulations for the Property to be consistent with the General
Plan.
2.2 Binding Effect of Agreement.
The Property is hereby made subject to this Agreement. Development of the Property is
hereby authorized and shall be carried out in accordance with the temps of this Agreement.
2.3 NBCC Representations and Warranties Regarding Ownership of the Property
Related Matters Pertaining to this Agreement.
NBCC and each person executing this Agreement on behalf of NBCC hereby represents
and warrants to City as follows: (i) that NBCC is the lessee of the Property; (ii) if NBCC or any
co -owner comprising NBCC is a legal entity that such entity is duly formed and existing and is
authorized to do business in the State of California; (iii) if NBCC or any co -owner comprising
NBCC is a natural person that such natural person has the legal right and capacity to execute this
Agreement; (iv) that all actions required to be taken by all persons and entities comprising
NBCC to enter into this Agreement have been taken and that NBCC has the legal authority to
enter into this Agreement; (v) that NBCC's entering into and performing its obligations set forth
in this Agreement will not result in a violation of any obligation, contractual or otherwise, that
NBCC or any person or entity comprising NBCC has to any third party; (vi) that neither NBCC
nor any co -owner comprising NBCC is the subject of any voluntary or involuntary petition; and
(vii) that NBCC has no actual knowledge of any pending or threatened claims of any person or
entity affecting the validity of any of the representations and warranties set forth in clauses (i)-
(vi), inclusive, or affecting NBCC's authority or ability to enter into or perform any of its
obligations set forth in this Agreement.
2.4 Tenn.
The term of this Agreement (the "Term ") shall commence on the Agreement Date and
shall terminate on the "Termination Date."
112:0667510090
2347819.1 a10,20/11
Notwithstanding any other provision set forth in this Agreement to the contrary, if either
Party reasonably determines that the Effective Date of this Agreement will not occur because (i)
the Adopting Ordinance or any of the Development Regulations approved on or before the
Agreement Date for the Project has/have been disapproved by City's voters at a referendum
election or (ii) a final non- appealable judgment is entered in a judicial action challenging the
validity or legality of the Adopting Ordinance, this Agreement, and /or any of the Development
Regulations for the Project approved on or before the Agreement Date such that this Agreement
and /or any of such Development Regulations is /are invalid and unenforceable in whole or in
such a substantial pail that the judgment substantially impairs such Party's rights or substantially
increases its obligations or risks hereunder or thereunder, then such Party shall have the right to
terminate this Agreement upon delivery of a written notice of termination to the other Party, in
which event neither Party shall have any further rights or obligations hereunder except that
NBCC's indemnity obligations set forth in Article 10 shall remain in full force and effect and
shall be enforceable, and the Development Regulations applicable to the Project and the Property
only (but not those general Development Regulations applicable to other properties in the City)
shall similarly be null and void at such time.
The Termination Date shall be the earliest of the following dates: (i) the _tenth (10th)
amriversary of the Term Commencement Date, as said date may be extended in accordance with
Section 5 of this Agreement; (ii) such earlier date that this Agreement may be terminated in
accordance with Articles 5, 7, and /or Section 8.3 of this Agreement and /or Sections 65865.1
and /or 65868 of the Development Agreement Statute; (iii) or (iv) completion of the Project in
accordance with the terms of this Agreement, including Owner's complete satisfaction,
performance, and payment, as applicable, of all Development Exactions, the issuance of all
required final occupancy permits, and acceptance by City or applicable public agency(ies) or
private entity(ies) of all required offers of dedication.
Notwithstanding any other provision set forth in this Agreement to the contrary, the
provisions set forth in Article 10 and Section 13.10 (as well as any other NBCC obligations set
forth in this Agreement that are expressly written to survive the Termination Date) shall survive
the Termination Date of this Agreement.
3. Public Benefits
3.1 Public Benefit Fee.
As consideration for City's approval and performance of its obligations set forth in this
Agreement, NBCC shall pay to City a fee that shall be in addition to any other fee or charge to
which the Property and the Project would otherwise be subject (herein, the "Public Benefit Fee ")
in the sum of Ten dollars ($10) per square foot of construction for the proposed golf clubhouse
with the unpaid balance of said Public Benefit Fee increased on the first January 1 following the
Effective Date of this Agreement by the percentage increase in the CPI Index between the
Effective Date and said January 151 date (the first "Adjustment Date ") and thereafter with the
unpaid balance of said Public Benefit Fee increased on each subsequent January 1 during the
Term of this Agreement (each, an "Adjustment Date ") by the percentage increase in the CPI
Index in the year prior to the applicable Adjustment Date. The amount of the percentage
increase in the CPI Index on the applicable Adjustment Dates shall in each instance be calculated
based on the then most recently available CPI Index figures such that, for example, if the
112+066751.0090 ,7
2347819.1 M0,20111
Effective Date of this Agreement falls on July 1 and the most recently available CPI Index figure
on the first Adjustment Date (January 1 of the following year) is the CPI Index for November of
the preceding year, the percentage increase in the CPI Index for that partial year (a 6 -month
period) shall be calculated by comparing the CPI Index for November of the preceding year with
the CPI Index for May of the preceding year (a 6 -mouth period). In no event, however, shall
application of the CPI Index reduce the amount of the Public Benefit Fee (or unpaid portion
thereof) below the amount in effect prior to any applicable Adjustment Date. NBCC shall pay
the Public Benefit Fee at the following time(s): prior to issuance of the first building permit for
the construction of the proposed golf clubhouse. Notwithstanding any other provision set forth
in this Agreement to the contrary, during the Tenn of this Agreement City shall not increase the
Public Benefit Fee except pursuant to the CPI Index as stated in this Section 3.1. NBCC
acknowledges by its approval and execution of this Agreement that it is voluntarily agreeing to
pay the Public Benefit Fee, that its obligation to pay the Public Benefit Fee is an essential term of
this Agreement and is not severable from City's obligations and NBCC's vesting rights to be
acquired hereunder, and that NBCC expressly waives any constitutional, statutory, or common
law right it might have in the absence of this Agreement to protest or challenge the payment of
such fee on any ground whatsoever, including without limitation pursuant to the Fifth and
Fourteenth Amendments to the United States Constitution, California Constitution Article I
Section 19, the Mitigation Fee Act (California Government Code Section 66000 et seq.), or
otherwise. In addition to any other remedy set forth in this Agreement for NBCC's default, if
NBCC shall fail to timely pay any portion of the Public Benefit Fee when due City shall have the
right to withhold issuance of any further building permits, occupancy permits, or other
development or building permits for the Project.
4. Development of Project.
4.1 Applicable Regulations: NBCC's Vested Rights and City's Reservation of
Discretion With Respect to Subsequent Development Approvals.
Other than as expressly set forth in this Agreement, during the Term of this Agreement,
(i) NBCC shall have the vested right to Develop the Project on and with respect to the Property
in accordance with the terms of the Development Regulations and this Agreement and (ii) City
shall not prohibit or prevent development of the Property on grounds inconsistent with the
Development Regulations or this Agreement. Notwithstanding the foregoing, nothing herein is
intended to limit or restrict City's discretion with respect to (i) review and approval requirements
contained in the Development Regulations, (ii) exercise of any discretionary authority City
retains under the Development Regulations, (iii) the approval, conditional approval, or denial of
any Subsequent Development Approvals that are required for Development of the Project as of
the Effective Date, or (iv) any environmental approvals that may be required under CEQA or any
other federal or state law or regulation in conjunction with any Subsequent Development
Approvals that may be required for the Project, and in this regard, as to future actions referred to
in clauses (i) -(iv) of this sentence, City reserves its full discretion to the same extent City would
have such discretion in the absence of this Agreement. In addition, it is understood and agreed
that nothing in this Agreement is intended to vest NBCC's rights with respect to any laws,
regulations, rules, or official policies of any other governmental agency or public utility
company with jurisdiction over the Property or the Project; or any applicable federal or state
laws, regulations, rules, or official policies that may be inconsistent with this Agreement and that
override or supersede the provisions set forth in this Agreement, and regardless of whether such
1121066751.0090
2347619.1 aI020 111 8
overriding or superseding laws, regulations, rules, or official policies are adopted or applied to
the Property or the Project prior or subsequent to the Agreement Date.
Development of the property includes approval of this Agreement, a General Plan Land
Use Element Amendment, The Newport Beach Country Club Planned Community Development
Plan, a Mitigated Negative Declaration and Site Development Plans that will allow NBCC to
reconstruct the existing 23,469 square foot golf clubhouse to a maximum of 56,000 square feet
with a maximum building height of 50 feet, subterranean golf cart parking and storage under the
golf clubhouse, a golf course maintenance building and to provide an upgraded project entry,
parking and landscaping. The project requires the approval of a Coastal Development Permit by
the California Coastal Commission.
NBCC has expended and will continue to expend substantial amounts of time and money
planning and preparing for Development of the Project. NBCC represents and City
acknowledges that NBCC would not make these expenditures without this Agreement, and that
NBCC is and will be making these expenditures in reasonable reliance upon its vested rights to
Develop the Project as set forth in this Agreement.
NBCC may apply to City for permits or approvals necessary to modify or amend the
Development specified in the Development Regulations, provided that the request does not
propose an increase in the maximum density, intensity, height, or size of proposed structures, or
a change in use that generates more peak hour traffic or more daily traffic and, in addition,
NBCC may apply to City for approval of minor amendments to existing tentative tract maps,
tentative parcel maps, or associated conditions of approval, consistent with City of Newport
Beach Municipal Code section 19.12.090. This Agreement does not constitute a promise or
commitment by City to approve any such permit or approval, or to approve the same with or
without any particular requirements or conditions, and City's discretion with respect to such
matters shall be the same as it would be in the absence of this Agreement.
4.2 No Conflicting Enactments.
Except to the extent City reserves its discretion as expressly set forth in this Agreement,
during the Tenn of this Agreement City shall not apply to the Project or the Property any
ordinance, policy, rule, regulation, or other measure relating to Development of the Project that
is enacted or becomes effective after the Effective Date to the extent it conflicts with this
Agreement. This Section 4.2 shall not restrict City's ability to enact an ordinance, policy, rule,
regulation, or other measure applicable to the Project pursuant to California Government Code
Section 65866 consistent with the procedures specified in Section 4.3 of this Agreement. In
Pardee Construction Co. v. City of Camarillo (1984) 37 Cal.3d 465, the California Supreme
Court held that a construction company was not exempt from a city's growth control ordinance
even though the city and construction company had entered into a consent judgment (tantamount
to a contract under California law) establishing the company's vested rights to develop its
property consistent with the zoning. The California Supreme Court reached this result because
the consent judgment failed to address the timing of development. The Parties intend to avoid
the result of the Pardee case by acknowledging and providing in this Agreement that NBCC
shall have the vested right to Develop the Project on and with respect to the Property at the rate,
1121066751 -0090
2347819.1 a1020111 9
timing, and sequencing that NBCC deems appropriate within the exercise of NBCC's sole
subjective business judgment, provided that such Development occurs in accordance with this
Agreement and the Development Regulations, notwithstanding adoption by City's electorate of
an initiative to the contrary after the Effective Date. No City moratorium or other similar
limitation relating to the rate, timing, or sequencing of the Development of all or any part of the
Project and whether enacted by initiative or another method, affecting subdivision maps,
building permits, occupancy certificates, or other entitlement to use, shall apply to the Project to
the extent such moratorium or other similar limitation restricts NBCC's vested rights in this
Agreement or otherwise conflicts with the express provisions of this Agreement.
4.3 Reservations of Authority.
Notwithstanding any other provision set forth in this Agreement to the contrary, the laws,
rules, regulations, and official policies set forth in this Section 4.3 shall apply to and govern the
Development of the Project on and with respect to the Property.
4.3.1 Procedural Regulations. Procedural regulations relating to hearing bodies,
petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals,
and any other matter of procedure shall apply to the Property, provided that such procedural
regulations are adopted and applied City -wide or to all other properties similarly situated in City.
4.3.2 Processing and Pennit Fees. City shall have the right to charge and NBCC
shall be required to pay all applicable processing and permit fees to cover the reasonable cost to
City of processing and reviewing applications and plans for any required Subsequent
Development Approvals, building permits, excavation and grading permits, encroachment
permits, and the like, for performing necessary studies and reports in connection therewith,
inspecting tine work constructed or installed by or on behalf of Owner, and monitoring
compliance with any requirements applicable to Development of the Project, all at the rates in
effect at the time fees are due.
4.3.3 Consistent Future City Regulations. City ordinances, resolutions,
regulations, and official policies governing Development which do not conflict with the
Development Regulations, or with respect to such regulations that do conflict, where NBCC has
consented in writing to the regulations, shall apply to the Property.
43.4 Development Exactions Applicable to Propert y. During the Tenn of this
Agreement, NBCC shall be required to satisfy and pay all Development Exactions at the time
performance or payment is due to the same extent and in the same amount(s) that would apply to
NBCC and the Project in the absence of this Agreement; provided, however, that to the extent
the scope and extent of a particular Development Exaction (excluding any development impact
fee) for the Project has been established and fixed by City in the conditions of approval for any
of the Development Regulations approved on or before the Agreement Date City shall not alter,
increase, or modify said Development Exaction in a manner that is inconsistent with such
Development Regulations without NBCC's prior written consent or as may be otherwise
required pursuant to overriding federal or state laws or regulations (Section 4.3.5 hereinbelow).
In addition, nothing in this Agreement is intended or shall be deemed to vest NBCC against the
obligation to pay any of the following (which are not included within the definition of
"Development Exactions ") in the full amount that would apply in the absence of this Agreement:
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2347919.1 a10.20111 10
(i) City's normal fees for processing, envirommental assessment and review, tentative tract and
parcel map review, plan checking, site review and approval, administrative review, building
permit, grading permit, inspection, and similar fees imposed to recover City's costs associated
with processing, reviewing, and inspecting project applications, plans, and specifications; (ii)
fees and charges levied by any other public agency, utility, district, or joint powers authority,
regardless of whether City collects those fees and charges; or (iii) community facility district
special taxes or special district assessments or similar assessments, business license fees, bonds
or other security required for public improvements, transient occupancy taxes, sales taxes,
property taxes, sewer lateral connection fees, water service connection fees, new water meter
fees, and the Property Development Tax payable under Section 3.12 of City's Municipal Code.
4.3.5 Overriding Federal and State Laws and Regulations. Federal and state
laws and regulations that override NBCC's vested rights set forth in this Agreement shall apply
to the Property, together with any City ordinances, resolutions, regulations, and official policies
that are necessary to enable City to comply with the provisions of any such overriding federal or
state laws and regulations, provided that (i) NBCC does not waive its right to challenge or
contest the validity of any such purportedly overriding federal, state, or City law or regulation;
and (ii) upon the discovery of any such overriding federal, state, or City law or regulation that
prevents or precludes compliance with any provision of this Agreement, City or NBCC shall
provide to the other Party a written notice identifying the federal, state, or City law or regulation,
together with a copy of the law or regulation and a brief written statement of the conflict(s)
between that law or regulation and the provisions of this Agreement. Promptly thereafter City
and NBCC shall meet and confer in good faith in a reasonable attempt to determine whether a
modification or suspension of this Agreement, in whole or in part, is necessary to comply with
such overriding federal, state, or City law or regulation. In such negotiations, City and NBCC
agree to preserve the terms of this Agreement and the rights of NBCC as derived from this
Agreement to the maximum feasible extent while resolving the conflict. City agrees to cooperate
with NBCC at no cost to City in resolving the conflict in a manner which minimizes any
financial impact of the conflict upon NBCC. City also agrees to process in a prompt manner
NBCC's proposed changes to the Project and any of the Development Regulations as may be
necessary to comply with such overriding federal, state, or City law or regulation; provided,
however, that the approval of such changes by City shall be subject to the discretion of City,
consistent with this Agreement.
4.3.6 Public Health and Safetv. Any City ordinance, resolution, rule, regulation,
program, or official policy that is necessary to protect persons on the Property or in the
immediate vicinity from conditions dangerous to their health or safety, as reasonably determined
by City, shall apply to the Property, even though the application of the ordinance, resolution, rule
regulation, program, or official policy would result in the impairment of NBCC's vested rights
under this Agreement.
4.3.7 Uniform Building Standards. Existing and future building and building -
related standards set forth in the uniform codes adopted and amended by City from time to time,
including building, plumbing, mechanical, electrical, housing, swimming pool, and fire codes,
and any modifications and amendments thereof shall all apply to the Project and the Property to
the same extent that the same would apply in the absence of this Agreement.
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2347819.1 n102011
4.3.8 Public Works Improvements. To the extent NBCC constructs or installs
any public improvements, works, or facilities, the City standards in effect for such public
improvements, works, or facilities at the time of City's issuance of a permit, license, or other
authorization for construction or installation of same shall apply.
4.3.9 No Guarantee or Reservation of Utility Capacity. Notwithstanding any
other provision set forth in this Agreement to the contrary, nothing in this Agreement is intended
or shall be interpreted to require City to guarantee or reserve to or for the benefit of NBCC or the
Property any utility capacity, service, or facilities that may be needed to serve the Project,
whether domestic or reclaimed water service, sanitary sewer transmission or wastewater
treatment capacity, downstream drainage capacity, or otherwise, and City shall have the right to
limit or restrict Development of the Project if and to the extent that City reasonably determines
that inadequate utility capacity exists to adequately serve the Project at the time Development is
scheduled to commence.
5. Amendment or Cancellation of Agreement
Other than modifications of this Agreement under Section 8.3 of this Agreement, this
Agreement may be amended or canceled in whole or in part only by mutual written and executed
consent of the Parties in compliance with California Government Code section 65868 and City of
Newport Beach Municipal Code section 15.45.060 or by unilateral termination by City in the
event of an uncured default of NBCC.
6. Enforcement.
Unless this Agreement is amended, canceled, modified, or suspended as authorized
herein or pursuant to California Government Code section 65869.5, this Agreement shall be
enforceable by either Party despite any change in any applicable general or specific plan, zoning,
subdivision, or building regulation or other applicable ordinance or regulation adopted by City
(including by City's electorate) that purports to apply to any or all of the Property.
7. Annual Review of NBCC's Compliance With Agreement.
7.1 General.
City shall review this Agreement once during every twelve (12) month period following
the Effective Date for compliance with the terms of this Agreement as provided in Government
Code Section 65865.1. NBCC (including any successor to the owner executing this Agreement
on or before the Agreement Date) shall pay City a reasonable fee in an amount City may
reasonably establish from time to time to cover the actual and necessary costs for the amoral
review. City's failure to timely provide or conduct an annual review shall not constitute a
Default hereunder by City.
7.2 NBCC Obligation to Demonstrate Good Faith Compliance.
During each annual review by City, NBCC is required to demonstrate good faith
compliance with the terms of the Agreement. NBCC agrees to firriish such evidence of good
faith compliance as City, in the reasonable exercise of its discretion, may require, thirty (30) days
prior to each anniversary of the Effective Date during the Term.
112!066751.0090
2347819.1 a10i209 1 12
7.3 Procedure.
The City Council of City shall conduct a duly noticed hearing and shall determine, on the
basis of substantial evidence, whether or not NBCC has, for the period under review, complied
with the terms of this Agreement. If the City Council finds that NBCC has so complied, the
annual review shall be concluded. If the City Council finds, on the basis of substantial evidence,
that NBCC has not so complied, written notice shall be sent to NBCC by first class mail of the
City Council's finding of non- compliance, and NBCC shall be given at least ten (10) days to
cure any noncompliance that relates to the payment of money and thirty (30) days to cure any
other type of noncompliance. If a cure not relating to the payment of money cannot be
completed within thirty (30) days for reasons which are beyond the control of NBCC, NBCC
must commence the cure within such thirty (30) days and diligently pursue such cure to
completion. If NBCC fails to cure such noncompliance within the time(s) set forth above, such
failure shall be considered to be a Default and City shall be entitled to exercise the remedies set
forth in Article 8 below.
7.4 Annual Review a Non- Exclusive Means for Determining, and Requiring Cure of
NBCC's Default.
The annual review procedures set forth in this Article 7 shall not be the exclusive means
for City to identify a Default by NBCC or limit City's rights or remedies for any such Default.
8. Events of Default.
8.1 General Provisions.
In the event of any material default, breach, or violation of the terns of this Agreement
( "Default "), the Party alleging a Default shall have the right to deliver a written notice (each, a
"Notice of Default ") to the defaulting Party. The Notice of Default shall specify the nature of the
alleged Default and a reasonable manner and sufficient period of time (ten (10) days if the
Default relates to the failure to timely make a monetary payment due hereunder and not less than
thirty (30) days in the event of non - monetary Defaults) in which the Default must be cured (the
"Cure Period "). During the Cure Period, the Party charged shall not be considered in Default for
the purposes of termination of this Agreement or institution of legal proceedings. If the alleged
Default is cured within the Cure Period, then the Default thereafter shall be deemed not to exist.
If a non - monetary Default cannot be cured during the Cure Period with the exercise of
commercially reasonable diligence, the defaulting Party must promptly commence to cure as
quickly as possible, and in no event later than thirty (30) days after it receives the Notice of
Default, and thereafter diligently pursue said cure to completion.
8.2 Default by NBCC.
If NBCC is alleged to have committed a non- monetary Default and it disputes the
claimed Default, it may make a written request for an appeal hearing before the City Council
within ten (10) days of receiving the Notice of Default, and a public hearing shall be scheduled at
the next available City Council meeting to consider NBCC's appeal of the Notice of Default.
Failure to appeal a Notice of Default to the City Council within the ten (10) day period shall
waive any right to a hearing on the claimed Default. If NBCC's appeal of the Notice of Default
is timely and in good faith but after a public hearing of NBCC's appeal the City Council
1121066751 -0090
2347819.1 a1020111 13
concludes that NBCC is in Default as alleged in the Notice of Default, the accrual date for
commencement of the thirty (30) day Cure Period provided in Section 8.1 shall be extended until
the City Council's denial of NBCC's appeal is communicated to NBCC.
8.3 City's Option to Terminate Agreement.
In the event of an alleged NBCC Default, City may not terminate this Agreement without
first delivering a written Notice of Default and providing NBCC with the opportunity to cure the
Default within the Cure Period, as provided in Section 8.1, and complying with Section 8.2 if
NBCC timely appeals any Notice of Default with respect to a non- monetary Default. A
termination of this Agreement by City shall be valid only if good cause exists and is supported
by evidence presented to the City Council at or in connection with a duly noticed public hearing
to establish the existence of a Default. The validity of any termination may be judicially
challenged by NBCC. Any such judicial challenge must be brought within thirty (30) days of
service on NBCC, by first class mail, postage prepaid, of written notice of termination by City or
a written notice of City's determination of an appeal of the Notice of Default as provided in
Section 8.2.
8.4 Default by City.
If NBCC alleges a City Default and alleges that the City has not cured the Default within
the Cure Period, NBCC may pursue any equitable remedy available to it under this Agreement,
including, without limitation, an action for a writ of mandamus, injunctive relief, or specific
performance of City's obligations set forth in this Agreement. Upon a City Default, any
resulting delays in NBCC's performance hereunder shall neither be a NBCC Default nor
constitute grounds for termination or cancellation of this Agreement by City and shall, at
NBCC's option (and provided NBCC delivers written notice to City within thirty (30) days of
the commencement of the alleged City Default), extend the Term for a period equal to the length
of the delay.
8.5 Waiver.
Failure or delay by either Party in delivering a Notice of Default shall not waive that
Party's right to deliver a firture Notice of Default of the same or any other Default.
8.6 Specific Performance Remedy.
Due to the size, nature, and scope of the Project, it will not be practical or possible to
restore the Property to its pre - existing condition once implementation of this Agreement has
begun. After such implementation, both NBCC and City may be foreclosed from other choices
they may have had to plan for the development of the Property, to utilize the Property or provide
for other benefits and alternatives. NBCC and City have invested significant time and resources
and performed extensive planning and processing of the Project in agreeing to the terns of this
Agreement and will be investing even more significant time and resources in implementing the
Project in reliance upon the terms of this Agreement. It is not possible to determine the sum of
money which would adequately compensate NBCC or City for such efforts. For the above
reasons, City and NBCC agree that damages would not be an adequate remedy if either City or
NBCC fails to carry out its obligations under this Agreement. Therefore, specific performance
of this Agreement is necessary to compensate NBCC if City fails to carry out its obligations
112066751 -0090
2347919.10010/11 14
under this Agreement or to compensate City if NBCC falls to carry out its obligations under this
Agreement.
8.7 Monetary Damages.
The Parties agree that monetary damages shall not be an available remedy for either Party
for a Default hereunder by the other Party; provided, however, that (i) nothing in this Section 8.7
is intended or shall be interpreted to limit or restrict City's right to recover the Public Benefit
Fees due from NBCC as set forth herein; and (ii) nothing in this Section 8.7 is intended or shall
be interpreted to limit or restrict Owner's indemnity obligations set forth in Article 10 or the
right of the prevailing Party in any Action to recover its litigation expenses, as set forth in
Section 8.10.
8.8 Additional City Remedy for NBCC's Default.
In the event of any Default by NBCC, in addition to any other remedies which may be
available to City, whether legal or equitable, City shall be entitled to receive and retain any
Development Exactions applicable to the Project or the Property, including any fees, grants,
dedications, or improvements to public property which it may have received prior to NBCC's
Default without recourse from NBCC or its successors or assigns.
8.9 No Personal Liability, of Officials, Employees, or Agents.
No City official, employee, or agent shall have any personal liability hereunder for a
Default by City of any of its obligations set forth in this Agreement.
8.10 Recovery of Legal Expenses by Prevailing Party in Any Action.
In any judicial proceeding, arbitration, or mediation (collectively, an "Action ") between
the Parties that seeks to enforce the provisions of this Agreement or arises out of this Agreement,
the prevailing Party shall recover all of its actual and reasonable costs and expenses, regardless
of whether they would be recoverable under California Code of Civil Procedure section 1033.5
or California Civil Code section 1717 in the absence of this Agreement. These costs and
expenses include expert witness fees, attorneys' fees, and costs of investigation and preparation
before initiation of the Action. The right to recover these costs and expenses shall accrue upon
initiation of the Action, regardless of whether the Action is prosecuted to a final judgment or
decision.
9. Force Majeure.
Neither Party shall be deemed to be in Default where failure or delay in performance of
any of its obligations under this Agreement is caused, through no fault of the Party whose
performance is prevented or delayed, by floods, earthquakes, other acts of God, fires, wars, riots
or similar hostilities, strikes or other labor difficulties, state or federal regulations, or court
actions. Except as specified above, nonperformance shall not be excused because of the act or
omission of a third person. In no event shall the occurrence of an event of force majeure operate
to extend the Term of this Agreement. In addition, in no event shall the time for performance of
a monetary obligation, including without limitation NBCC's obligation to pay Public Benefit
Fees, be extended pursuant to this Section.
112,066751 -0090 1 5
2397619.1 M0,20111
10. Indemnity Obligations of NBCC.
10.1 Indemnity Arising From Acts or Omissions of NBCC.
NBCC shall indemnify, defend, and hold harmless City and City's officials, employees,
agents, attorneys, and contractors (collectively, the "City's Affiliated Parties ") from and against
all suits, claims, liabilities, losses, damages, penalties, obligations, and expenses (including but
not limited to attorneys' fees and costs) (collectively, a "Claim ") that may arise, directly or
indirectly, from the, acts, omissions, or operations of NBCC or NBCC's agents, contractors,
subcontractors, agents, or employees in the course of Development of the Project or any other
activities of NBCC relating to the Property or pursuant to this Agreement. City shall have the
right to select and retain counsel to defend any Claim filed against City and /or any of City's
Affiliated Parties, and NBCC shall pay the reasonable cost for defense of any Claim. The
indemnity provisions in this Section 10.1 shall commence on the Agreement Date, regardless of
whether the Effective Date occurs, and shall survive the Termination Date.
10.2 Third Party Liti atg ion.
In addition to its indemnity obligations set forth in Section 10. 1, NBCC shall indemnify,
defend, and hold harmless City and City's Affiliated Parties from and against any Claim against
City or City's Affiliated Parties seeking to attack, set aside, void, or annul the approval of this
Agreement, the Adopting Ordinance, any of the Development Regulations for the Project
(including without limitation any actions taken pursuant to CEQA with respect thereto), any
Subsequent Development Approval, or the approval of any permit granted pursuant to this
Agreement. Said indemnity obligation shall include payment of attorney's fees, expert witness
fees, and court costs. City shall promptly notify NBCC of any such Claim and City shall
cooperate with NBCC in the defense of such Claim. If City fails to promptly notify NBCC of
such Claim, NBCC shall not be responsible to indemnify, defend, and hold City harmless from
such Claim until NBCC is so notified and if City fails to cooperate in the defense of a Claim
NBCC shall not be responsible to defend, indemnify, and hold harmless City during the period
that City so fails to cooperate or for any losses attributable thereto. City shall be entitled to
retain separate counsel to represent City against the Claim and the City's defense costs for its
separate counsel shall be included in NBCC's indemnity obligation, provided that such counsel
shall reasonably cooperate with NBCC in an effort to minimize the total litigation expenses
incurred by NBCC. In the event either City or NBCC recovers any attorney's fees, expert
witness fees, costs, interest, or other amounts from the party or parties asserting the Claim,
NBCC shall be entitled to retain the same (provided it has fully performed its indemnity
obligations hereunder). The indemnity provisions in this Section 10.2 shall commence on the
Agreement Date, regardless of whether the Effective Date occurs, and shall survive the
Termination Date.
10.3 Environmental Indemnity.
In addition to its indemnity obligations set forth in Section 10.1, from and after the
Agreement Date NBCC shall indemnify, defend, and hold harmless City and City's Affiliated
Parties from and against any and all Claims for personal injury or death, property damage,
economic loss, statutory penalties or fines, and damages of any kind or nature whatsoever,
including without limitation attorney's fees, expert witness fees, and costs, based upon or arising
112066751.0090
2347819.1 a10,20111 16
from any of the following: (i) the actual or alleged presence of any Hazardous Substance on or
under any of the Property in violation of any applicable Environmental Law; (ii) the actual or
alleged migration of any Hazardous Substance from the Property through the soils or
groundwater to a location or locations off of the Property; and (iii) the storage, handling,
transport, or disposal of any Hazardous Substance on, to, or from the Property and any other area
disturbed, graded, or developed by NBCC in connection with NBCC's Development of the
Project. The foregoing indemnity obligations shall not apply to any Hazardous Substance placed
or stored on a separate legal lot within the Property after the Lot Termination Date for said lot, as
provided in Section 2.4 of this Agreement. The indemnity provisions in this Section 10.3 shall
commence on the Agreement Date, regardless of whether the Effective Date occurs, and shall
survive the Termination Date.
It. Assignment.
NBCC shall have the right to sell, transfer, or assign (hereinafter, collectively, a
"Transfer ") NBCC's fee title to the Property, in whole or in part, to any person, partnership, joint
venture, firm, or corporation (which successor, as of the effective date of the Transfer, shall
become the "NBCC" under this Agreement) at any time from the Agreement Date until the
Termination Date; provided, however, that no such Transfer shall violate the provisions of the
Subdivision Map Act (Government Code Section 66410 et sea.) or City's local subdivision
ordinance and any such Transfer shall include the assignment and assumption of NBCC's rights,
duties, and obligations set forth in or arising under this Agreement as to the Property or the
portion thereof so Transferred and shall be made in strict compliance with the following
conditions precedent: (i) no transfer or assignment of any of NBCC's rights or interest under this
Agreement shall be made unless made together with the Transfer of all or a part of the Lease
Property; and (ii) prior to the effective date of any proposed Transfer, NBCC (as transferor) shall
notify City, in writing, of such proposed Transfer and deliver to City a written assignment and
assumption, executed in recordable form by the transferring and successor NBCC and in a form
subject to the reasonable approval of the City Attorney of City (or designee), pursuant to which
the NBCC assigns to the successor and the successor assumes from the transferring NBCC all
of the rights and obligations of the transferring NBCC with respect to the Property or portion
thereof to be so Transferred, including in the case of a partial Transfer the obligation to perform
such obligations that must be performed off of the portion of the Property so Transferred that are
a condition precedent to the successor's right to develop the portion of the Property so
Transferred.
Notwithstanding any Transfer, the NBCC shall continue to be jointly and severally liable
to City, together with the successor to NBCC, to perform all of the transferred obligations set
forth in or arising under this Agreement unless the NBCC is given a release in writing by City.
City shall provide such a release upon the transferring NBCC's full satisfaction of all of the
following conditions: (i) the NBCC no longer has a legal or equitable interest in the portion of
the Property so Transferred other than as a beneficiary under a deed of trust; (ii) the transferring
NBCC is not then in Default under this Agreement and no condition exists that with the passage
of time or the giving of notice, or both, would constitute a Default hereunder; (iii) the
transferring NBCC has provided City with the notice and the fully executed written and
recordable assignment and assumption agreement required as set forth in the first paragraph of
this Section 11; and (iv) the successor NBCC either (A) provides City with substitute security
equivalent to any security previously provided by the transferring NBCC to City to secure
112 ;066751.0090
2347619.1 a102011 1
performance of the successor NBCC's obligations hereunder with respect to the Property or the
portion of the Property so Transferred or (B) if the transferred obligation in question is not a
secured obligation, the successor either provides security reasonably satisfactory to City or
otherwise demonstrates to City's reasonable satisfaction that the successor has the financial
resources or commitments available to perform the transferred obligation at the time and in the
manner required under this Agreement and the Development Regulations for the Project.
12. Mortgagee Rights.
12.1 Encumbrances on Property.
The Parties agree that this Agreement shall not prevent or limit NBCC in any manner
from encumbering the Property, any part of the Property, or any improvements on the Property
with any Mortgage securing financing with respect to the construction, development, use, or
operation of the Project.
12.2 Mortgagee Protection.
This Agreement shall be superior and senior to the lien of any Mortgage. Nevertheless,
no breach of this Agreement shall defeat, render invalid, diminish, or impair the lien of any
Mortgage made in good faith and for value. Any acquisition or acceptance of title or any right or
interest in the Property or part of the Property by a Mortgagee (whether due to foreclosure,
trustee's sale, deed in lieu of foreclosure, lease termination, or otherwise) shall be subject to all
of the terms and conditions of this Agreement. Any Mortgagee who takes title to the Property or
any part of the Property shall be entitled to the benefits arising under this Agreement.
12.3 Mortgagee Not Obligated.
Notwithstanding the provisions of this Section 12.3, a Mortgagee will not have any
obligation or duty under the terns of this Agreement to perform the obligations of NBCC or
other affirmative covenants of NBCC, or to guarantee this performance except that: (i) the
Mortgagee shall have no right to develop the Project under the-Development Regulations without
fully complying with the terms of this Agreement; and (ii) to the extent that any covenant to be
performed by NBCC is a condition to the performance of a covenant by City, that performance
shall continue to be a condition precedent to City's performance.
12.4 Notice of Default to Mortga e@ e; Right of Mortgagee to Cure.
Each Mortgagee shall, upon written request to City, be entitled to receive written notice
from City of: (i) the results of the periodic review of compliance specified in Article 7 of this
Agreement, and (ii) any default by NBCC of its obligations set forth in this Agreement.
Each Mortgagee shall have a further right, but not an obligation, to cure the Default
within ten (10) days after receiving a Notice of Default with respect to a monetary Default and
within thirty (30) days after receiving a Notice of Default with respect to a non- monetary
Default. If the Mortgagee can only remedy or cur a non - monetary Default by obtaining
possession of the Property, then the Mortgagee shall have the right to seek to obtain possession
with diligence and continuity through a receiver or otherwise, and to remedy or cure the non -
monetary Default within thirty (30) days after obtaining possession and, except in case of
112066751.0090
2397819.1 a1020111 18
emergency or to protect the public health or safety, City may not exercise any of its judicial
remedies set forth in this Agreement to terminate or substantially alter the rights of the
Mortgagee until expiration of the thirty (30) -day period. In the case of a non- monetary Default
that cannot with diligence be remedied or cured within thirty (30) days, the Mortgagee shall have
additional time as is reasonably necessary to remedy or cure the Default, provided the Mortgagee
promptly commences to cure the non- monetary Default within thirty (30) days and diligently
prosecutes the cure to completion.
13. Miscellaneous Terms.
13.1 Notices.
Any notice or demand that shall be required or permitted by law or any provision of this
Agreement shall be in writing. If the notice or demand will be served upon a Party, it either shall
be personally delivered to the Party; deposited in the United States mail, certified, return receipt
requested, and postage prepaid; or delivered by a reliable courier service that provides a receipt
showing date and time of delivery with courier charges prepaid. The notice or demand shall be
addressed as follows:
TO CITY: City of Newport Beach
3300 Newport Boulevard
Post Office Box 1768
Newport Beach, California 92663 -3884
Attn: City Manager
With a copy to: City Attorney
City of Newport Beach
3300 Newport Boulevard
Post Office Box 1768
Newport Beach, California 92663 -3884
TO NBCC: Newport Beach County Club, Inc.
1600 East Coast Highway
Newport Beach, California, 92660 Attn: Perry
Dickey, President
With a copy to: International Bay Clubs
1221 West Coast Highway
Newport Beach, California 92663
Attn: Dave Wooten, Chief Executive Officer
112;066751 -0090
2347919.1 a1020111 19
Either Party may change the address stated in this Section 13.1 by delivering notice to the
other Party in the manner provided in this Section 13.1, and thereafter notices to such Party shall
be addressed and submitted to the new address. Notices delivered in accordance with this
Agreement shall be deemed to be delivered upon the earlier o£ (i) the date received or (iii) three
business days after deposit in the mail as provided above.
13.2 Project as Private Undertaking,
The Development of the Project is a private undertaking. Neither Party is acting as the
agent of the other in any respect, and each Party is an independent contracting entity with respect
to the terms, covenants, and conditions set forth in this Agreement. This Agreement forms no
partnership, joint venture, or other association of any kind. The only relationship between the
Parties is that of a government entity regulating the Development of private property by the
owner of the property.
13.3 Cooperation.
Each Party shall cooperate with and provide reasonable assistance to the other Party to
the extent consistent with and necessary to implement this Agreement. Upon the request of a
Party at any time, the other Party shall promptly execute, with acknowledgement or affidavit if
reasonably required, and file or record the required instruments and writings and take any actions
as may be reasonably necessary to implement this Agreement or to evidence or consummate the
transactions contemplated by this Agreement.
13.4 Estoppel Certificates.
At any time, either Party may deliver written notice to the other Party requesting that that
Party certify in writing that, to the best of its knowledge: (i) this Agreement is in full force and
effect and is binding on the Party; (ii) this Agreement has not been amended or modified either
orally or in writing or, if this Agreement has been amended, the Party providing the certification
shall identify the amendments or modifications; and (iii) the requesting Party is not in Default in
the performance of its obligations under this Agreement and no event or situation has occurred
that with the passage of time or the giving of Notice or both would constitute a Default or, if
such is not the case, then the other Party shall describe the nature and amount of the actual or
prospective Default.
The Party requested to furnish an estoppel certificate shall execute and return the
certificate within thirty (30) days following receipt. Requests for the City to furnish an estoppel
certificate shall include reimbursement for all administrative costs incurred by the City including
reasonable attorneys fees incurred by the City in furnishing an estoppels certificate.
13.5 Rules of Construction.
The singular includes the plural; the masculine and neuter include the feminine; "shall' is
mandatory; and "may" is permissive.
112 +0667510090
2347819.1 x10120 111 20
13.6 Time Is of the Essence.
Time is of the essence regarding each provision of this Agreement as to which time is an
element.
13.7 Waiver.
The failure by a Party to insist upon the strict performance of any of the provisions of this
Agreement by the other Party, and failure by a Party to exercise its rights upon a Default by the
other Party, shall not constitute a waiver of that Party's right to demand strict compliance by the
other Party in the future.
13.8 Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall be
identical and may be introduced in evidence or used for any other purpose without any other
counterpart, but all of which shall together constitute one and the same agreement.
13.9 Entire Agreement.
This Agreement constitutes the entire agreement between the Parties and supersedes all
prior agreements and understandings, both written and oral, between the Parties with respect to
the subject matter addressed in this Agreement Severability.
13.10 Severabilitv
The Parties intend that each and every obligation of the Parties is interdependent and
interrelated with the other, and if any provision of this Agreement or the application of the
provision to any Party or circumstances shall be held invalid or unenforceable to any extent, it is
the intention of the Parties that the remainder of this Agreement or the application of the
provision to persons or circumstances shall be rendered invalid or unenforceable. The Parties
intend that neither Party shall receive any of the benefits of the Agreement without the full
performance by such Party of all of its obligations provided for under this Agreement. Without
limiting the generality of the foregoing, the Parties intend that NBCC shall not receive any of the
benefits of this Agreement if any of NBCC's obligations are rendered void or unenforceable as
the result of any third party litigation, and City shall be free to exercise its legislative discretion
to amend or repeal the Development Regulations applicable to the Property and NBCC shall
cooperate as required, despite this Agreement, should third party litigation result in the
nonperformance of NBCC's obligations under this Agreement. The provisions of this Section
13.10 shall apply regardless of whether the Effective Date occurs and after the Termination Date.
13.11 Construction.
Both City and NBCC are sophisticated parties who were represented by independent
counsel throughout the negotiations or City and NBCC had the opportunity to be so represented
and voluntarily chose to not be so represented. City and NBCC each agree and acknowledge that
the terns of this Agreement are fair and reasonable, taking into account their respective
purposes, terms, and conditions. This Agreement shall therefore be construed as a whole
consistent with its fair meaning, and no principle or presumption of contract construction or
112,066751.0090
2347819.1 aM20111 21
interpretation shall be used to construe the whole or any part of this Agreement in favor of or
against either Party.
13.12 Successors and Assigns; Constructive Notice and Acceptance.
The burdens of this Agreement shall be binding upon, and the benefits of this Agreement
shall inure to, all successors in interest to the Parties to this Agreement. All provisions of this
Agreement shall be enforceable as equitable servitudes and constitute covenants running with the
land. Each covenant to do or refrain from doing some act hereunder with regard to Development
of the Property: (i) is for the benefit of and is a burden upon every portion of the Property; (ii)
runs with the Property and each portion thereof; and (iii) is binding upon each Party and each
successor in interest during its ownership of the Property or any portion thereof. Every person or
entity who now or later owns or acquires any right, title, or interest in any part of the Project or
the Property is and shall be conclusively deemed to have consented and agreed to every
provision of this Agreement. This Section 13.12 applies regardless of whether the instrument by
which such person or entity acquires the interest refers to or acknowledges this Agreement and
regardless of whether such person or entity has expressly entered into an assignment and
assumption agreement as provided for in Section 11.
13.13 No Third Party Beneficiaries.
The only Parties to this Agreement are City and NBCC. This Agreement does not
involve any third party beneficiaries, and it is not intended and shall not be construed to benefit
or be enforceable by any other person or entity.
13.14 Applicable Law and Venue.
This Agreement shall be construed and enforced consistent with the internal laws of the
State of California, without regard to conflicts of law principles. Any action at law or in equity
arising under this Agreement or brought by any Party for the purpose of enforcing, construing, or
determining the validity of any provision of this Agreement shall be filed and tried in the
Superior Court of the County of Orange, State of California, or the United States District Court
for the Central District of California. The Parties waive all provisions of law providing for the
removal or change of venue to any other court.
13.15 Section Headings.
All section headings and subheadings are inserted for convenience only and shall not
affect construction or interpretation of this Agreement.
13.16 Incorporation of Recitals and Exhibits.
All of the Recitals are incorporated into this Agreement by this reference. Exhibits A and
B are attached to this Agreement and incorporated by this reference as follows:
112 ;066751 -0090
2347819.1 M020111 22
EXHIBIT
DESCRIPTION
DESIGNATION
A
Legal Description of Property
Overall Site Plan and Overal Site Plan
BI &B2
Alternative
13.17 Recordation,
The City Clerk of City shall record this Agreement and any amendment, modification, or
cancellation of this Agreement in the Office of the County Recorder of the County of Orange
within the period required by California Government Code section 65868.5 and City of Newport
Beach Municipal Code section 15.45.090. The date of recordation of this Agreement shall not
modify or amend the Effective Date or the Termination Date.
[SIGNATURE PAGE FOLLOWS]
112,066751.0090
2347919.1 a10.20111 23
SIGNATURE PAGE TO
DEVELOPMENT AGREEMENT
"NBCC"
By:
Its:
By:
Its:
"CITY"
CITY OF NEWPORT BEACH
Its: Mayor
ATTEST:
City Clerk
APPROVED AS TO FORM:
Aaron Harp, City Attorney
11210667510090
2147819.1 a10,2011 24
STATE OF CALIFORNIA
COUNTY OF ORANGE
On , before me, the undersigned, a Notary Public in and for said State,
personally appeared and , personally known
to me to be the persons whose names are subscribed to the within instrument and acknowledged
to me that they executed the same in their authorized capacities and that by their signature on the
instrument the persons, or the entity upon behalf of which the persons acted, executed the
instrument.
Witness my hand and official seal.
Notary Public in and for
said County and State
STATE OF CALIFORNIA
COUNTY OF ORANGE
On , before me, the undersigned, a Notary Public in and for said State,
personally appeared and , personally known
to me to be the persons whose names are subscribed to the within instrument and acknowledged
to me that they executed the same in their authorized capacities and that by their signature on the
instrument the persons, or the entity upon behalf of which the persons acted, executed the
instrument.
Witness my hand and official seal.
Notary Public in and for
said County and State
112i0667560090
2347819.1 a10,20i11 -25-
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
[TO BE INSERTED]
112,066751.0090
2347819.1 a1020 /11
EXHIBIT Bl and EXHIBIT B2
OVERALL SITE PLAN AND OVERALL SITE PLAN ALTERNATIVE
[TO BE INSERTED]
112066751 -0090
2347519.1 a1020111
SCANNED City of Newport Beach
Planning Department
Memorandum FILE COPY
To: Planning Commission
From: Rosalinh Ung, Associate Planner
Date: November 10, 2011
Re: Final Draft of Development Agreement
Newport Beach Country Club (PA2008 -152)
Applicant: Newport Beach Country Club Inc.
Attached for your review is the final draft Development Agreement (DA) that
has been reviewed by the new owner with minor changes per their request. The
City Attorney's Office indicates that the attached draft agreement is consistent
with applicable provision of State law governing DAs. The terms and conditions
remain the same as the previous included draft.
Attachment: Final Draft Development Agreement
Q SEW PORT
c9G, ppµH�P
CITY OF NEWPORT BEACH
DATE: November 10, 2011
CITY ATTORNEY'S OFFICE
Correspondence
Item No. 3a
Newport Beach Country Club
PA2008 -152
TO: Kimberly Brandt, Community Development Director
Rosalinh Ung, Associate Planner
FROM: Leonie Mulvihill, Assistant City Attorney
MATTER: Newport Beach Country Club: Development Agreement
No.: A11 -00526
SUBJECT: Transmittal of Development Agreement
Attached please find a copy of the proposed Development Agreement between the City of
Newport Beach and The Newport Beach Country Club, Inc.
„cN
[A11 -00526] -Click here to enter text.
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92663 -3884
Attn: City Clerk
(Space Above This Line Is for Recorder's Use Only)
This Agreement is recorded at the request and for
the benefit of the City of Newport Beach and is
exempt from the payment of a recording fee
pursuant to Government Code §§ 6103 and 27383.
DEVELOPMENT AGREEMENT
between
CITY OF NEWPORT BEACH
and
THE NEWPORT BEACH COUNTRY CLUB, INC.
(Concerning 1600 East Coast Highway)
Al 1-00526- NBCC -NBCC, Inc
Int'I Bay Clubs 10.20.11 0 CLr N
TABLE OF CONTENTS
Definitions .......................
Page
.......................... 2
2. General Provisions .............................................................................. ..............................6
2.1 Plan Consistency, Zoning Implementation ............................. ..............................6
2.2 Binding Effect of Agreement .................................................. ..............................6
2.3 NBCC Representations and Warranties Regarding Ownership of the
Property and Related Matters Pertaining to this Agreement .. ..............................6
2.4 Term ........................................................................................ ..............................7
3. Public Benefits ................................................................................... ............................... 7
3.1 Public Benefit Fee ................................................................... ..............................7
4. Development of Project ...................................................................... ..............................8
4.1 Applicable Regulations; NBCC's Vested Rights and City's Reservation of
Discretion With Respect to Subsequent Development Approva ls .......................8
4.2 No Conflicting Enactments ..................................................... ..............................9
4.3 Reservations of Authority ...................................................... .............................10
5. Amendment or Cancellation of Agreement ....................................... .............................12
6. Enf orcement ....................................................................................... .............................12
7. Annual Review of NBCC's Compliance With Agreement ............... .............................13
7.1 General ................................................................................... .............................13
7.2 NBCC Obligation to Demonstrate Good Faith Compliance . .............................13
7.3 Procedure ............................................................................... .............................13
7.4 Annual Review a Non - Exclusive Means for Determining and Requiring
Cureof NBCC's Default ........................................................ .............................13
8. Events of Default ............................................................................... .............................13
8.1 General Provisions ................................................................. .............................13
8.2 Default by NBCC ................................................................... .............................14
8.3 City's Option to Terminate Agreement ................................. .............................14
8.4 Default by City ....................................................................... .............................14
8.5 Waiver .................................................................................... .............................15
8.6 Specific Performance Remedy ............................................... .............................15
8.7 Monetary Damages ................................................................ .............................15
8.8 Additional City Remedy for NBCC's Default ....................... .............................15
8.9 No Personal Liability of City Officials, Employees, or Agents ......................... 15
8.10 Recovery of Legal Expenses by Prevailing Party in Any Action .......................16
9. Force Majeure .................................................................................... .............................16
10. Indemnity Obligations of NBCC ....................................................... .............................16
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10.1 Indemnity Arising From Acts or Omissions of NBCC .......... .............................16
10.2 Third Party Litigation ............................................................ .............................16
11. Assignment ........................................................................................ .............................17
12. Mortgagee Rights ............................................................................... .............................18
12.1 Encumbrances on Property .................................................... .............................18
12.2 Mortgagee Protection ............................................................. .............................18
12.3 Mortgagee Not Obligated ...................................................... .............................19
12.4 Notice of Default to Mortgagee; Right of Mortgagee to Cure ............................19
13. Miscellaneous Terms ......................................................................... .............................19
13.1
Notices ................................................................................... .............................19
13.2
Project as Private Undertaking .............................................. .............................20
13.3
Cooperation ............................................................................ .............................21
13A
Estoppel Certificates .............................................................. .............................21
13.5
Rules of Construction ............................................................ .............................21
13.6
Time Is of the Essence ........................................................... .............................21
13.7
Waiver .................................................................................... .............................21
13.8
Counterparts ........................................................................... .............................21
13.9
Entire Agreement ................................................................... .............................22
13.11
Construction ........................................................................... .............................22
13.12
Successors and Assigns; Constructive Notice and Acceptance ..........................22
13.13
No Third Party Beneficiaries ................................................. .............................23
13.14
Applicable Law and Venue .................................................... .............................23
13.15
Section Headings ................................................................... .............................23
13.16
Incorporation of Recitals and Exhibits .................................. .............................23
13.17
Recordation ............................................................................ .............................23
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DEVELOPMENT AGREEMENT
(Pursuant to California Government Code sections 65864 - 65869.5)
This DEVELOPMENT AGREEMENT (the "Agreement') is dated for reference
purposes as of the _ day of , 201_ (the "Agreement Date "), and is being entered
into by and between the CITY OF NEWPORT BEACH ( "City "), and Newport Beach Country
Club, Incorporated ("NBCC"). City and NBCC are sometimes collectively referred to in this
Agreement as the "Parties" and individually as a "Party."
RECITALS
A. The Newport Beach Country Club, Incorporated (also referred to herein as
NBCC) is the owner and operator of The Newport Beach Country Club subject to a lease with
O'Hill Properties, a California limited partnership, Allan Fainbarg and Sara Fainbarg as Trustees
of the Fainbarg Family Trust dated April 19, 1982 , Mesa Shopping Center -East, a California
General Partnership, and Mira Mesa -West, a California limited liability company (the "Lease "),
the fee owners of the 132 -acre parcel of real property (Property) that is described in the legal
description attached hereto as Exhibit A and depicted on the Overall Site Plan attached hereto as
Exhibit B I and Overall Site Plan Alternative Exhibit B2.
B. In order to encourage investment in, and commitment to, comprehensive planning
and public facilities financing, strengthen the public planning process and encourage private
implementation of the local general plan, provide certainty in the approval of projects in order to
avoid waste of time and resources, and reduce the economic costs of development by providing
assurance to property owners that they may proceed with projects consistent with existing land
use policies, rules, and regulations, the California Legislature adopted California Government
Code sections 65864- 65869.5 (the "Development Agreement Statute ") authorizing cities and
counties to enter into development agreements with persons or entities having a legal or
equitable interest in real property located within their jurisdiction.
C. On March 13, 2007, the City Council adopted Ordinance No. 2007 -6, entitled
"Ordinance Amending Chapter 15.45 of City of Newport Beach Municipal Code Regarding
Development Agreements" (the "Development Agreement Ordinance"). This Agreement is
consistent with the Development Agreement Ordinance.
D. As detailed in Section 4 of this Agreement, NBCC has agreed to provide a Public
Benefit Fee as consideration for this Agreement:
E. This Agreement is consistent with the City of Newport Beach General Plan,
including without limitation the General Plan's designation of the Property as "PR (Parks and
Recreation) the Coastal Land Use Plan's designation as "OS (Open Space)" and the Newport
Beach Country Club Planned Community District (PA 2008 -152) that was adopted in 1997 by
Ordinance No. 97 -10 and amended in 201_ by Ordinance No. _- in order to establish
appropriate zoning to regulate land use and development of the Property consistent with the
General Plan.
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F. In recognition of the significant public benefits that this Agreement provides, the
City Council has found that this Agreement: (i) is consistent with the City of Newport Beach
General Plan as of the date of this Agreement; (ii) is in the best interests of the health, safety, and
general welfare of City, its residents, and the public; (iii) is entered into pursuant to, and
constitutes a present exercise of, City's police power; (iv) is consistent and has been approved
consistent with the Final Environmental Impact Report for the City of Newport Beach General
Plan 2006 Update (State Clearinghouse No. 2006011119) and the Mitigated Negative
Declaration for the Newport Beach Country Club Planned Community District (PA 2008 -152 by
the City Council on or before the Agreement Date, both of which analyze the environmental
effects of the proposed development of the Project on the Property; and (v) is consistent and has
been approved consistent with provisions of California Government Code section 65867 and
City of Newport Beach Municipal Code chapter 15.45.
G. On , 201 City's Planning Commission held a public hearing on
this Agreement, made findings and determinations with respect to this Agreement, and
recommended to the City Council that the City Council approve this Agreement.
H. On , 201. the City Council also held a public hearing on this
Agreement and considered the Planning Commission's recommendations and the testimony and
information submitted by City staff, NBCC, and members of the public. On
201. consistent with applicable provisions of the Development Agreement Statute and
Development Agreement Ordinance, the City Council adopted its Ordinance No. _ (the
"Adopting Ordinance"), finding this Agreement to be consistent with the City of Newport Beach
General Plan and approving this Agreement.
AGREEMENT
NOW, THEREFORE, City and NBCC agree as follows:
Definitions.
In addition to any terms defined elsewhere in this Agreement, the following terms when
used in this Agreement shall have the meanings set forth below:
"Action" shall have the meaning ascribed in Section 8.10 of this Agreement.
"Adopting Ordinance" shall mean City Council Ordinance No. _ approving and
adopting this Agreement.
"Agreement" shall mean this Development Agreement, as the same may be amended
from time to time.
" Ag[eement Date' shall mean the date first written above, which date is the date the City
Council adopted the Adopting Ordinance.
"CEOA" shall mean the California Environmental Quality Act (California Public
Resources Code sections 21000 - 21177) and the implementing regulations promulgated
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thereunder by the Secretary for Resources (California Code of Regulations, Title 14, section
15000 et seq.), as the same may be amended from time to time.
"Cit ' shall mean the City of Newport Beach, a California charter city.
"City Council" shall mean the governing body of City.
"City's Affiliated Parties" shall have the meaning ascribed in Section 10.1 of this
Agreement.
"Claim" shall have the meaning ascribed in Section 10.1 of this Agreement.
"Coastal Development Permit" shall mean a permit issued by the California Coastal
Commission pursuant to subdivision (a) of Section 30600 of the California Coastal Act.
"CPI Index" shall mean the Consumer Price Index published from time to time by the
United States Department of Labor for all urban consumers (all items) for the smallest
geographic area that includes the City or, if such index is discontinued, such other similar index
as may be publicly available that is selected by City in its reasonable discretion.
"Cure Peri od" shall have the meaning ascribed in Section 8.1 of this Agreement.
"Default" shall have the meaning ascribed to that term in Section 8.1 of this Agreement.
"Develop" or "Development" shall mean to improve or the improvement of the Property
for the purpose of completing the structures, improvements, and facilities comprising the Project,
including but not limited to: grading; the construction of infrastructure and public facilities
related to the Project, whether located within or outside the Property; the construction of all of
the private improvements and facilities comprising the Project; the preservation or restoration, as
required of natural and man-made or altered open space areas; and the installation of
landscaping. The terms "Develop" and "Development," as used herein, do not include the
maintenance, repair, reconstruction, replacement, or redevelopment of any structure,
improvement, or facility after the initial construction and completion thereof.
"Development Agreement Ordinance" shall mean Chapter 15.45 of the City of Newport
Beach Municipal Code.
"Development Agreement Statute" shall mean California Government Code sections
65864- 65869.5, inclusive.
"Development Exactions" shall mean any requirement of City in connection with or
pursuant to any ordinance, resolution, rule, or official policy for the dedication of land, the
construction or installation of any public improvement or facility, or the payment of any fee or
charge in order to lessen, offset, mitigate, or compensate for the impacts of Development of the
Project on the environment or other public interests.
"Development Plan" shall mean the General Plan Land Use Element Amendment, the
Newport Beach Planned Community District, Development Plan approved by the City Council
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on or before the Agreement Date, as the same may be amended from time to time consistent with
this Agreement.
"Development Regulations" shall mean the following regulations as they are in effect as
of the Effective Date and to the extent they govern or regulate the development of the Property,
but excluding any amendment or modification to the Development Regulations adopted,
approved, or imposed after the Effective Date that impairs or restricts NBCC's rights set forth in
this Agreement, unless such amendment or modification is expressly authorized by this
Agreement or is agreed to by NBCC in writing: the General Plan; the Development Plan; and, to
the extent not expressly superseded by the Development Plan or this Agreement, all other land
use and subdivision regulations governing the permitted uses, density and intensity of use,
design, improvement, and construction standards and specifications, procedures for obtaining
required City permits and approvals for development, and similar matters that may apply to
development of the Project on the Property during the Term of this Agreement that are set forth
in Title 15 of the Municipal Code (buildings and construction), Title 19 of the Municipal Code
(subdivisions), and Title 20 of the Municipal Code (planning and zoning), but specifically
excluding all other sections of the Municipal Code, including without limitation Title 5 of the
Municipal Code (business licenses and regulations). Notwithstanding the foregoing, the term
"Development Regulations," as used herein, does not include any City ordinance, resolution,
code, rule, regulation or official policy governing any of the following: (i) the conduct of
businesses, professions, and occupations; (ii) taxes and assessments; (iii) the control and
abatement of nuisances; (iv) the granting of encroachment permits and the conveyance of rights
and interests which provide for the use of or the entry upon public property; or (v) the exercise of
the power of eminent domain.
"Effective Date" shall mean the latest of the following dates, as applicable: (i) the date
that is thirty (30) days after the Agreement Date; (ii) if a referendum concerning the Adopting
Ordinance or any of the Development Regulations approved on or before the Agreement Date is
timely qualified for the ballot and a referendum election is held concerning the Adopting
Ordinance or any of such Development Regulations, the date on which the referendum is
certified resulting in upholding and approving the Adopting Ordinance and such Development
Regulations and becomes effective, if applicable; (iii) if a lawsuit is timely filed challenging the
validity or legality of the Adopting Ordinance, this Agreement, and/or any of the Development
Regulations approved on or before the Agreement Date, the date on which said challenge is
finally resolved in favor of the validity or legality of the Adopting Ordinance, this Agreement,
and/or the applicable Development Regulations, whether such finality is achieved by a final non-
appealable judgment, voluntary or involuntary dismissal (and the passage of any time required to
appeal an involuntary dismissal), or binding written settlement agreement; or (iv) the date of
approval of a coastal development permit for the Project. Promptly after the Effective Date
occurs, the Parties agree to cooperate in causing an appropriate instrument to be executed and
recorded against the Property memorializing the Effective Date.
"Environmental Laws" means all federal, state, regional, county, municipal, and local
laws, statutes, ordinances, rules, and regulations which are in effect as of the Agreement Date,
and all federal, state, regional, county, municipal, and local laws, statutes, rules, ordinances,
rules, and regulations which may hereafter be enacted and which apply to the Property or any
part thereof, pertaining to the use, generation, storage, disposal, release, treatment, or removal of
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any Hazardous Substances, including without limitation the following: the Comprehensive
Environmental Response Compensation and Liability Act of 1980, 42 U.S.C. Sections 9601,
et M., as amended ( "CERCLA'); the Solid Waste Disposal Act, as amended by the Resource
Conservation and Recovery Act of 1976, 42 U.S.C. Sections 6901, et seM., as amended
( "RCRA "); the Emergency Planning and Community Right to Know Act of 1986, 42 U.S.C.
Sections 11001 et sea., as amended; the Hazardous Materials Transportation Act, 49 U.S.C.
Section 1801, et §M., as amended; the Clean Air Act, 42 U.S.C. Sections 7401 et sea., as
amended; the Clean Water Act, 33 U.S.C. Section 1251, et LN., as amended; the Toxic
Substances Control Act, 15 U.S.C. Sections 2601 et sea., as amended; the Federal Insecticide,
Fungicide and Rodenticide Act, 7 U.S.C. Sections 136 et M. as amended; the Federal Safe
Drinking Water Act, 42 U.S.C. Sections 300f et se ., as amended; the Federal Radon and Indoor
Air Quality Research Act, 42 U.S.C. Sections 7401 et sea., as amended; the Occupational Safety
and Health Act, 29 U.S.C. Sections 651 et sea., as amended; and California Health and Safety
Code Section 25100, et M.
"First Building Permit" shall mean the first building permit that is issued for the project.
"General Plan" shall mean City's 2006 General Plan adopted by the City Council on July
25, 2006, by Resolution No. 2006 -76, excluding any amendment after the Effective Date that
impairs or restricts NBCC's rights set forth in this Agreement, unless such amendment is
expressly authorized by this Agreement, is authorized by Sections 8 or 9, or is specifically
agreed to by NBCC. The Land Use Plan of the Land Use Element of the General Plan was
approved by City voters in a general election on November 7, 2006.
"Hazardous Substances" means any toxic substance or waste, pollutant, hazardous
substance or waste, contaminant, special waste, industrial substance or waste, petroleum or
petroleum- derived substance or waste, or any toxic or hazardous constituent or additive to or
breakdown component from any such substance or waste, including without limitation any
substance, waste, or material regulated under or defined as "hazardous" or "toxic" under any
Environmental Law.
"Mortgage' shall mean a mortgage, deed of trust, sale and leaseback arrangement, or any
other form of conveyance in which the Property, or a part or interest in the Property, is pledged
as security and contracted for in good faith and for fair value.
"Mortgagee" shall mean the holder of a beneficial interest under a Mortgage or any
successor or assignee of the Mortgagee.
"Notice of Default" shall have the meaning ascribed in Section 8.1 of this Agreement.
"lam" or "Parties" shall mean either City or NBCC or both, as determined by the
context.
"Project" shall mean all on -site and off -site improvements that NBCC is authorized
and/or required to construct with respect to each parcel of the Property, as provided in this
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Agreement and the Development Regulations, as the same may be modified or amended from
time to time consistent with this Agreement and applicable law.
"Propert y" is described in Exhibit A and depicted on Exhibit B.
"Public Benefit Fee" shall have the meaning ascribed in Section 3.1 of this Agreement.
"Subsequent Development Approvals" shall mean all discretionary development and
building approvals that NBCC is required to obtain to Develop the Project on and with respect to
the Property after the Agreement Date consistent with the Development Regulations and this
Agreement, with the understanding that except as expressly set forth herein City shall not have
the right subsequent to the Effective Date and during the Term of this Agreement to adopt or
impose requirements for any such Subsequent Development Approvals that do not exist as of the
Agreement Date.
"Term" shall have the meaning ascribed in Section 2.4 of this Agreement.
"Termination Date" and "Lot Termination Date" shall have the meaning ascribed in
Section 2.4 of this Agreement.
"Transfer" shall have the meaning ascribed in Section 11 of this Agreement.
2. General Provisions.
2.1 Plan Consistency, Zoning Implementation.
This Agreement and the Development Regulations applicable to the Property will cause
City's zoning and other land use regulations for the Property to be consistent with the General
Plan.
2.2 Bindine Effect of Agreement.
The Property is hereby made subject to this Agreement. Development of the Property is
hereby authorized and shall be carried out in accordance with the terms of this Agreement.
2.3 NBCC Representations and Warranties Regarding Ownership of the Property and
Related Matters Pertaining to this Agreement.
NBCC and each person executing this Agreement on behalf of NBCC hereby represents
and warrants to City as follows: (i) that NBCC is the lessee of the Property; (ii) if NBCC or any
co -owner comprising NBCC is a legal entity that such entity is duly formed and existing and is
authorized to do business in the State of California; (iii) if NBCC or any co -owner comprising
NBCC is a natural person that such natural person has the legal right and capacity to execute this
Agreement; (iv) that all actions required to be taken by all persons and entities comprising
NBCC to enter into this Agreement have been taken and that NBCC has the legal authority to
enter into this Agreement; (v) that NBCC's entering into and performing its obligations set forth
in this Agreement will not result in a violation of any obligation, contractual or otherwise, that
NBCC or any person or entity comprising NBCC has to any third party; (vi) that neither NBCC
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nor any co -owner comprising NBCC is the subject of any voluntary or involuntary bankruptcy
petition; and (vii) that NBCC has no actual knowledge of any pending or threatened claims of
any person or entity affecting the validity of any of the representations and warranties set forth in
clauses (i) -(vi), inclusive, or affecting NBCC's authority or ability to enter into or perform any of
its obligations set forth in this Agreement.
2.4 Term.
The term of this Agreement (the "Term ") shall commence on the Agreement Date and
shall terminate on the "Termination Date."
Notwithstanding any other provision set forth in this Agreement to the contrary, if either
Party reasonably determines that the Effective Date of this Agreement will not occur because (i)
the Adopting Ordinance or any of the Development Regulations approved on or before the
Agreement Date for the Project has/have been disapproved by City's voters at a referendum
election or (ii) a final non - appealable judgment is entered in a judicial action challenging the
validity or legality of the Adopting Ordinance, this Agreement, and/or any of the Development
Regulations for the Project approved on or before the Agreement Date such that this Agreement
and/or any of such Development Regulations is /are invalid and unenforceable in whole or in
such a substantial part that the judgment substantially impair; such Party's rights or substantially
increases its obligations or risks hereunder or thereunder, then such Party shall have the right to
terminate this Agreement upon delivery of a written notice of termination to the other Party, in
which event neither Party shall have any further rights or obligations hereunder except that
NBCC's indemnity obligations set forth in Article 10 shall remain in full force and effect and
shall be enforceable, and the Development Regulations applicable to the Project and the Property
only (but not those general Development Regulations applicable to other properties in the City)
shall similarly be null and void at such time.
The Termination Date shall be the earliest of the following dates: (i) the tenth (10th)
anniversary of the Agreement Date, as said date may be extended in accordance with Section 5
of this Agreement; (ii) such earlier date that this Agreement may be terminated in accordance
with Articles 5, 7, and/or Section 8.3 of this Agreement and/or Sections 65865.1 and/or 65868 of
the Development Agreement Statute; or (iii) completion of the Project in accordance with the
terms of this Agreement, including Owner's complete satisfaction, performance, and payment, as
applicable, of all Development Exactions, the issuance of all required final occupancy permits,
and acceptance by City or applicable public agency(ies) or private entity(ies) of all required
offers of dedication.
Notwithstanding any other provision set forth in this Agreement to the contrary, the
provisions set forth in Article 10 and Section 13.10 (as well as any other NBCC obligations set
forth in this Agreement that are expressly written to survive the Termination Date) shall survive
the Termination Date of this Agreement.
3. Public Benefits.
3.1 Public Benefit Fee.
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As consideration for City's approval and performance of its obligations set forth in this
Agreement, NBCC shall pay to City a fee that shall be in addition to any other fee or charge to
which the Property and the Project would otherwise be subject (herein, the "Public Benefit Fee ")
in the sum of Ten dollars ($10) per square foot of construction for the proposed golf clubhouse
with the unpaid balance of said Public Benefit Fee increased on the first January 1 following the
Effective Date of this Agreement by the percentage increase in the CPI Index between the
Effective Date and said January I' date (the first "Adjustment Date ") and thereafter with the
unpaid balance of said Public Benefit Fee increased on each subsequent January 1 during the
Term of this Agreement (each, an "Adjustment Date ") by the percentage increase in the CPI
Index in the year prior to the applicable Adjustment Date. The amount of the percentage
increase in the CPI Index on the applicable Adjustment Dates shall in each instance be calculated
based on the then most recently available CPI Index figures such that, for example, if the
Effective Date of this Agreement falls on July 1 and the most recently available CPI Index figure
on the first Adjustment Date (January 1 of the following year) is the CPI Index for November of
the preceding year, the percentage increase in the CPI Index for that partial year (a 6 -month
period) shall be calculated by comparing the CPI Index for November of the preceding year with
the CPI Index for May of the preceding year (a 6 -month period). In no event, however, shall
application of the CPI Index reduce the amount of the Public Benefit Fee (or unpaid portion
thereof) below the amount in effect prior to any applicable Adjustment Date. NBCC shall pay
the Public Benefit Fee at the following time(s): prior to issuance of the first building permit for
the construction of the proposed golf clubhouse. Notwithstanding any other provision set forth
in this Agreement to the contrary, during the Term of this Agreement City shall not increase the
Public Benefit Fee except pursuant to the CPI Index as stated in this Section 3.1. NBCC
acknowledges by its approval and execution of this Agreement that it is voluntarily agreeing to
pay the Public Benefit Fee, that its obligation to pay the Public Benefit Fee is an essential term of
this Agreement and is not severable from City's obligations and NBCC's vesting rights to be
acquired hereunder, and that NBCC expressly waives any constitutional, statutory, or common
law right it might have in the absence of this Agreement to protest or challenge the payment of
such fee on any ground whatsoever, including without limitation pursuant to the Fifth and
Fourteenth Amendments to the United States Constitution, California Constitution Article I
Section 19, the Mitigation Fee Act (California Government Code Section 66000 et seq.), or
otherwise. In addition to any other remedy set forth in this Agreement for NBCC's default, if
NBCC shall fail to timely pay any portion of the Public Benefit Fee when due City shall have the
right to withhold issuance of any further building permits, occupancy permits, or other
development or building permits for the Project.
4. Development of Project.
4.1 AWlicable RegWations: NBCC's Vested Rights and City's Reservation of
Discretion With Respect to Subsequent Development Approvals.
Other than as expressly set forth in this Agreement, during the Term of this Agreement,
(i) NBCC shall have the vested right to Develop the Project on and with respect to the Property
in accordance with the terms of the Development Regulations and this Agreement and (ii) City
shall not prohibit or prevent development of the Property on grounds inconsistent with the
Development Regulations or this Agreement. Notwithstanding the foregoing, nothing herein is
intended to limit or restrict City's discretion with respect to (i) review and approval requirements
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contained in the Development Regulations, (ii) exercise of any discretionary authority City
retains under the Development Regulations, (iii) the approval, conditional approval, or denial of
any Subsequent Development Approvals that are required for Development of the Project as of
the Effective Date, or (iv) any environmental approvals that may be required under CEQA or any
other federal or state law or regulation in conjunction with any Subsequent Development
Approvals that may be required for the Project, and in this regard, as to future actions referred to
in clauses (i) -(iv) of this sentence, City reserves its full discretion to the same extent City would
have such discretion in the absence of this Agreement. In addition, it is understood and agreed
that nothing in this Agreement is intended to vest NBCC's rights with respect to any laws,
regulations, rules, or official policies of any other governmental agency or public utility
company with jurisdiction over the Property or the Project; or any applicable federal or state
laws, regulations, rules, or official policies that may be inconsistent with this Agreement and that
override or supersede the provisions set forth in this Agreement, and regardless of whether such
overriding or superseding laws, regulations, rules, or official policies are adopted or applied to
the Property or the Project prior or subsequent to the Agreement Date.
Development of the property includes approval of this Agreement, a General Plan Land
Use Element Amendment, The Newport Beach Country Club Planned Community Development
Plan, a Mitigated Negative Declaration and Site Development Plans that will allow NBCC to
reconstruct the existing 23,469 square foot golf clubhouse to a maximum of 56,000 square feet
with a maximum building height of 50 feet, subterranean golf cart parking and storage under the
golf clubhouse, a golf course maintenance building and to provide an upgraded project entry,
parking and landscaping. The project requires the approval of a Coastal Development Permit by
the California Coastal Commission.
NBCC has expended and will continue to expend substantial amounts of time and money
planning and preparing for Development of the Project. NBCC represents and City
acknowledges that NBCC would not make these expenditures without this Agreement, and that
NBCC is and will be making these expenditures in reasonable reliance upon its vested rights to
Develop the Project as set forth in this Agreement.
NBCC may apply to City for permits or approvals necessary to modify or amend the
Development specified in the Development Regulations, provided that the request does not
propose an increase in the maximum density, intensity, height, or size of proposed structures, or
a change in use that generates more peak hour traffic or more daily traffic and, in addition,
NBCC may apply to City for approval of minor amendments to existing tentative tract maps,
tentative parcel maps, or associated conditions of approval, consistent with City of Newport
Beach Municipal Code section 19.12.090. This Agreement does not constitute a promise or
commitment by City to approve any such permit or approval, or to approve the same with or
without any particular requirements or conditions, and City's discretion with respect to such
matters shall be the same as it would be in the absence of this Agreement.
4.2 No Conflicting_ Enactments.
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Except to the extent City reserves its discretion as expressly set forth in this Agreement,
during the Term of this Agreement City shall not apply to the Project or the Property any
ordinance, policy, rule, regulation, or other measure relating to Development of the Project that
is enacted or becomes effective after the Effective Date to the extent it conflicts with this
Agreement. This Section 4.2 shall not restrict City's ability to enact an ordinance, policy, rule,
regulation, or other measure applicable to the Project pursuant to California Government Code
Section 65866 consistent with the procedures specified in Section 4.3 of this Agreement. In
Pardee Construction Co. v. City of Camarillo (1984) 37 Cal.3d 465, the California Supreme
Court held that a construction company was not exempt from a city's growth control ordinance
even though the city and construction company had entered into a consent judgment (tantamount
to a contract under California law) establishing the company's vested rights to develop its
property consistent with the zoning. The California Supreme Court reached this result because
the consent judgment failed to address the timing of development. The Parties intend to avoid
the result of the Pardee case by acknowledging and providing in this Agreement that NBCC
shall have the vested right to Develop the Project on and with respect to the Property at the rate,
timing, and sequencing that NBCC deems appropriate within the exercise of NBCC's sole
subjective business judgment, provided that such Development occurs in accordance with this
Agreement and the Development Regulations, notwithstanding adoption by City's electorate of
an initiative to the contrary after the Effective Date. No City moratorium or other similar
limitation relating to the rate, timing, or sequencing of the Development of all or any part of the
Project and whether enacted by initiative or another method, affecting subdivision maps,
building permits, occupancy certificates, or other entitlement to use, shall apply to the Project to
the extent such moratorium or other similar limitation restricts NBCC's vested rights in this
Agreement or otherwise conflicts with the express provisions of this Agreement.
4.3 Reservations of Authority.
Notwithstanding any other provision set forth in this Agreement to the contrary, the laws,
rules, regulations, and official policies set forth in this Section 4.3 shall apply to and govern the
Development of the Project on and with respect to the Property.
4.3.1 Procedural Regulations. tions. Procedural regulations relating to hearing bodies,
petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals,
and any other matter of procedure shall apply to the Property, provided that such procedural
regulations are adopted and applied City-wide or to all other properties similarly situated in City.
4.3.2 Processing and Permit Fees. City shall have the right to charge and NBCC
shall be required to pay all applicable processing and permit fees to cover the reasonable cost to
City of processing and reviewing applications and plans for any required Subsequent
Development Approvals, building permits, excavation and grading permits, encroachment
permits, and the like, for performing necessary studies and reports in connection therewith,
inspecting the work constructed or installed by or on behalf of Owner, and monitoring
compliance with any requirements applicable to Development of the Project, all at the rates in
effect at the time fees are due.
4.3.3 Consistent Future City Regulations. City ordinances, resolutions,
regulations, and official policies governing Development which do not conflict with the
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Development Regulations, or with respect to such regulations that do conflict, where NBCC has
consented in writing to the regulations, shall apply to the Property.
4.3.4 Development Exactions Applicable to Property. During the Term of this
Agreement, NBCC shall be required to satisfy and pay all Development Exactions at the time
performance or payment is due to the same extent and in the same amount(s) that would apply to
NBCC and the Project in the absence of this Agreement; provided, however, that to the extent
the scope and extent of a particular Development Exaction (excluding any development impact
fee) for the Project has been established and fixed by City in the conditions of approval for any
of the Development Regulations approved on or before the Agreement Date City shall not alter,
increase, or modify said Development Exaction in a manner that is inconsistent with such
Development Regulations without NBCC's prior written consent or as may be otherwise
required pursuant to overriding federal or state laws or regulations (Section 4.3.5 hereinbelow).
In addition, nothing in this Agreement is intended or shall be deemed to vest NBCC against the
obligation to pay any of the following (which are not included within the definition of
"Development Exactions") in the full amount that would apply in the absence of this Agreement:
(i) City's normal fees for processing, environmental assessment and review, tentative tract and
parcel map review, plan checking, site review and approval, administrative review, building
permit, grading permit, inspection, and similar fees imposed to recover City's costs associated
with processing, reviewing, and inspecting project applications, plans, and specifications; (ii)
fees and charges levied by any other public agency, utility, district, or joint powers authority,
regardless of whether City collects those fees and charges; or (iii) community facility district
special taxes or special district assessments or similar assessments, business license fees, bonds
or other security required for public improvements, transient occupancy taxes, sales taxes,
property taxes, sewer lateral connection fees, water service connection fees, new water meter
fees, and the Property Development Tax payable under Section 3.12 of City's Municipal Code.
4.3.5 Overriding Federal and State Laws and Regulations. Federal and state
laws and regulations that override NBCC's vested rights set forth in this Agreement shall apply
to the Property, together with any City ordinances, resolutions, regulations, and official policies
that are necessary to enable City to comply with the provisions of any such overriding federal or
state laws and regulations, provided that (i) NBCC does not waive its right to challenge or
contest the validity of any such purportedly overriding federal, state, or City law or regulation;
and (ii) upon the discovery of any such overriding federal, state, or City law or regulation that
prevents or precludes compliance with any provision of this Agreement, City or NBCC shall
provide to the other Parry a written notice identifying the federal, state, or City law or regulation,
together with a copy of the law or regulation and a brief written statement of the conflict(s)
between that law or regulation and the provisions of this Agreement. Promptly thereafter City
and NBCC shall meet and confer in good faith in a reasonable attempt to determine whether a
modification or suspension of this Agreement, in whole or in part, is necessary to comply with
such overriding federal, state, or City law or regulation. In such negotiations, City and NBCC
agree to preserve the terms of this Agreement and the rights of NBCC as derived from this
Agreement to the maximum feasible extent while resolving the conflict. City agrees to cooperate
with NBCC at no cost to City in resolving the conflict in a manner which minimizes any
financial impact of the conflict upon NBCC. City also agrees to process in a prompt manner
NBCC's proposed changes to the Project and any of the Development Regulations as may be
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necessary to comply with such overriding federal, state, or City law or regulation; provided,
however, that the approval of such changes by City shall be subject to the discretion of City,
consistent with this Agreement.
4.3.6 Public Health and Safety. Any City ordinance, resolution, rule, regulation,
program, or official policy that is necessary to protect persons on the Property or in the
immediate vicinity from conditions dangerous to their health or safety, as reasonably determined
by City, shall apply to the Property, even though the application of the ordinance, resolution, rule
regulation, program, or official policy would result in the impairment of NBCC's vested rights
under this Agreement.
4.3.7 Uniform Building Standards. Existing and future building and building -
related standards set forth in the uniform codes adopted and amended by City from time to time,
including building, plumbing, mechanical, electrical, housing, swimming pool, and fire codes,
and any modifications and amendments thereof shall all apply to the Project and the Property to
the same extent that the same would apply in the absence of this Agreement.
4.3.8 Public Works Improvements. To the extent NBCC constructs or installs
any public improvements, works, or facilities, the City standards in effect for such public
improvements, works, or facilities at the time of City's issuance of a permit, license, or other
authorization for construction or installation of same shall apply.
4.3.9 No Guarantee or Reservation of Utility Capacity. Notwithstanding any
other provision set forth in this Agreement to the contrary, nothing in this Agreement is intended
or shall be interpreted to require City to guarantee or reserve to or for the benefit of NBCC or the
Property any utility capacity, service, or facilities that may be needed to serve the Project,
whether domestic or reclaimed water service, sanitary sewer transmission or wastewater
treatment capacity, downstream drainage capacity, or otherwise, and City shall have the right to
limit or restrict Development of the Project if and to the extent that City reasonably determines
that inadequate utility capacity exists to adequately serve the Project at the time Development is
scheduled to commence.
5. Amendment or Cancellation of Agreement
Other than modifications of this Agreement under Section 8.3 of this Agreement, this
Agreement may be amended or canceled in whole or in part only by mutual written and executed
consent of the Parties in compliance with California Government Code section 65868 and City of
Newport Beach Municipal Code section 15.45.060 or by unilateral termination by City in the
event of an uncured default of NBCC.
6. Enforcement.
Unless this Agreement is amended, canceled, modified, or suspended as authorized
herein or pursuant to California Government Code section 65869.5, this Agreement shall be
enforceable by either Party despite any change in any applicable general or specific plan, zoning,
subdivision, or building regulation or other applicable ordinance or regulation adopted by City
(including by City's electorate) that purports to apply to any or all of the Property.
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7. Annual Review ofNBCC's Compliance With Agreement.
7.1 General.
City shall review this Agreement once during every twelve (12) month period following
the Effective Date for compliance with the terms of this Agreement as provided in Government
Code Section 65865.1. NBCC (including any successor to the owner executing this Agreement
on or before the Agreement Date) shall pay City a reasonable fee in an amount City may
reasonably establish from time to time to cover the actual and necessary costs for the annual
review. City's failure to timely provide or conduct an annual review shall not constitute a
Default hereunder by City.
7.2 NBCC Obiieation to Demonstrate Good Faith Compliance.
During each annual review by City, NBCC is required to demonstrate good faith
compliance with the terms of the Agreement. NBCC agrees to furnish such evidence of good
faith compliance as City, in the reasonable exercise of its discretion, may require, thirty (30) days
prior to each anniversary of the Effective Date during the Term.
7.3 Procedure.
The City Council of City shall conduct a duly noticed hearing and shall determine, on the
basis of substantial evidence, whether or not NBCC has, for the period under review, complied
with the terms of this Agreement. If the City Council finds that NBCC has so complied, the
annual review shall be concluded. If the City Council finds, on the basis of substantial evidence,
that NBCC has not so complied, written notice shall be sent to NBCC by first class mail of the
City Council's finding of non - compliance, and NBCC shall be given at least ten (10) days to
cure any noncompliance that relates to the payment of money and thirty (30) days to cure any
other type of noncompliance. If a cure not relating to the payment of money cannot be
completed within thirty (30) days for reasons which are beyond the control of NBCC, NBCC
must commence the cure within such thirty (30) days and diligently pursue such cure to
completion. If NBCC fails to cure such noncompliance within the time(s) set forth above, such
failure shall be considered to be a Default and City shall be entitled to exercise the remedies set
forth in Article 8 below.
7.4 Annual Review a Non - Exclusive Means for Determining and Requiring Cure of
NBCC's Default.
The annual review procedures set forth in this Article 7 shall not be the exclusive means
for City to identify a Default by NBCC or limit City's rights or remedies for any such Default.
8. Events of Default.
8.1 General Provisions.
In the event of any material default, breach, or violation of the terms of this Agreement
( "Default "), the Party alleging a Default shall have the right to deliver a written notice (each, a
"Notice of Default ") to the defaulting Party. The Notice of Default shall specify the nature of the
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alleged Default and a reasonable manner and sufficient period of time (ten (10) days if the
Default relates to the failure to timely make a monetary payment due hereunder and not less than
thirty (30) days in the event of non - monetary Defaults) in which the Default must be cured (the
"Cure Period "). During the Cure Period, the Party charged shall not be considered in Default for
the purposes of termination of this Agreement or institution of legal proceedings. If the alleged
Default is cured within the Cure Period, then the Default thereafter shall be deemed not to exist.
If a non - monetary Default cannot be cured during the Cure Period with the exercise of
commercially reasonable diligence, the defaulting Party must promptly commence to cure as
quickly as possible, and in no event later than thirty (30) days after it receives the Notice of
Default, and thereafter diligently pursue said cure to completion.
8.2 Default by NBCC.
If NBCC is alleged to have committed a non - monetary Default and it disputes the
claimed Default, it may make a written request for an appeal hearing before the City Council
within ten (10) days of receiving the Notice of Default, and a public hearing shall be scheduled at
the next available City Council meeting to consider NBCC's appeal of the Notice of Default.
Failure to appeal a Notice of Default to the City Council within the ten (10) day period shall
waive any right to a hearing on the claimed Default. If NBCC's appeal of the Notice of Default
is timely and in good faith but after a public hearing of NBCC's appeal the City Council
concludes that NBCC is in Default as alleged in the Notice of Default, the accrual date for
commencement of the thirty (30) day Cure Period provided in Section 8.1 shall be extended until
the City Council's denial of NBCC's appeal is communicated to NBCC.
8.3 City's Option to Terminate Agreement.
In the event of an alleged NBCC Default, City may not terminate this Agreement without
first delivering a written Notice of Default and providing NBCC with the opportunity to cure the
Default within the Cure Period, as provided in Section 8.1, and complying with Section 8.2 if
NBCC timely appeals any Notice of Default with respect to a non - monetary Default. A
termination of this Agreement by City shall be valid only if good cause exists and is supported
by evidence presented to the City Council at or in connection with a duly noticed public hearing
to establish the existence of a Default. The validity of any termination may be judicially
challenged by NBCC. Any such judicial challenge must be brought within thirty (30) days of
service on NBCC, by first class mail, postage prepaid, of written notice of termination by City or
a written notice of City's determination of an appeal of the Notice of Default as provided in
Section 8.2.
8.4 Default by City.
If NBCC alleges a City Default and alleges that the City has not cured the Default within
the Cure Period, NBCC may pursue any equitable remedy available to it under this Agreement,
including, without limitation, an action for a writ of mandamus, injunctive relief, or specific
performance of City's obligations set forth in this Agreement. Upon a City Default, any
resulting delays in NBCC's performance hereunder shall neither be a NBCC Default nor
constitute grounds for termination or cancellation of this Agreement by City and shall, at
NBCC's option (and provided NBCC delivers written notice to City within thirty (30) days of
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the commencement of the alleged City Default), extend the Term for a period equal to the length
of the delay.
8.5 Waiver.
Failure or delay by either Party in delivering a Notice of Default shall not waive that
Party's right to deliver a future Notice of Default of the same or any other Default.
8.6 Specific Performance Remedy.
Due to the size, nature, and scope of the Project, it will not be practical or possible to
restore the Property to its pre - existing condition once implementation of this Agreement has
begun. After such implementation, both NBCC and City may be foreclosed from other choices
they may have had to plan for the development of the Property, to utilize the Property or provide
for other benefits and alternatives. NBCC and City have invested significant time and resources
and performed extensive planning and processing of the Project in agreeing to the terms of this
Agreement and will be investing even more significant time and resources in implementing the
Project in reliance upon the terms of this Agreement. It is not possible to determine the sum of
money which would adequately compensate NBCC or City for such efforts. For the above
reasons, City and NBCC agree that damages would not be an adequate remedy if either City or
NBCC fails to cart' out its obligations under this Agreement. Therefore, specific performance
of this Agreement is necessary to compensate NBCC if City fails to carry out its obligations
under this Agreement or to compensate City if NBCC falls to carry out its obligations under this
Agreement.
8.7 Monetary Damages.
The Parties agree that monetary damages shall not be an available remedy for either Party
for a Default hereunder by the other Party; provided, however, that (i) nothing in this Section 8.7
is intended or shall be interpreted to limit or restrict City's right to recover the Public Benefit
Fees due from NBCC as set forth herein; and (ii) nothing in this Section 8.7 is intended or shall
be interpreted to limit or restrict Owner's indemnity obligations set forth in Article 10 or the
right of the prevailing Party in any Action to recover its litigation expenses, as set forth in
Section 8.10.
8.8 Additional City Remedy for NBCC's Default.
In the event of any Default by NBCC, in addition to any other remedies which may be
available to City, whether legal or equitable, City shall be entitled to receive and retain any
Development Exactions applicable to the Project or the Property, including any fees, grants,
dedications, or improvements to public property which it may have received prior to NBCC's
Default without recourse from NBCC or its successors or assigns.
8.9 No Personal Liability of City Officials. Employees, or Agents.
No City official, employee, or agent shall have any personal liability hereunder for a
Default by City of any of its obligations set forth in this Agreement.
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8.10 Recovery of Legal Expenses by Prevailing Party in Any Action.
In any judicial proceeding, arbitration, or mediation (collectively, an "Action') between
the Parties that seeks to enforce the provisions of this Agreement or arises out of this Agreement,
the prevailing Party shall recover all of its actual and reasonable costs and expenses, regardless
of whether they would be recoverable under California Code of Civil Procedure section 1033.5
or California Civil Code section 1717 in the absence of this Agreement. These costs and
expenses include expert witness fees, attorneys' fees, and costs of investigation and preparation
before initiation of the Action. The right to recover these costs and expenses shall accrue upon
initiation of the Action, regardless of whether the Action is prosecuted to a final judgment or
decision.
9. Force Maieure.
Neither Party shall be deemed to be in Default where failure or delay in performance of
any of its obligations under this Agreement is caused, through no fault of the Party whose
performance is prevented or delayed, by floods, earthquakes, other acts of God, fires, wars, riots
or similar hostilities, strikes or other labor difficulties, state or federal regulations, or court
actions. Except as specified above, nonperformance shall not be excused because of the act or
omission of a third person. In no event shall the occurrence of an event of force majeure operate
to extend the Term of this Agreement. In addition, in no event shall the time for performance of
a monetary obligation, including without limitation NBCC's obligation to pay Public Benefit
Fees, be extended pursuant to this Section.
10. Indemnity Obligations of NBCC.
10.1 Indemni Arising From Acts or Omissions of NBCC.
NBCC shall indemnify, defend, and hold harmless City and City's officials, employees,
agents, attorneys, and contractors (collectively, the "City's Affiliated Parties ") from and against
all suits, claims, liabilities, losses, damages, penalties, obligations, and expenses (including but
not limited to attorneys' fees and costs) (collectively, a "Claim ") that may arise, directly or
indirectly, from the acts, omissions, or operations of NBCC or NBCC's agents, contractors,
subcontractors, agents, or employees in the course of Development of the Project or any other
activities of NBCC relating to the Property or pursuant to this Agreement. City shall have the
right to select and retain counsel to defend any Claim filed against City and/or any of City's
Affiliated Parties, and NBCC shall pay the reasonable cost for defense of any Claim. The
indemnity provisions in this Section 10.1 shall commence on the Agreement Date, regardless of
whether the Effective Date occurs, and shall survive the Termination Date.
10.2 Third Party Litigation.
In addition to its indemnity obligations set forth in Section 10. 1, NBCC shall indemnify,
defend, and hold harmless City and City's Affiliated Parties from and against any Claim against
City or City's Affiliated Parties seeking to attack, set aside, void, or annul the approval of this
Agreement, the Adopting Ordinance, any of the Development Regulations for the Project
(including without limitation any actions taken pursuant to CEQA with respect thereto), any
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Subsequent Development Approval, or the approval of any permit granted pursuant to this
Agreement. Said indemnity obligation shall include payment of attorney's fees, expert witness
fees, and court costs. City shall promptly notify NBCC of any such Claim and City shall
cooperate with NBCC in the defense of such Claim. If City fails to promptly notify NBCC of
such Claim, NBCC shall not be responsible to indemnify, defend, and hold City harmless from
such Claim until NBCC is so notified and if City fails to cooperate in the defense of a Claim
NBCC shall not be responsible to defend, indemnify, and hold harmless City during the period
that City so fails to cooperate or for any losses attributable thereto. City shall be entitled to
retain separate counsel to represent City against the Claim and the City's defense costs for its
separate counsel shall be included in NBCC's indemnity obligation, provided that such counsel
shall reasonably cooperate with NBCC in an effort to minimize the total litigation expenses
incurred by NBCC. In the event either City or NBCC recovers any attorney's fees, expert
witness fees, costs, interest, or other amounts from the party or parties asserting the Claim,
NBCC shall be entitled to retain the same (provided it has fully performed its indemnity
obligations hereunder). The indemnity provisions in this Section 10.2 shall commence on the
Agreement Date, regardless of whether the Effective Date occurs, and shall survive the
Termination Date.
10.3 Environmental Indemnity.
In addition to its indemnity obligations set forth in Section 10.1, from and after the
Agreement Date NBCC shall indemnify, defend, and hold harmless City and City's Affiliated
Parties from and against any and all Claims for personal injury or death, property damage,
economic loss, statutory penalties or fines, and damages of any kind or nature whatsoever,
including without limitation attorney's fees, expert witness fees, and costs, based upon or arising
from any of the following: (i) the actual or alleged presence of any Hazardous Substance on or
under any of the Property in violation of any applicable Environmental Law; (ii) the actual or
alleged migration of any Hazardous Substance from the Property through the soils or
groundwater to a location or locations off of the Property; and (iii) the storage, handling,
transport, or disposal of any Hazardous Substance on, to, or from the Property and any other area
disturbed, graded, or developed by NBCC in connection with NBCC's Development of the
Project. The indemnity provisions in this Section 10.3 shall commence on the Agreement Date,
regardless of whether the Effective Date occurs, and shall survive the Termination Date.
11. Assignment.
NBCC shall have the right to sell, transfer, or assign (hereinafter, collectively, a
"Transfer") NBCC's fee title to the Property, in whole or in part, to any person, partnership, joint
venture, firm, or corporation (which successor, as of the effective date of the Transfer, shall
become the "NBCC" under this Agreement) at any time from the Agreement Date until the
Termination Date; provided, however, that no such Transfer shall violate the provisions of the
Subdivision Map Act (Government Code Section 66410 et sea.) or City's local subdivision
ordinance and any such Transfer shall include the assignment and assumption of NBCC's rights,
duties, and obligations set forth in or arising under this Agreement as to the Property or the
portion thereof so Transferred and shall be made in strict compliance with the following
conditions precedent: (i) no transfer or assignment of any of NBCC's rights or interest under this
Agreement shall be made unless made together with the Transfer of all or a part of the Lease
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Property; and (ii) prior to the effective date of any proposed Transfer, NBCC (as transferor) shall
notify City, in writing, of such proposed Transfer and deliver to City a written assignment and
assumption, executed in recordable form by the transferring and successor NBCC and in a form
subject to the reasonable approval of the City Attorney of City (or designee), pursuant to which
the NBCC assigns to the successor and the successor assumes from the transferring NBCC all
of the rights and obligations of the transferring NBCC with respect to the Property or portion
thereof to be so Transferred, including in the case of a partial Transfer the obligation to perform
such obligations that must be performed off of the portion of the Property so Transferred that are
a condition precedent to the successor's right to develop the portion of the Property so
Transferred.
Notwithstanding any Transfer, the NBCC shall continue to be jointly and severally liable
to City, together with the successor to NBCC, to perform all of the transferred obligations set
forth in or arising under this Agreement unless the NBCC is given a release in writing by City.
City shall provide such a release upon the transferring NBCC's full satisfaction of all of the
following conditions: (i) the NBCC no longer has a legal or equitable interest in the portion of
the Property so Transferred other than as a beneficiary under a deed of trust; (ii) the transferring
NBCC is not then in Default under this Agreement and no condition exists that with the passage
of time or the giving of notice, or both, would constitute a Default hereunder; (iii) the
transferring NBCC has provided City with the notice and the fully executed written and
recordable assignment and assumption agreement required as set forth in the first paragraph of
this Section 11; and (iv) the successor NBCC either (A) provides City with substitute security
equivalent to any security previously provided by the transferring NBCC to City to secure
performance of the successor NBCC's obligations hereunder with respect to the Property or the
portion of the Property so Transferred or (B) if the transferred obligation in question is not a
secured obligation, the successor either provides security reasonably satisfactory to City or
otherwise demonstrates to City's reasonable satisfaction that the successor has the financial
resources or commitments available to perform the transferred obligation at the time and in the
manner required under this Agreement and the Development Regulations for the Project.
12. Mortgagee Rights.
12.1 Encumbrances on Propertv.
The Parties agree that this Agreement shall not prevent or limit NBCC in any manner
from encumbering the Property, any part of the Property, or any improvements on the Property
with any Mortgage securing financing with respect to the construction, development, use, or
operation of the Project.
12.2 Mortgagee Protection.
This Agreement shall be superior and senior to the lien of any Mortgage. Nevertheless,
no breach of this Agreement shall defeat, render invalid, diminish, or impair the lien of any
Mortgage made in good faith and for value. Any acquisition or acceptance of title or any right or
interest in the Property or part of the Property by a Mortgagee (whether due to foreclosure,
trustee's sale, deed in lieu of foreclosure, lease termination, or otherwise) shall be subject to all
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of the terms and conditions of this Agreement. Any Mortgagee who takes title to the Property or
any part of the Property shall be entitled to the benefits arising under this Agreement.
12.3 Mortgagee Not Obligated.
Notwithstanding the provisions of this Section 12.3, a Mortgagee will not have any
obligation or duty under the terms of this Agreement to perform the obligations of NBCC or
other affirmative covenants of NBCC, or to guarantee this performance except that: (i) the
Mortgagee shall have no right to develop the Project under the Development Regulations without
fully complying with the terms of this Agreement; and (ii) to the extent that any covenant to be
performed by NBCC is a condition to the performance of a covenant by City, that performance
shall continue to be a condition precedent to City's performance.
12.4 Notice of Default to Mortgagee: Right of Mortgagee to Cure.
Each Mortgagee shall, upon written request to City, be entitled to receive written notice
from City of (i) the results of the periodic review of compliance specified in Article 7 of this
Agreement, and (ii) any default by NBCC of its obligations set forth in this Agreement.
Each Mortgagee shall have a further right, but not an obligation, to cure the Default
within ten (10) days after receiving a Notice of Default with respect to a monetary Default and
within thirty (30) days after receiving a Notice of Default with respect to a non - monetary
Default. If the Mortgagee can only remedy or cur a non - monetary Default by obtaining
possession of the Property, then the Mortgagee shall have the right to seek to obtain possession
with diligence and continuity through a receiver or otherwise, and to remedy or cure the non -
monetary Default within thirty (30) days after obtaining possession and, except in case of
emergency or to protect the public health or safety, City may not exercise any of its judicial
remedies set forth in this Agreement to terminate or substantially alter the rights of the
Mortgagee until expiration of the thirty (30) -day period. In the case of a non - monetary Default
that cannot with diligence be remedied or cured within thirty (30) days, the Mortgagee shall have
additional time as is reasonably necessary to remedy or cure the Default, provided the Mortgagee
promptly commences to cure the non - monetary Default within thirty (30) days and diligently
prosecutes the cure to completion.
13. Miscellaneous Terms.
13.1 Notices.
Any notice or demand that shall be required or permitted by law or any provision of this
Agreement shall be in writing. If the notice or demand will be served upon a Party, it either shall
be personally delivered to the Party; deposited in the United States mail, certified, return receipt
requested, and postage prepaid; or delivered by a reliable courier service that provides a receipt
showing date and time of delivery with courier charges prepaid. The notice or demand shall be
addressed as follows:
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TO CITY: City of Newport Beach
3300 Newport Boulevard
Post Office Box 1768
Newport Beach, California 92663 -3884
Attn: City Manager
With a copy to: City Attorney
City of Newport Beach
3300 Newport Boulevard
Post Office Box 1768
Newport Beach, California 92663 -3884
TO NBCC: Newport Beach County Club, Inc.
1600 East Coast Highway
Newport Beach, California, 92660 Attn: Perry
Dickey, President
With a copy to: International Bay Clubs
1221 West Coast Highway
Newport Beach, California 92663
Attn: Dave Wooten, Chief Executive Officer
Either Party may change the address stated in this Section 13.1 by delivering notice to the
other Party in the manner provided in this Section 13.1, and thereafter notices to such Party shall
be addressed and submitted to the new address. Notices delivered in accordance with this
Agreement shall be deemed to be delivered upon the earlier of: (i) the date received or (iii) three
business days after deposit in the mail as provided above.
13.2 Project as Private Undertaking.
The Development of the Project is a private undertaking. Neither Party is acting as the
agent of the other in any respect, and each Party is an independent contracting entity with respect
to the terms, covenants, and conditions set forth in this Agreement. This Agreement forms no
partnership, joint venture, or other association of any kind. The only relationship between the
Parties is that of a government entity regulating the Development of private property by the
owner of the property.
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13.3 Cooperation.
Each Party shall cooperate with and provide reasonable assistance to the other Party to
the extent consistent with and necessary to implement this Agreement. Upon the request of a
Party at any time, the other Party shall promptly execute, with acknowledgement or affidavit if
reasonably required, and file or record the required instruments and writings and take any actions
as may be reasonably necessary to implement this Agreement or to evidence or consummate the
transactions contemplated by this Agreement.
13.4 Estoppel Certificates.
At any time, either Party may deliver written notice to the other Party requesting that that
Party certify in writing that, to the best of its knowledge: (i) this Agreement is in full force and
effect and is binding on the Party; (ii) this Agreement has not been amended or modified either
orally or in writing or, if this Agreement has been amended, the Party providing the certification
shall identify the amendments or modifications; and (iii) the requesting Party is not in Default in
the performance of its obligations under this Agreement and no event or situation has occurred
that with the passage of time or the giving of Notice or both would constitute a Default or, if
such is not the case, then the other Party shall describe the nature and amount of the actual or
prospective Default.
The Party requested to furnish an estoppel certificate shall execute and return the
certificate within thirty (30) days following receipt. Requests for the City to furnish an estoppel
certificate shall include reimbursement for all administrative costs incurred by the City including
reasonable attorneys fees incurred by the City in furnishing an estoppels certificate.
13.5 Rules of Construction.
The singular includes the plural; the masculine and neuter include the feminine; "shall" is
mandatory; and "may" is permissive.
13.6 Time Is of the Essence.
Time is of the essence regarding each provision of this Agreement as to which time is an
element.
13.7 Waiver.
The failure by a Party to insist upon the strict performance of any of the provisions of this
Agreement by the other Party, and failure by a Party to exercise its rights upon a Default by the
other Party, shall not constitute a waiver of that Party's right to demand strict compliance by the
other Party in the future.
13.8 Counterparts.
112/0667560090
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21
This Agreement may be executed in two or more counterparts, each of which shall be
identical and may be introduced in evidence or used for any other purpose without any other
counterpart, but all of which shall together constitute one and the same agreement.
13.9 Entire Agreement.
This Agreement constitutes the entire agreement between the Parties and supersedes all
prior agreements and understandings, both written and oral, between the Parties with respect to
the subject matter addressed in this Agreement.
13.10 Severability
The Parties intend that each and every obligation of the Parties is interdependent and
interrelated with the other, and if any provision of this Agreement or the application of the
provision to any Party or circumstances shall be held invalid or unenforceable to any extent, it is
the intention of the Parties that the remainder of this Agreement or the application of the
provision to persons or circumstances shall be rendered invalid or unenforceable. The Parties
intend that neither Party shall receive any of the benefits of the Agreement without the full
performance by such Party of all of its obligations provided for under this Agreement. Without
limiting the generality of the foregoing, the Parties intend that NBCC shall not receive any of the
benefits of this Agreement if any of NBCC's obligations are rendered void or unenforceable as
the result of any third party litigation, and City shall be free to exercise its legislative discretion
to amend or repeal the Development Regulations applicable to the Property and NBCC shall
cooperate as required, despite this Agreement, should third party litigation result in the
nonperformance of NBCC's obligations under this Agreement. The provisions of this Section
13.10 shall apply regardless of whether the Effective Date occurs and after the Termination Date.
13.11 Construction.
Both City and NBCC are sophisticated parties who were represented by independent
counsel throughout the negotiations or City and NBCC had the opportunity to be so represented
and voluntarily chose to not be so represented. City and NBCC each agree and acknowledge that
the terms of this Agreement are fair and reasonable, taking into account their respective
purposes, terns, and conditions. This Agreement shall therefore be construed as a whole
consistent with its fair meaning, and no principle or presumption of contract construction or
interpretation shall be used to construe the whole or any part of this Agreement in favor of or
against either Party.
13.12 Successors and Assigns, Constructive Notice and Acceptance.
The burdens of this Agreement shall be binding upon, and the benefits of this Agreement
shall inure to, all successors in interest to the Parties to this Agreement. All provisions of this
Agreement shall be enforceable as equitable servitudes and constitute covenants running with the
land. Each covenant to do or refrain from doing some act hereunder with regard to Development
of the Property: (i) is for the benefit of and is a burden upon every portion of the Property, (ii)
runs with the Property and each portion thereof, and (iii) is binding upon each Party and each
successor in interest during its ownership of the Property or any portion thereof. Every person or
112(066751-0090
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22
entity who now or later owns or acquires any right, title, or interest in any part of the Project or
the Property is and shall be conclusively deemed to have consented and agreed to every
provision of this Agreement. This Section 13.12 applies regardless of whether the instrument by
which such person or entity acquires the interest refers to or acknowledges this Agreement and
regardless of whether such person or entity has expressly entered into an assignment and
assumption agreement as provided for in Section 11.
13.13 No Third Party Beneficiaries.
The only Parties to this Agreement are City and NBCC. This Agreement does not
involve any third party beneficiaries, and it is not intended and shall not be construed to benefit
or be enforceable by any other person or entity.
13.14 Applicable Law and Venue.
This Agreement shall be construed and enforced consistent with the internal laws of the
State of California, without regard to conflicts of law principles. Any action at law or in equity
arising under this Agreement or brought by any Party for the purpose of enforcing, construing, or
determining the validity of any provision of this Agreement shall be filed and tried in the
Superior Court of the County of Orange, State of California, or the United States District Court
for the Central District of California. The Parties waive all provisions of law providing for the
removal or change of venue to any other court.
13.15 Section Headings.
All section headings and subheadings are inserted for convenience only and shall not
affect construction or interpretation of this Agreement.
13.16 Incorporation of Recitals and Exhibits.
All of the Recitals are incorporated into this Agreement by this reference. Exhibits A and
B are attached to this Agreement and incorporated by this reference as follows:
EXHIBIT
DESCRIPTION
DESIGNATION
A
Legal Description of Property
Overall Site Plan and Overall Site Plan
BI & B2
Alternative
13.17 Recordation.
The City Clerk of City shall record this Agreement and any amendment, modification, or
cancellation of this Agreement in the Office of the County Recorder of the County of Orange
I1 VW751 -0090
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23
within the period required by California Government Code section 65868.5 and City of Newport
Beach Municipal Code section 15.45.090. The date of recordation of this Agreement shall not
modify or amend the Effective Date or the Termination Date.
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[SIGNATURE PAGE FOLLOWS]
24
SIGNATURE PAGE TO
DEVELOPMENT AGREEMENT
ATTEST:
City Clerk
APPROVED AS TO FORM:
Aaron Harp, City Attorney W 101011,
112,0667514)090
2347819.1 a[I110 /II
Intl Hay Clubs 10.20. 11 v3 CLEAN
"NBCC"
"CITY"
25
CITY OF NEWPORT BEACH
0
Its: Mayor
STATE OF CALIFORNIA
COUNTY OF ORANGE
On , before me, the undersigned, a Notary Public in and for said State,
personally appeared and , personally known
to me to be the persons whose names are subscribed to the within instrument and acknowledged
to me that they executed the same in their authorized capacities and that by their signature on the
instrument the persons, or the entity upon behalf of which the persons acted, executed the
instrument.
Witness my hand and official seal.
Notary Public in and for
said County and State
STATE OF CALIFORNIA
COUNTY OF ORANGE
On , before me, the undersigned, a Notary Public in and for said State,
personally appeared and , personally known
to me to be the persons whose names are subscribed to the within instrument and acknowledged
to me that they executed the same in their authorized capacities and that by their signature on the
instrument the persons, or the entity upon behalf of which the persons acted, executed the
instrument.
Witness my hand and official seal.
Notary Public in and for
said County and State
1121066751 -11090
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-26-
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
[TO BE INSERTED]
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EXHIBIT BI and EXHIBIT B2
OVERALL SITE PLAN AND OVERALL SITE PLAN ALTERNATIVE
[TO BE INSERTED]
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A
MICHAEL RECUPERO, ESQ.
November 16, 2011
Commissioners, Newport Beach Planning Commission
C/O Ms. Kimberly Brandt and Ms. Marlene Burns
CITY OF NEWPORT BEACH
3300 Newport Boulevard
Newport Beach, CA 92663
Correspondence
Item No. 2c & 3b
Newport Beach Country Club
PA2005 -140 and PA2008 -152
BY ELECTRONIC MAIL AND U.S. POST (CERTIFIED MAIL)
Re: November 17, 2011 Planning Commission Agenda Items 2 (PA 2005 -140) and 3
(PA2008 -152)
Dear Commissioners:
This letter is written on behalf of one -half of the ownership of the Newport Beach
Country Club and Tennis Club (the "Properties ")' which you are considering tomorrow
night.
Comments on Agenda Item 2 (PA2005 -140): Newport Beach Country Club, Inc.
We would reiterate our support for the Newport Beach Country Club, Inc. plan as a
reasonable exercise of our tenant's authority to improve the leasehold interest, with the
inclusion of the revised frontage road (Attachment 1) as reflected in the most recent staff
report.
The Frontage Road. The frontage road is preferable from a planning standpoint, and:
1. Is the preference of the Applicant and the above referenced ownership interests;
2. Has been modified to be one -way, narrowed and provides for more desirable
turning movements than originally proposed;
3. Provides a greater landscaping setback from PCH to the parking lot
(approximately 20' difference) as compared to the "no frontage road" option;
4. Serves the operational needs of the IBC leasehold as well as the longstanding
needs of the adjacent Armstrong Nursery;
5. Is consistent with mandates of the City's traffic engineering constraints.
' The Fainbarg Family Trust (managed by Irving Chase), the Mira Mesa Shoppping Center -West, and the
Mesa Shopping Center -East (managed by Elliot Feuerstein), collectively own 50% of the Properties.
31877 Del Obispo St. • Suite 204 • San Juan Capistrano, CA 92675 -3228
Ph: 949429.6300 • Fax: 949.429.6303
City of Newport Beach rylr.
November 16, 2011 ..\l!T�
Additionally, Attachment 2, the July 13, 2010 letter from the Tenant to the City, describes
why maintaining the frontage road is the most prudent and legally defensible option.
This should be considered in conjunction with Attachment 3 which sets out the relevant
recorded documents, including the Termination of Access Easement document
(Recordation No. 19970630399). The Termination only purports to conditionally terminate
certain historic easements, and not others. Simply stated, the public record suggests that
enforceable easement rights to the 26.5 -foot easement (See, document Nos. 92- 662454
and 93- 0139174) continue to exist, in favor of Feuerstein and Fainbarg.
No Encumbrance on Fee Interest. Finally, we understand that the Applicant is required
through the IBC Development Agreement to provide security for the leasehold
improvements. We understand the Tenant has the right to encumber its leasehold
interest, however, we do not consent to any new encumbrance or obligation, recorded or
otherwise, which affects the underlying fee.
Comments on Agenda Item 3 (PA2008-152): Golf Realty Fund
We incorporate by reference the earlier letters on file relative to our position on this
Planning Application and reiterate our position that Golf Realty Fund lacks the right to
unilaterally entitle this property.z
Development Agreement. Inasmuch as the City has been provided with the title report,
and the Owner's Agreement, we believe the City's decision to withhold the GRF
Development Agreement from our review until yesterday is inequitable and unjustified.
The Development Agreement suggests that it is binding on the "Property" as defined in
section 2.2. and is required to be recorded. Our review of the law suggests that it be
amended to require the consent of the Property owners, not just Golf Realty Fund. It
should also set out the City's expectation that future discretionary permits and
ministerial (building and grading permits) will require all owners' consent.
Planned Community Text. The current Planned Community Text draft does not
adequately provide the owner flexibility to adjust the mixed -use element of the zoning
allowed by General Plan Land Use designation MU -113. As 50% of the ownership of this
property has not approved the current development plan, we believe that providing
such flexibility, and including a specific provision which allows for staff -level
amendment, may ultimately allow the parties and the City to meaningfully address a
revised plan on a go forward basis.
2 We continue to believe that the City's reliance on the former Newport Beach Municipal Code
Section 20.90.030(C) in denying our Client's the right to participate on this project is misplaced
when the City is clearly relying on the amended Municipal Code for all other matters related to
this project.
PAGE MICHAELRECUPERO,EsQ.
City of Newport Beach
November 16, 2011
Thank you for your consideration.
Sincerely,
W2 )�
Michael Recupero, Esq.
Ecc:
Commissioner Ameri
Commissioner Kramer
Commissioner Toerge
Commissioner Hawkins
Commissioner Myers
Elliot Feuerstein
Irving Chase
John Olson, Esq.
Tim Paone, Esq.
Leone Mulvihill, Esq.
Mam
PAGE MICHAEL RECUPERO, ESQ.
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CAA PLANNING
July 13, 2010
City of Newport Beach
Attn: Rosalinh Ung
Planning Department
3300 Newport Boulevard
Newport Beach, CA 92663
Subject: PA 2008 -152 Newport Beach Country Club, Frontage Road Access Easement
Dear Ms. Ung:
You recently forwarded to CAA Planning a copy of a First American Title Report (First
American Report) dated June 2010 and asked for our review related to the access easement.
The First American Report does not identify the existence of an access easement over the
frontage road paralleling East Coast Highway. However, the 2008 Fidelity National Title
Report (Fidelity Report) submitted by the Newport Beach Country Club (NBCC) does
identify this easement. As you know, that easement has been, and continues to be used by
motorists who patronize the Armstrong Nursery.
Based on our review of the First American Report, we concur that it does not disclose the 26.5
foot access easement (Instrument No. 93- 0139174) identified in the Fidelity Report in favor of
Russell Fluter, included as Attachment I. The Fidelity Report correctly captured the 1993
Easement Deed granted to Russell Fluter by the Irvine Company, included as Attachment 2.
As we have previously discussed, a 25 foot access easement over the frontage road held by
Messrs Feuerstein and Fainbarg was terminated in 1996. The termination of the 25 foot
easement is included as Attachment 3.
Records maintained by the County of Orange Recorder's office show a 2009 quitclaim deed
and release of easement (Instrument No. 93- 0139174) from Mr. Fluter to Messrs Feuerstein
and Fainbarg. The quitclaim deed and release of easement is included as Attachment 4. The
County Recorder's office does not show any subsequent action by Mr. Feuerstein or Mr.
Fainbarg to terminate the 26.5 foot easement. We can assure the City of Newport Beach that
our client, the NBCC, would have gladly foregone the excessive time and resources to
produce site plan alternatives retaining the nursery access easement over the frontage road.
You have asked why the 26.5 foot access easement does not show on parcel map 79 -704. It is
our understanding that parcel maps are not revised or updated to display such easements. This
is why the 1980 parcel map does not depict the 26.5 foot easement from 1993. We contacted
First American Title Company in an effort to determine why their report does not capture the
85 Argonaut, Suite 220 • Aliso Viejo, California 92656 • (949) 581 -2888 • Fax (949) 581 -3599
i
Ms. Rosalinh Ung "`
July 13, 2010
Page 2 of 2
26.5 foot access easement over the frontage road, but they have not responded to our inquiry.
In an abundance of caution, the City may wish to inquire of Mr. O'Hill whether he has
documentation verifying the termination of the 26.5 foot easement following the 2009 release
from Mr. Fluter to Messrs Feuerstein and Fainbarg.
Please contact us at your earliest convenience if you have any questions. Thank you.
Sincerely,
CAA PLANNING, INC.
Shahaffne
Chief Executive Officer
cc: Mr. Dave Wooten
Mr. Patrick Alford
Attachments: 1. Excerpt from 2008 Fidelity National Title Report showing 26.5 foot access
easement in favor of Russell Fluter
2. 1993 26.5 foot Access Easement Deed
3. 1996 25 foot Access Easement Termination
4. 2009 Quitclaim of Fluter 26.5 foot Access Easement to
Feuerstein & Fainbarg
Branch :C18,User :3004
`D8 OWoucstecl By
.'.r..:;ity National Tide
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL
DOCUMENT:
Arnold D. Feuerstein, Trustee
Allan Fainbarg, Trustee
129 W. Wilson St., Ste, 100
Costa Mesa, CA. 92627
Attention: Irving M. Chase, Esq,
L4
MAIL TAX STATEMENTS TO:
Station ID :EEI'K
Recorded In Offlcial Records, Orange County
Tom Rely, Clerk - Recorder
lPlllllllllllllllllllllllll @IIIIIIIIIIIIIIPIlilllglllllll 32.00
2009000658760 02:18pm 12/08/09
108 402 Q01 3
0.00 0.00 0.00 28.00 8.00 0.00 0.00 0.00
Documentary Transfer Tax: $0
The value and consideration is less than
$100.00 and there is no additional
consideration received by the Grantor, R & T
11911
QUITCLAIM DEED AND RELEASE OF EASEMENT
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, RUSSELL
FLUTER, an individual ("Grantor "), remises, releases and quitclaims to ARNOLD D.
FEUERSTEIN, TRUSTEE OF THE FEUERSTEIN COMMUNITY PROPERTY TRUST dated
April 13, 1982, an undivided one -half interest, and ALLAN FAINBARG, TRUSTEE OF THE
FAINBARG FAMILY dated April 19, 1982, an undivided one -half interest, (collectively,
"Grantee "), all of the Grantor's right, title, and interest in and to that certain non - exclusive
easement granted pursuant to that certain instrument entitled Easement Deed (Amling's) ( "Deed ")
recorded in the Official Records of Orange County, California on March 1, 1993 as Instrument
Number 93- 0139174, or by any other instrument, as such easement is legally described on Exhibit
A ("the Property"), attached hereto and incorporated herein by this reference.
Without limiting the generality of the foregoing, the Grantor hereby releases all rights and
obligations associated with the easement pursuant to the Agreement. From and after the date this
Quitclaim Deed and Release of Easement is recorded, title to the Easement shall vest in the
Grantee.
Grantor has caused this Quitclaim Deed to duly executed on October 2009.
FIDELITY NATIONAL TITLE INSURANCE
COMPANY HAS RECORDED THIS INS7Rl1MENT
BY REOUEST.dS,.N ACC� UNLY
AND HAS NO j EXAWNE7 I f FOR REGULARITY
AND SUFFI' IENCY OR A3 ITS EFFECT UPON
THE TITLE TO ANY aEAL PROPERTY THAT
MAY BE DESCRIBED THEREIN,
ORANGE, CA Document:QE. 2009.658760
Printed on:71612010 4:29 I'M
1'_u5x,l 1 �l ���,✓
Pagc:I of
Branch :CLR,Oser:3004
EXHIBIT A
Legal Description of Easement
Station ID :EEUK
AN EASEMENT FOR INGRESS AND EGRESS PURPOSES OVER THE SOUTHWESTERLY 26.50 FEET
OF PARCEL PARCEL MAP NO. 79 -704, IN THE CITY OF NEWPORT BEACH, COUNTY OF
ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP RECORDED IN BOOK 152, PAGES 17
THROUGH 20, INCLUSIVE OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF
SAID ORANGE COUNTY
ORANGE, CA 1Docament:Q E 2009.658760
Printed on:7/6/2010 4:29 PNI
11age:2 of 3
Branch :08,13ser :3004
A.P.N.:
STATE OF N I h t IAtcA, )SS
Station ID :TAJ ;K
File No.: dniehaus (dn)
COUNTY OF OfO ) Ctl I [ ,
On Q 0 j before me, vuS� Wcj f Notary
Public, personally appeared e- e/(-
who proved to me on the basis of satisfactory evidence to
be/ person whose name(} is /arasubscnbed to the within instrument and acknowledged to me that
he /she/they executed the same in his /hei theh authorized capacity(lies}, and that by hisjher/their signature/s) on
the instrument the personX, or the entity upon behalf of which the person acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is
true and correct.
iVrTNESS my hand and official seal. SUy1N L pgKTEp3
C°rtvr 0 1673021 a
® M°10ry 8h&II° • C°AIaN° f
Sign re oforge county
My Comm 3xWrm,Nd 90, 201
all
My Commission Expires: This area for of dal - notarial
-�seal
Noia (Z�tr Name,` I Phone:
Notary R i'stration �
County of Principal Place of
Number: c d Business: f:[I
Page 3 of 3
ORANGE, CA Docun ent:QE 2009.658760
Printed on:7 /6 /2010 4:29 PM
Page:3 of 3
Armstrong (Amling) Access Easement
10/24/2011
parties
Date
Instrument
Description
Width
Date signed
recorded
Grantor
Grantee
92- 662452
Irvine Company
Amling Nursery
Declaration of access easement
25 feet
9/29/1992
10/1/1992
Owners
(Amling's Nursery)
92- 662454
Irvine Company
Russell Fluter -A
Grant Deed subject to the
10/1/1992
single man
Declaration of access easement
dated 9 -29 -1992, recorded
concurrently
93- 0139174
Irvine Company
Russell Fluter -A
Easement Deed (Amling's)
26.5 feet
2/12/1993
3/1/1993
single man
93- 0139175
Irvine Company
Russell Fluter-
First Amendment to access
Increased to 26.5 feet
10/15/1992
3/1/1993
Amling Nursery
Easement 92- 662452
Owner
93- 0158180
Irvine Company
Fainbarg
Grant Deed
No width specified
3/3/1993
3/9/1993
19970630399
Feuerstein &
Termination of Access Easement 92-
Document references easement (25
12/13/1996
12/8/1997
Fainbarg
662452 & 93- 0139175
ft.) and amendment (to 26.5
ft.);therefore termination is 26.5 ft.
19960167327
Russell Fluter
Fainbarg
Grant Deed
Grants non - exclusive easements as set
4/2/1996
4/4/1996
forth in 92- 662452
19960167328
Russell Fluter
Feuerstein
Grant Deed
Grants non - exclusive easements as set
4/2/1996
4/4/1996
forth in 92- 662452
2 8760
Russell Fluter
Feuerstein &
Quitclaim Deed and Release of
Release 93- 0139174 to Feuerstein and
10/23/2009
12/8/2009
Fainbarg
Easement
Fainbarg
Correspondence
Item No. 2d & 3c
Burns, Marlene Newport Beach Country Club
PA2005 -140 and PA2008 -152
From:
Ung, Rosalinh
Sent:
Wednesday, November 16, 2011 3:06 PM
To:
Burns, Marlene
Subject:
GRF - Compromise Plan #11
Attachments:
11.11.16 LS response to IBC- LeeSak comments.doc; ATT28003202.htm; 11.11.15
Compl1.pdf; ATT28003203.htm
For admin record...
From: Leland Stearns rmailto: LELAND Ca1STEARNSARCHITECTURE.COM1
Sent: Wednesday, November 16, 2011 1:04 PM
To: Douglas Lee
Cc: Ung, Rosalinh; Brandt, Kim; Tim Paone; Byron de Arakal; Robert O Hill; Campbell, James; Michael Toerge; Bradley
Hillgren; Robert C. Hawkins; Fred Ameri; Kory Kramer; Dave Wooten; iiohnson(a)balboabavclub.com;
pdickey newportbeachcc.com
Subject: GRF /IBC Compromise Plan #11
Per Robert O Hill's request I am sending you Compromise Master Plan #11 and a written response to your
memo of Nov. 2, 2011.
SA
SA job #9602
November 16, 2011
BY EMAIL:
Doug Lee, AIA
Lee & Sakahara Architects
16842 Von Kannan Ave., Suite 300
Irvine, CA 92606
Re: NBCC PCD Compromise 11
Attached is Master Plan Compromise 11 responsive to your comment letter dated November 2, 2011.
In my professional opinion, 1) Master Plan Compromise 1 I shows that the IBC Golf Clubhouse and the
GRF Golf Parking Lot Design can easily work together with IBC's cooperation and 2) GRF's Golf
Parking Lot design shown on Master Plan Compromise 11 is a much better aesthetic and pedestrian
solution than IBC's golf parking lot.
Below is a detailed response to your letter with their comments shown first in black followed by my
responses in blue italics.
➢ Plan indicates 334 parking spaces but actual count is 327 plus 5 spaces in the Maintenance Yard
total count = 332 spaces
Please see the attached Master Plan Compromise 11 where an additional 7 parking spaces have been
added and 5 spaces in maintenance yard eliminated for a total of 334. (Parking Required is 244
spaces) If the GRF Golf Parking Lot design is adopted GRF has agreed to make available to IBC the
non - exclusive parking easement over Corporate Plaza West for weekends and holidays for an
additional 554 additional parking spaces.
➢ Plan does not address existing access easement. If easement is maintained, this will further reduce
parking spaces.
The Frontage Road Easement has been terminated. The City of Newport Beach Planning Commission
at their October 2011 hearing indicated that they unanimously desire a golf parking lot site plan
without the hazardous and unsightly Frontage Road. If Frontage Road remains the primary loss will
be to the significant landscape buffer along PCH and traff c safety. Until that Public hearing IBC has
always indicated that IBC preferred a site plan without the Frontage Road.
s t e a r n s
ARCHITECTURE
500 Broadway / Laguna Beach, CA 92651 / 949 376 7160 fax 376 1560 / www.stearnsarchitecture.com
,SA
➢ Plan does not allow semi - trucks to maneuver in the parking lot. No staging areas for major events.
Please see the LSA Study and Stearns Architecture prior Major Tournament Staging Plan
demonstrating that trucks can maneuver in the parking lot and staging areas for major events can be
accommodated.
➢ Plan reduces the upper level prime parking by 32 spaces.
The IBC plan has approximately 80 cars in the upper level parking area. The GRF Compromise 11
has 57 cars in the upper level parking area. The GRF plan makes all the parking better and does not
have the significant grade difference between prime golf parking and secondary parking shown in the
IBC plan requiring stairways with an extensive number ofsteps from the very large secondary parking
area. Master Plan Compromise 11 has 2 additional parking stalls adjacent to the Go f Clubhouse.
➢ Plan provides only one sidewalk in the parking lot. Travel distance to the sidewalk at the east
parking lot is approximately 290' and approximately 230' at the west parking lot. This layout will
encourage members to "cut through" the landscaped islands and between cars (shortest path to the
front door.
Two more pedestrian sidewalks have been added in attached Compromise IL The Master Plan
Compromise I1 is more pedestrian and golf cart friendly. (Seethe LSA Study)
)o The primary access to parking from the Porte Cochere is offset requiring two turns to access
parking lot.
With both the GRF and the IBC plans there are two turns. With Master Plan Compromise]] there are
two turns when leaving the Porte Cochere and going to the parking area. With the IBC's schematic
plan there are two turns when leaving the parking area and returning to the Porte Cochere.
➢ Plan encroaches 10' -20' into the golf course at the 18th green area.
Please see the revised Master Plan Compromise 11 which eliminates encroachment.
➢ Plan encroaches into Maintenance Yard.
Please see Master Plan Compromise 11, which eliminates this very minor encroachment.
➢ 5 spaces in the Maintenance yard should be deleted. This space is allocated for golf course
maintenance bins.
See attached Master Plan Compromise 11 where the 5 spaces in the Maintenance Yard have been
deleted.
s t e a r n s
ARCHITECTURE
500 Broadway / Laguna Beach, CA 92651 / 949 376 7160 fax 376 1560 / www.stearnsarchitecture.com
SA
➢ Due to the terraced parking concept, taller plant material will be required to effectively conceal the
automobiles. See attached section.
With the terraced design the goal is not to conceal the cars but to mitigate the "Sea of Asphalt" and to
create afar more aesthetic environment and public view from PCK Much of the time the parking lot is
mostly empty.
➢ Plan indicates reduced service yard.
Please see the attached Master Plan Compromise 11 with no reduction to Maintenance Yard area.
➢ Plan indicates an 85' driveway along Coast Highway between NBCC and the Nursery. City may
have some issues.
Please see Master Plan Compromise 11, which eliminates the 85' driveway and is now identical to
IBC's Preliminary Site Plan.
➢ Orientation of the Clubhouse has changed.
The Golf Clubhouse in Compromise I is now in the identical location as IBC's Preliminary Site Plan.
On a related point since I have not heard back from you regarding development of the cohesive,
comprehensive Landscape Plan, Master Plan Lighting and Sign Plan which I assume we are in
agreement on doing.
Sincerely yours,
Leland Stearns
cc: Michael Toerge, City of Newport Beach, Planning Commissioner
Bradley Hillgren, City of Newport Beach, Planning Commissioner
Robert Hawkins, City of Newport Beach, Planning Commissioner
Fred Ameri, City of Newport Beach, Planning Commissioner
Kory Kramer, City of Newport Beach, Planning Commissioner
Kim Brandt, City of Newport Beach, Community Development Director
Jim Campbell, City of Newport Beach, Principal Planner
Rosalinh Ung, City of Newport Beach, Associate Planner
Dave Wooten, IBC, President & CEO
Jerry Johnson, IBC, EVP & CFO
Perry Dickey, Newport Beach Country Club, President
Tim Paone
Byron de Arakal
ROH
s t e a r n s
ARCHITECTURE
500 Broadway / Laguna Beach, CA 92651 / 949 376 7160 fax 376 1560 / www.stearnsarchitecture.com
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949 376 7160 FAX 949 3761560
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Owner
Golf Realty Fund
One Upper Newport Plaza,
Newport Beach, CA 92660
NBCC
Planned
Community
Newport Beach, CA 92660
Master Plan
Compromise 11
Showing
IBC Proposed
Golf Clubhouse
& GRF Parking
scale 1 "= 40' -0"
Description
Nov. 15, 2011
Project Number
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775
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Owner
Golf Realty Fund
One Upper Newport Plaza,
Newport Beach, CA 92660
NBCC
Planned
Community
Newport Beach, CA 92660
Master Plan
Compromise 11
Showing
IBC Proposed
Golf Clubhouse
& GRF Parking
scale 1 "= 40' -0"
Description
Nov. 15, 2011
Project Number
ski
Newport Beach Country Club
Planned Community
<<
;g7��
Planning Commission
November 17, 2011
Golf Realty Fund (PA2005 -140)
Newport Beach Country Club, Inc. (PA2008 -152)
Current
General Plan S
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Golf Club Site, 133 acres
PR(Parks and Recreation)
Recreational (golf course)
Anomaly #74
• 35,000 s.f. clubhouse
F
46
MU -H
CO -G
45
Tennis Club Site, 12 ac.
MU -H3 /PR (Mixed -Use &
Parks and Recreation)
Commercial, residential,
recreational (tennis club)
i Anomaly #46
• 3,725 s.f. clubhouse
• 24 tennis courts
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2
Golf Realty Fund
Legislative Action �� 3
Planned Community
;c Encompasses 145 acres
Development Plan Adoption 133 ac. golf club site
12 ac. tennis club site
w
Golf course
35,000 s.f. golf clubhouse
F0'�y�P 7 tennis courts
31725 s.f. tennis clubhouse
t9� 5 single family homes
27 hotel rooms, including
ancillary meeting & spa
n
3
Golf Realty Fund
Development Applications
133 acre golf club site
Site Development Review
Limited Term Permit
for
Golf course
35,000 golf clubhouse
Ancillary maintenance
Parking lot
Entry drive
Temporary use of trailers
TN
12 acre tennis club site
Tentative Tract Map
Transfer of Intensity
Limited Term Permit
Site Development Permit
for
7 tennis courts
3,725 s.f. tennis clubhouse
5 single family homes
27 hotel rooms, including
ancillary meeting & spa
Temporary use of trailers
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Newport Beach I
Country Club, Inc.
Mo
Legislative Actions 1°
General Plan Amendment
Planned Community
Development Plan
r
133 acre golf club site
Anomaly #74
9 56,000 s.f.
PCDP Section 3.B.1
Golf Clubhouse Building Area
3999 56,000 s.f.
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Newport Beach
Country Club, Inc.
Development Applications
Site Development Review y ti
Limited Term Permit
133 ac. golf club site
a°;rQ►.+ 54,819 s.f. clubhouse
041, 017 ,_ Ancillary maintenance
Parking lot
Entry drive
Temporary use of trailers
F1.���s'QNF U S
6
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Golf Realty Fund (PA2005=140)
Mitigated Negative Declaration
No Significant Impacts
Land use
Traffic
-Aesthetic
Recreational
The architectural style is a matter of preference and is not
a determinative factor in accessing land use impacts
O B
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3
Planned Community Development Plan
Encompasses the entire 145 -acre project site
133 acre golf course site
Golf course
35,000 sf. golf clubhouse
Ancillary maintenance facilities
12 acre tennis club site
Tennis club with 7 tennis courts
3,725 sf. tennis clubhouse
27 hotel rooms including the ancillary spa and meeting
rooms
5 single - family homes
O B
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2
Transfer of Development
Applicant proposes a transfer of 27 hotel rooms from
Anomaly #43 to Anomaly #46 pursuant to General
Plan Policy
Host Hotels and Resorts (Marriott Hotel)
Vested right to develop 611 hotel rooms
Suggests a "use conversion solution" as an alternative where the
elimination of 17 tennis courts can be converted to hotel rooms or
building floor area
Staff believes
Host does not have a vested right to develop 611 hotel rooms -
May 11, 2005, administrative amendment to Site Plan Review #29
reduced the maximum room count from 611 to 532
Potential conversion does not create a traffic issue
Potential conversion not consistent with the General Plan as the
site is limited to 3,725 sf.
General Plan allows for the transfer of development
O B
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10
Comparison Site Plan
Comparison plan prepared by the applicant
Not an amendment of the application and
applicant is not requesting its approval
Illustrates possibility that the applicant's parking
lot layout could accommodate the larger
clubhouse proposed by NBCC, Inc.
Vo
11
Development Agreement
A 10 -year term
Conveys a vested right to develop
Public Benefits
Public Benefit fee: $93,000 per dwelling unit and
$10 per square foot of golf and tennis clubhouse
Project provides for visitor serving uses
Project provides aesthetic enhancements
Project will host numerous events of significant
social & economic benefit to the community
O B
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12
Recommendation
Adoption of MND and Mitigation Monitoring and
Reporting Program
Adoption of a Planned Community Development
Plan proposed by staff for the entire 145 -acre
project site
Approval of the requested Transfer of
Development
Approval of Site Development and Limited Term
Permits, as proposed by applicant for the 12 -acre
tennis club site
Approval of the Vesting Tentative Tract Map, as
proposed by applicant
Adoption of the draft Development Agreement
UON
13
r i ", _I
Newport Beach Country Club, Inc.
(PA2008 -152)
Mitigated Negative Declaration
No Significant Impacts
Land use
Traffic
Aesthetic
The architectural style is a matter of preference and is not
a determinative factor in accessing land use impacts
O B
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�
15
Legislative Actions
General Plan Amendment
35,000 sf. to 56,000 sf. for Anomaly #74
Planned Community Development Plan
Amendment
Golf clubhouse from
Applies to the ' W�
35,000 sf. to 56,000 sf.
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Alternative Site Plan
Modified Frontage Access
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930 TOM PAii/C . 9FWG£9
Alternative Frontage Access Driveway
Alternative Site Plan
Modified Frontage Access
Applicant's preferred plan, but does not eliminate the
frontage road as desired by the Commission
Provides enhanced screening of parking lot and hides
the fence as requested by the Commission
Provides " "exit only" access to Armstrong Nursery at
signal and avoids potential internal circulation
Provides
additional
flexibility for special
events
Proposed
driveway
must be widened to
20 feet
O B
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19
Frontage Road Design Condition
5. The preferred parking lot design eliminates the
frontage road that provides access from the entry
driveway to the Armstrong Nursery property to
the west of the project site as shown in Exhibit
A2C dated September 19, 2011. In the event
that the applicant must provide frontage road
due to private easement obligations, the parking
lot shall be designed in conformance with
Attachment PC4 of the November 17, 2011,
Planning Commission Staff Report, including
vehicle access be limited to one -way east -bound
movements.
0-1141
20
Parking Lot Design Condition
7. A minimum of 334 parking spaces shall be
provided and maintained for the Golf Course and
its clubhouse. The design of the parking lot may
be modified provided it meets applicable safety
and design regulations or standards as
determined by the City Traffic Engineer. The final
parking lot layout including the orientation of the
drive aisles and parking spaces shall be subject
to the review and approval by the Community
Development Director, with appropriate
notification to the Planning Commission and City
Council.
21
1
Development Agreement
A 10 -year term
Conveys a vested right to develop
Public Benefits
Public Benefit fee: $10 per square foot of golf
clubhouse (maximum of $560,000)
Project provides for visitor serving uses
Project provides aesthetic enhancements
Project will host numerous events of significant
social & economic benefit to the community
EwPoFr
O B
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22
Recommendation
Adoption of MND and Mitigation Monitoring and
Reporting Program;
Approval of General Plan Amendment to increase
the maximum building area for the clubhouse
Adoption of a Planned Community Development
Plan amendment to increase the clubhouse
building area
Approval of the Site Development and Limited
Term Permit, as proposed by applicant for the
133 -acre golf club site
Adoption of the draft Development Agreement
o
23
r i ", _I
NEWPORT BEACH
COUNTRY CLUB, INC.
CHANGES IN RESPONSE TO PLANNING
COMMISSION INPUT FROM AUGUST
Entry Drive Widened
Porte Cochere Reoriented and Shifted Southerly
Perimeter Fencing Redesigned and Reduced in
Height
Signage Reduced to Enhance Corner Open Space
Pad Elevation Lowered, Grading Quantities
Reduced
Parking Lot Landscape Setback Increased
IRVINE TERRACE ENTRY DRIVE
�a
R
ING
m
(D rh.;
_01 TYR
kCES)
REMOVE
Y
1
a
EXISTING
SIDEWALK
VG EXISTNG CURB EXISTNG CURB
IEW RETURN TO REMAII - CON IST�CT NEW RETURN TO REMAIN
THIS SIDE - -- -CURB REiHRN THIS61DE --
THIS SIDE
PREVIOUSLY REVISED PLAN WITHOUT
PROPOSED PLAN ACCESS EASEMENT
W EXISTING
SIDEWALK
REVISED PLAN WITH
ACCESS EASEMENT
VV
EXISTING
SIDEWALK
VG EXISTNG CURB EXISTNG CURB
IEW RETURN TO REMAII - CON IST�CT NEW RETURN TO REMAIN
THIS SIDE - -- -CURB REiHRN THIS61DE --
THIS SIDE
PREVIOUSLY REVISED PLAN WITHOUT
PROPOSED PLAN ACCESS EASEMENT
W EXISTING
SIDEWALK
REVISED PLAN WITH
ACCESS EASEMENT
PORTE COCHERE
`OPEN LANDSCAPED AREA
PREVIOUSLY
PROPOSED PLAN
`OPEN LANDSCAPED AREA
REVISED PLAN
FRONTAGE ROAD EASEMENT
—. easie'sen
+ r N49AU'ka�
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isi sa +eesl Ti -w:te aeevs® 945
.. - _ _ _ _ _- —— Zzns.ccssse.seuexrl wrc. xoAruuvc�` --
mnee� xusnvc �msrms _...... _
seax¢0°sioimswv $1OF1Y"`" '""" COAST HIGHWAY
PREVIOUSLY PROPOSED PLAN
REVISED PLAN WITHOUT ACCESS EASEMENT
REVISED PLAN WITH ACCESS EASEMENT !`q
SIGNAGE /CORNER OPEN SPACE
Entry Monument Sign
Reduced from 10' maximum height to 7' maximum
Sign area reduced from 180 square feet to 155 square feet
Reduced sign size will maximize open space at corner of
East Coast Highway and Irvine Terrace
PAD ELEVATION/ GRADING
QUANTITIES
Lowered finished floor by 1 foot
Reduction in grading by 5,000 cubic yards
Reduction in heavy trip traffic associated with
import of fill material from approximately 27 days to
21 days
BUILDING HEIGHT
S
m•�.ac;
SITE SECTION A -A
SITE SECTION B-B
SITE SECTION C-C
onorceeoa�wsc
vrenrra numw.ae
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R-1 .l
.`r
SITE PLAN
c
o
=W
A k .b
CHANGES IN RESPONSE TO PLANNING
COMMISSION INPUT FROM OCTOBER
Narrowed Frontage Road to 15'
Restricted Access to One -Way Eastbound Only
Signage and Turn -Outs to Prevent Wrong Way
Traffic
Increased Total Landscape Setback to 28' from
back of Sidewalk
Separated Berm and Perimeter Fence by 25'
Placement of Berm Away from Fence Obscures
View of Fence from East Coast Highway
UPDATED SITE PLAN WITH
ONE -WAY FRONTAGE ROAD
NOTE — — —_
P REFERTOOMLgUWINGFORWOU
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GENERALNOTES
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NEWPORT BEACH COUNTRY CLUB ► TM BERN .,
NEWPORTBEACH, CAUrONNin
UPDATED LANDSCAPED BERM/
PERIMETER FENCE SECTION
F
COAST l 7' l 18' 15' 4
HWY SIDEWALK LANDSCAPE BERM ONE WAY DR.
5 NFWTZTX mil
SECTION 1/817 = 1'- 0"
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IMAGE BOARD
PREVIOUS DESIGN
�--IC
REVISED DESIGN
NEWPORT BEACH COUNTRY CLUB
NEWPORT BEACH, CALIFORN,P
AM
BANQUET ROOM
Need for 250 -Seat Banquet Room Based on Current
Demand
Tournaments - 144 players (maximum) plus spouses /guests -
approximately 250 seats
Special Events and Club Functions
Holidays (e.g., Easter, Mother's Day, Thanksgiving,)
Increase from existing banquet room by
approximately 1,500 square feet
MONDAY TOURNAMENT BOOKING
SUMMARY 2011
DATE EVENT
1/24/11
Toshiba Sponsor Day
3/7/11
Toshiba Classic
3/21/11
Cystic Fibrosis
4/25/11
Skipper Dick Memorial
5/2/11
Juvenile Diabetes Research
5/9/11
Child Help
6/13/11
Class Fund
6/27/11
Survivor's Memorial Fund
8/15/11 RMJ Golf Classic
8/29/11 O.C. Alumni Association/
Ernst Young
9/12/11 Drive for a Cause
9/19/11 Sage Hill School
10/3/11 St. Margaret's School
11/14/11 Mariner's Christian School
BENEFITS (Charity/Organization)
Hoag Hospital Foundation
Hoag Hospital Foundation
Fundraiser
Fundraiser
Non -profit fundraiser — child abuse
Scholarship Fund
Fundraiser— Offer financial assistance to
families of officers killed in the line of duty
Richard Myles Johnson Foundation — funds
Meaningful youth financial education
projects /provides scholarships
Scholarship fundraiser
100% volunteer organization — all monies go
to community charities
Fundraiser for school
Fundraiser for school
Fundraiser for school
MEN'S 2011 TOURNAMENT SCHEDULE
1/15/11
Kick -Off Tournament
2/9/11
Men's Guest Day
3/5 -14/11
Toshiba Tournament
3/16/11
Men's Toshiba Super Guest Day
3/20/11
Couples St. Patrick's Day Event
3/26 -27/11
Partners Four Ball Spring Classic
4/30- 5/l/11
Member - Member
5/6/11
Couples Twilight Golf
5/11/11
U.S. Open Qualifying
5/15/11
Couples Championship
5/21 -22/11
Sr. & Super Sr. Club Championship
6/4,5,11, 12/11
Club Championship
6/17/11
Couples Twilight Guest Day
7/8/11
Couples Twilight
7/14 -16/11
NBCC Regatta Member -Guest
8/10/11
Men's Guest Day
8/12/11
Couples Twilight Guest Day
September
President's Cup Month
10/26/11
Men's Breast Cancer Awareness Guest Day
10/30/11
Ghosts & Goblins Couples Tournament
11/5/11
Junior Club Championship
11/23/11
Turkey Shoot
12/7/11
PGA Pro -Am
LADIES' 2011 TOURNAMENT SCHEDULE
1/4/11
Installation
2/3/11
Sadie Hawkins Invitational
2/17/11
General Meeting Play Day
3/20/11
Couples St. Patrick's Day Event
3/31/11
Ladies Guest Day
4/28/11
WSCGA Foundation Guest Day
5/6/11
Couples Twilight Golf
5110, 12, 17, 19/11
Ladies Club Championship
5/11/11
U.S. Open Qualifying
5/15/11
Couples Championship
6/17/11
Couples Twilight Guest Day
6/21/11
Ladies Guest Day
7/8/11
Couples Twilight Golf
8/12/11
Couples Twilight Guest Day
8/17 -19/11
Ladies Seahorse Classic
9/8/11
General Meeting Play Day
9/13,15/11
Mary K. Browne
10/25/11
Breast Cancer Awareness Day
10/30/11
Ghosts & Goblins
11/3/11
Fall Guest Day
11/5/11
Junior Club Championship
11/15, 17/1 l
Ladies President's Cup
11/22/11
Turkey Shoot
12/6/11
Holiday Tournament
SPECIAL EVENTS 2010
DATE
GROUP
EVENT
1/12/10
British American Assoc.
Luncheon meeting
1/23/10
Wedding
Ceremony /reception
2/6/10
Helpmates
Reception
2/17/10
Amigos Viejos
OC Seniors networking group
3/17/10
7 C's Breakfast
OC Gentlemen's networking group
3/17/10
CDM Flower Club
Luncheon meeting
4/24/10
Memorial Service
Member celebration of life
4/30/10
Mrs. Phillips
Social reception
5/2/10
Ortega Family
Birthday party
5/8/10
Newkirk Family
Anniversary dinner reception
5/19/10
Memorial Service
Member celebration of life
5/22/10
Cal Poly Pomona
Fraternity Banquet
5/26/10
USC Fraternity
Luncheon
5/26/10
7 C's Breakfast
OC Gentlemen's networking group
5/26/10
CDM Cheerleading
Annual banquet
6/12/10
Beacon Bay
Association breakfast meeting
6/16/10
Amigos Viejos
OC Seniors networking group
6/26/10
Wedding
Ceremony /reception
6/27/10
Baroque Dinner Party
Dinner
7/12/10
Price Waterhouse Cooper
Employee party
7/29/10
British American Mixer
Networking mixer
SPECIAL EVENTS 2010, CONTINUED
DATE
GROUP
EVENT
8/1/10
Wedding
Ceremony /reception
8/14/10
Wedding
Ceremony /reception
8/18/10
Amigos Viejos
OC Seniors networking group
8/16/10
50th Anniversary
Dinner
8/20/10
Wedding
Ceremony /reception
9/11/10
Wedding
Ceremony /reception
9/18/10
Estancia Reunion
High School Reunion
9/29/10
7 C's Breakfast
OC Gentlemen's networking group
10/6/10
British American Assoc.
Luncheon meeting
10/13/10
7 C's Breakfast
OC Gentlemen's networking group
10/23/10
Wedding
Ceremony /reception
10/26/10
7 C's Breakfast
OC Gentlemen's networking group
11/3/10
7 C's Breakfast
OC Gentlemen's networking group
11/13/10
Memorial Service
Member celebration of life
11/19/10
Wedding Rehearsal
Dinner
12/2/10
HSNO
Corporate Holiday Party
12/4/10
NB Newcomers
NB Social Holiday Party
12/11/10
Horizon Tech
Corporate Holiday Party
12/18/10
Meridian Link
Corporate Holiday Party
12/20/10
Northwestern Mutual
Corporate Holiday Party
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ACCESS EASEFnERT
A -30
NEWPORTBEACH, MIFDRNIA °°F`
UPDATED SITE PLAN
WITH FRONTAGE ROAD
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PROJECT DEVELOPMENT SUMMARY
NOTE
A. REFER LG CNIL DM ING FOR GMMS
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BEFORE AND AFTER
PROJECT DEVELOPMENT SUMMARY
NEWPORT BEACH COUNTRY CLUB
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GENERALNOTES
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CMU RETAINING WALL
CLUBHOUSE
PARKING
MEETINGS WITH CITY STAFF AND GOLF
REALTY FUND TEAM
Five meetings between the teams since August 4
Planning Commission hearing
Project Architects met twice and collaborated on:
Irvine Terrace Entry
Porte Cochere
Perimeter Fencing
NBCC has agreed to collaborate with Golf Realty
Fund on:
Light Fixtures
Signage
Landscaping
PARKING LOT LANDSCAPE SETBACK
ar
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R
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Newport Beach, California
SHEET INDEX:
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GENERAL NOTES
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NEWPORT BEACH, CALIFORNIA
1
f
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IRVINE TERRACE DRIVE
NEWPORT BEACH. CAUEORNIA
w r '
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LANDSCAPE AREA ALONG PCH
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COMPPARISONS OF KEYAREA£
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NEWPORT BEACH COUNTRY CLUB
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NEWPORT BEACH, MIFOFNw
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UPPER LEVEL FLOOR PLAN (20,520 S.F.)
AREA TABULATION:
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- GROUND LEVEL: 30,593 SF
TOTAL: 51,213 SF
NEWPORT BEACH, CnLIFORNiA
'�. —� I UPPER LEVF1
� � ROOR PLAN
moo �.... �....
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CART BARN (5.704 BY
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AREA TABULATION:
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TOTAL: 8.310 SF
I►I MITI aQ A 9 .01 AS] w
01
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1
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2
SPECIAL EVENTS 2009
DATE
GROUP
EVENT
1/1/09
British American Assoc.
Luncheon
1/7/09
Helpmates
Company reception
1/18/09
7 C's Breakfast
OC Gentlemen's networking group
1/18/09
Amigos Viejos
Seniors networking group
2/20/09
Wedding
Ceremony /reception
2/21/09
Baby Shower
Private luncheon
3/19/09
Memorial Service
Celebration of life
4/25/09
Wedding
Ceremony /reception
5/13/09
US Open
Qualifying for US Open
5/13/09
CDM Cheerleading
Banquet
5/20/09
UCI
Employee Luncheon
5/23/09
7 C's Breakfast
OC Gentlemen's networking group
5/24/09
Jones
50`h Anniversary Party
5/27/09
7 C's Breakfast
OC Gentlemen's networking group
5/30/09
Wedding
Ceremony /reception
6/3/09
USC Fraternity
Luncheon
6/13/09
Wedding
Ceremony /reception
6/14/09
Macintosh
Memorial Service
6/16/09
Sherman Garden
Luncheon
6/16/09
Graduation
Dinner parry
6/17/09
Amigos Viejos
OC Seniors networking group
6/20/09
Beacon Bay
Breakfast meeting
6/26/09
Blackburn
Family get- together
7/2 -22/09
Newport Beach Breakers
Tennis match
7/22/09
Kissen Wedding
Ceremony /reception
7/25/09
Memorial Service
Member celebration of life
7/30/09
British American Assoc.
Luncheon
SPECIAL EVENTS 2009, CONTINUED
DATE
GROUP
EVENT
8/1/09
Wedding
Ceremony /reception
8/8/09
Seaberg
Anniversary Party
8/14/09
Price Waterhouse Cooper
Employee party
8/15/09
Wedding
Ceremony /reception
8/22/09
Wedding
Ceremony /reception
8/29/09
Memorial Service
Member celebration of life
9/9/09
British American Assoc.
Luncheon
9/18/09
Northwestern Mutual
Seminar /luncheon
9/19/09
CDM Class of 1959
Reunion
9/29/09
Memorial Service
Member celebration of life
10/10/09
Wedding
Ceremony /reception
10/28/09
7 C's Breakfast
OC Gentlemen's networking group
11/11/09
Social Event
Private party
11/14/09
Wedding
Ceremony /reception
12/3/09
HSNO
Company party
12/5/09
Horizon Tech
Company party
12/12/09
NB Newcomers
Holiday party
12/17/09
Price Waterhouse Cooper
Company party
12/21/09
Northwestern Mutual
Company party
12/26/09
Wedding
Ceremony /reception
SPECIAL EVENTS 2008
DATE
GROUP
EVENT
1/6/08
Toastmaster
Seminar
1/20/08
MBK Seminar
Seminar /dinner
2/9/08
Helpmates
Staffing company reception
2/20/08
Amigos Viejos
OC Seniors networking group
2/23/08
Voltmer
Anniversary party
3/15/08
Lake
Birthday party
3/21/08
Cuavas
Private party
3/29/08
Member Memorial
Celebration of Life
4/6/08
OC Symphony
Concert and dinner
4/16/08
Amigos Viejos
OC Seniors networking group
4/27/08
CDM Cheerleading
Banquet
4/30/08
USC Fraternity
Luncheon
5/14/08
US Open
Qualifying for US Open
5/28/08
7 C's Breakfast
OC Gentlemen's networking group
6/12/08
Northwestern Mutual
Seminar /luncheon
6/18/08
Amigos Viejos
OC Seniors networking group
7/12/08
60th Anniversary
Dinner
7/23/08
7 C's Breakfast
OC Gentlemen's networking group
SPECIAL EVENTS 2008, CONTINUED
DATE
GROUP
EVENT
8/10/08
Mersch
Family get- together
8/16/08
Vanderpool
Private dinner
8/20/08
Amigos Viejos
OC Seniors networking group
8/23/08
Member Party
Private dinner
8/28/08
Price Waterhouse Cooper
Employee party
9/6/08
Wedding
Ceremony /reception
9/11/08
CMAA
Luncheon meeting
9/16/08
British American Assoc.
Luncheon meeting
9/17/08
7 C's Breakfast
OC Gentlemen's networking group
10/8/08
Northwestern Mutual
Seminar /luncheon
10/11/08
Wedding
Ceremony /reception
10/15/08
7 C's Breakfast
OC Gentlemen's networking group
10/18/08
Memorial Service
Celebration of life
10/25/08
Dinner Party
Private party
11/5/08
7 C's Breakfast
OC Gentlemen's networking group
12/5/08
HSNO
Corporate party
12/12/08
Hilton Costa Mesa
Corporate party
12/16/08
Promontory Bay
Association party
12/17/08
Amigos Viejos
OC Seniors networking group
12/21/08
Maggard Family
Private party
12/22/08
Northwestern Mutual
Corporate party
PARKING LOT
Before - Landscape Buffer
5' from back of sidewalk to frontage road
7' from back of frontage road to parking lot
Total 35'
After - With Frontage Road
5' from back of sidewalk to frontage road
10'5" from back of frontage road to parking lot (3.5' increase)
Total 38'5"
After - Without Frontage Road
20' from back of sidewalk to parking lot
NEWPORT BEACH COUNTRY CLUB
Planned Community District
Application PA 2005 -140
November 17, 2011 Planning Commission Meeting
NEWPORT BEACH
COUNTRY CLUB
PCD
• Master Plan
Reorientation
- Golf Parking Lot
- Golf Clubhouse
- The Bungalows
- The Villas
- The Spa
- Tennis Clubhouse
- Stadium Court
• Community
Outreach
- Stakeholder Input
- Plan Evolution
Newport Beach Country Club - PCD
NEWPORT BEACH
COUNTRY CLUB
PCD
• Expanded GC Parking
- 34 More Parking Spaces
- 334 Exclusive Parking
Spaces
- 90 over Required
Parking
- Additional 554 Non -
Exclusive Parking Spaces
• Addresses Irvine
Terrace Concerns
- 700' PCH Buffer
- Parking Lot Design
• Open Space Views
Building Footprint
Preserves PCH Golf
Course Views
The Golf Clubhouse
Proposed IBC Goll Clubhouse evcaeds the
recent voter approved General Plan by
20 (t00 sa e an i
Proposed IBC Got Parking Lot is 166.36a
so It ofasp6all 150'slargerthantare
PropeM Owner Plan.
Proposed IBC Clubhouse M1ontege and
proposed walls eliminate mcuall, all vlans
of the gall course nom the PCH and Entry
Proposed IBC Clubhouse coding is 140 / Green
wider and I W' feet claser to i In
cornpaMOn to Vie Pupped, Owner Plan
11 Tee
Property Owner Plat
Maintenance Bli
F.tppnt 2,8]5 s4 f1
8.5"
Ma11 w It
errs x
Proposed IBC Plan crowds the existing
16th "T' Ma
In Tee Prance Patch. Green
Green
I BN Green 260' r
W pp
Property Owner
.13,14 f III
_ •�' Gnu Cpt
1
e—
- --
IBC Clubhouse h ,.— ____
Fnptprint �ei
30,693 so It , �♦
prpypead wil r� — j 1
Prop" Garner Han Iles ]8.9]0 sq If or
25oti more landscaping than the IBC Plan
This significantly anhances views from
t Irvine Terrace. PCH and ending the Country
400' Club
I Estent of SC
Proposed IBC Clubhouse rs 100 If closer pr.,i
and t20 M wider than ma Pool Owner t. PeMin9 Lot
Plan as viewed from PCH
J ARMSTRONGS
NURSERY IvMla. w
Properly Omer Golf Clubhouse bas a <W
foot setback from PCH protecting the
emeting golf coume views aril providing a
strong Entry attached while presprwng
e.rsong views 10 Open Space
Property Owner Golf Palo, Lot s mono
mothers and generous landscaped
setbacks reduces the visual dominance of
the parking lot and Creates a significant
landscape Conrdo, 9d,exce to PCH.
E,taal .1 184C
ePar l
T
O
e
F
U
SIR e
ut Tee precuts
Oreen
C.Trincental berth faalllles with large
prefunction areas are not typical and are IMh &. Progeny Owner �� /
Inconsistenl with Me private gat clubhouse. Got, Clubhouse / �
Footprint 26.044 sq n / b
IBC's propose0 banquet facilities and
\ \a
prelunctlon areas are beyond the needs of
exdus. prwaw grri and will Eyte t of Gretlirlg_ �' � / \ g
cBate aadhonal trarocana golf member
onnias. \
ThepropmesiBCClubhouseislWtl �� IBC Clubhouae �` A \
closer to PCH and 120 at wider than Me / 1 �' -- Footprint ,� % `` 'k
Property Owner s clubhouse IW Green 30,693 eq tt ` *
/ 6lsling Can , .
/ Balm lobe ` witembdrs `�
Removed we Entry
IDs IBC flan proposes a now ma�nlenerroa r' 1
builtltng anal BIZ test doses 10 aide / J�.��� -- w� \
amroeching upon Me Valid green i. - - - -� I Banquet te
eg High Wells Entry
No imperil
re Given le Get[ Entry
It 20 Btpa
,6Th Tea% .. k / i -if
— r— °— r �i• _.
1 -
pp
s RaUlning Wall J/
/ £M
---
— 1 Refuse gWall /
I R.- I / I
I
L
300'
IBC maintenance .
Bldg Footprint i Euera of %opeM /
9.565 aq n The proposed IOC parking lot has dean Qypefe proposal
expanded to the west and wAl requhe the / Parking Lot I 11
removal of existing trees / __t
_ —� L—
The proposed IBC Pian increases the
crimper of parkmg spaces from nodd' `
and mcmases the asphalt area maintaining
a swap meet appearance to the parking
of
Long Idem south rows of parking mail
des shopping tamer appearance of the
parkmg lot.
cirm un .— . —.all .. eu., o— PACIFIC COAST HIGHWAY
The proposed IBC plan has i continuous
parking Spaces backing up 10 PCH wrtneut
even a landscape pocket to break up the
parking
�I![A3lC�I!It1.T.S�171!�
identical straight . narrow landscagee
setback along PCH homage as exists
today
Fencing and pilasters located an the PCH
lust behind feral
GOLF COURSE
P4RKING
-
COAST HIGHWAY
Truck Type
Rear Dump
Truck
Bottom Dump
Truck
Yards Per Truck
10 cu yds
14 cu yds
Total Truck Trips
3,906
2,790
Daily Trips - Assumes 15 Trucks,
4 cycles per day
60
60
Total Work Days
65
47
Total Months
3.25
2.35
124'+/- closer 0 Coast
.00 —` w`
16C Proposed Clubhouse
f�-PW
___-- -____ Ex ist_ in G 9__�
rade
NEWPORT BEACH
COUNTRY CLUB
PCD
• IBC Requested Parking
Lot Changes
- Same Secondary Access
- Same 334 Parking Spaces
- 3 Pedestrian Sidewalks
- No Encroachments
- Same Orientation of
Clubhouse
• Eliminates Grade
Difference
.9 Feet & 12 -18 Steps
• Retains Promised
Parking Lot Design
- 700' PCH Buffer
- Softens "Sea of Asphalt"
Compromise Plan 11
NEWPORT BEACH
COUNTRY CLUB
PCD
• Secondary Access for
Deliveries
• 334 Parking Spaces
• Retains Aesthetic
Entry Window Design
Landscape Buffer along
PCH
- Enhances Public Open
Space Views
- Retains Possibility of
Preserving Existing
Public Views to Golf
Course Open Space
Master Plan Compromise
The White Hole Plan