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Home My WebLink About2012-5 - Approving Development Agreement No. DA2010-005 for Property Located at 1600 East Coast Highway (PA2008-152)ORDINANCE NO. 2012 -5 AN ORDINANCE OF THE CITY OF NEWPORT BEACH APPROVING DEVELOPMENT AGREEMENT NO. DA2010 -005 FOR PROPERTY LOCATED AT 1600 EAST COAST HIGHWAY (PA2008 -152) THE CITY COUNCIL 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). 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 Planning Commission held public hearings on August 4, 2011 and October 20, 2011, and November 17, 2011. At the November 17th hearing with a vote of 3 -2, the Planning Commission adopted Resolution No. 1862, recommending the City Council to: a. Adopt Mitigated Negative Declaration No. ND2010 -010 and the Mitigation Monitoring and Reporting Program; b. Approve General Plan Amendment No. GP2008 -005, Development Agreement No. DA2010 -005, Limited Term Permit No. XP2011 -005 as proposed by the applicant; C. Adopt an amendment to Planned Community Development Plan No. PC2005 -002 (staffs alternative Planned Community Development Plan) reflecting the increase in intensity for the larger golf clubhouse of 56,000 gross square feet; and d. Approve Site Development Review No. SD2011 -003 as proposed by the applicant. 4. The City Council public hearing was held on January 24, 2012, 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 City Council 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 Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program were adopted by City Council on January 24, 2012, by adopting certain CEQA determinations containing within Resolution No. 2012 -11, which are hereby incorporated by reference. 3. The City Council finds that judicial challenges to the City's CEQA determinations and approvals of land use projects are costly and time consuming. In addition, project opponents often seek an award of attorneys' fees in such challenges. As project applicants are the primary beneficiaries of such approvals, it is appropriate that such applicants should bear the expense of defending against any such judicial challenge, and bear the responsibility for any costs, attorneys' fees, and damages which may be awarded to a successful challenger. SECTION 3. FINDINGS 1. 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. 2. Consistent with Government Code Section 65867.5, the Development Agreement provides vested rights and public benefits for the proposed development which is consistent with the General Plan based on the following findings: 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. 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. SECTION 4. DECISION. THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH DOES HEREBY ORDAIN AS FOLLOWS: 1. The Development Agreement shall be adopted as depicted in Exhibit "A" attached hereto and incorporated by reference. 2. If any section, subsection, sentence, clause or phrase of this ordinance is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this ordinance. The City Council hereby declares that it would have passed this ordinance, and each section, subsection, clause or phrase hereof, irrespective of the fact that anyone or more sections, subsections, sentences, clauses and phrases be declared unconstitutional. 3. This action shall become final and effective thirty days after the adoption of this Ordinance. 4. The Mayor shall sign and the City Clerk shall attest to the passage of this Ordinance. This Ordinance shall be published once in the official newspaper of the City, and the same shall become effective thirty (30) days after the date of its adoption. This Ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach held on the 24th of January, 2012, and adopted on the 14th day of February, 2012, by the following vote, to wit: AYES, COUNCIL MEMBERS Hill, Rosansky, Curry, Henn, Daigle NOES, COUNCIL MEMBERS Mayor Gardner ABSENT, COUNCIL MEMBERS_ Leilani Brown, City Clerk None APPROVED AS TO FORM, F ICE OF CITY ATTORN Y: Aaron Harp, City Attorney 1 �I2i I I i= for the City of Newport Beach EXHIBIT "A" DEVELOPMENT AGREEMENT Tmplt: 11/23/09 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 E N EWPORT BEACH COUNTRY CLUB, INC. (Concerning ,1600 East Coast Highway) All- OD526 -NBCC/ Inc Int'l Bay Clubs 01.18.12 TABLE OF CONTENTS Page 1. Definitions ..........................:................................................................ ...................:..........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 ........................................................................................ ..............................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 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 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 .................................................................................... .............................14 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 .......................15 9. Force Majeure .................................................................................... .............................16 A11- 00526 -NBCC/ Inc Int'l Bay Clubs 01.13.12 Final -1- Page 10. Indemnity Obligations of NBCC ....................................................... .............................16 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 ...................................................... .............................18 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 ............................................................................ .............................20 13.4 Estoppel Certificates .............................................................. .............................20 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 ................................................................... .............................21 13.11 Construction ........................................................................... .............................22 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 ................................................................... .............................23 13.16 Incorporation of Recitals and Exhibits .................................. .............................23 13.17 Recordation ............................................................................ .............................23 AI 1- 00526 -NBM Inc Int'l Bay Clubs 01.13.12 Final -11- 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 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. AI I- 00526 -NBCC Inc Int'l Bay Clubs 01.13.12 Final -1- 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. 200601 1 1 1 9) 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_1 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. "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. All-00526-NBCC/ Inc Int't Bay Clubs 01.13.12 Final "City" shall mean the City of Newport Beach, a California charter city. "City Council" shall mean the governing body of City. "City's Affiliated Parties" shall have the meaning ascribed in Section 10.1 of this Agreement. "Claim" shall have the meaning ascribed in Section 10.1 of this Agreement. "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 Period" shall have the meaning ascribed in Section 8.1 of this Agreement. "Default" shall have the meaning ascribed to that term in Section 8.1 of this Agreement. "Develop" or "Development" shall mean to improve or the improvement of the Property for the purpose of completing the structures, improvements, and facilities comprising the Project, including but not limited to: grading; the construction of infrastructure and public facilities related to the Project, whether located within or outside the Property; the construction of all of the private improvements and facilities comprising the Project; the preservation or restoration, as required of natural and man-made or altered open space areas; and the installation of landscaping. The terms "Develop" and "Development," as used herein, do not include the maintenance, repair, reconstruction, replacement, or redevelopment of any structure, improvement, or facility after the initial construction and completion thereof. "Development Agreement Ordinance" shall mean Chapter 15.45 of the City of Newport Beach Municipal Code. "Development Agreement Statute shall mean California Government Code sections 65864- 65869.5, inclusive. "Development Exactions" shall mean any requirement of City in connection with or pursuant to any ordinance, resolution, rule, or official policy for the dedication of land, the construction or installation of any public improvement or facility, or the payment of any fee or 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. A11- 00526 -NBCC/ Inc Int'l Bay Clubs 01.13.12 Final "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 any Hazardous Substances, including without limitation the following: the Comprehensive Environmental Response Compensation and Liability Act of 1980, 42 U.S.C. Sections 9601, et seq., as amended ( "CERCLA "); the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976, 42 U.S.C. Sections 6901, et �., as amended Al 1- 00526 -NBCC/ Inc Intl Bay Clubs 01.13.12 Final 4 ( "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 sue., 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 seq., 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 sea., as amended; the Federal Safe Drinking Water Act, 42 U.S.C. Sections 300f et sea., 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 sue. "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 Defaul '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. All-00526-NBCC/ Inc Int'I Bay Clubs 01.13.12 Final 5 "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. "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. 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 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 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." All- 00526 -NBCC/ Inc Int'l Bay Clubs 01.13.12 Final 6 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 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) 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. 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 Is` 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 All- 00526 -NBCC/ Inc 1.0 Bay Clubs 01.13.12 Final 7 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. The Public Fee Benefit Fee shall be calculated based on the total square feet of construction for the proposed golf clubhouse and NBCC shall not be entitled to any credit or offset to the Public Benefit Fee for any existing buildings or structures. 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 Aolicable 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 Al 1- 00526 -NBCC/ Inc Int'l Bay Clubs 01.13.12 Final 8 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. 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 Govemment 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 Al 1-00526 -NBCC/ Inc Int'l Bay Clubs 01.13.12 Final 9 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 Authoritv. 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 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 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 All- 00526 -NBCC/ Inc inPI Bay Clubs 01.13.12 Final 10 "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 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 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. Al 1- 00526- NBCC / Inc Int'l Bay Clubs 01. 13.12 Final 11 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. 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 annual review. City's failure to timely provide or conduct an annual review shall not constitute a Default hereunder by City. A11- 00526- NBCC / Inc Int'I Bay Clubs 01.1112 Final 12 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 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 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. All-00526-NBCC/ Inc Int'IBay Clubs 01.13.12 Final 13 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. It is the intention of the Parties that, while the City Council may declare a default and initiate termination of this Agreement on the basis of substantial evidence in the administrative record, if the declaration of default is contested in court, the court will review the default claim de novo and base its decision on whether the preponderance of evidence supports the City Council's finding of breach. 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 future Notice of Default of the same or any other Default. Al 1- 00526- NBCC / Inc Int'I Bay Clubs 01.13.12 Final 14 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 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 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. 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 Al I- 00526- NBCC / Inc Int'l Bay Clubs 01.13.12 Final 15 initiation of the Action, regardless of whether the Action is prosecuted to a final judgment or decision. 9. Force Mai cure. 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 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 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 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 Al 1- 00526- NBCC / Inc Int'l Bay Clubs 01.13.12 Final 16 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 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. Al I- 00526- NBCC / Inc Int'l Bay Clubs 01.13.12 Final' 17 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 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 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. All-00526-NBCC/ Inc Int'LBay Clubs 01.13.12 Final 18 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: 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 All- 00526 -NBCC/ Inc InPI Bay Clubs 01.13.12 Final 19 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. 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 All- 00526 -NBCCI Inc Int'l Bay Clubs 01.13.12 Final 20 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. 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 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 Al 1- 00526 -NBCC/ Inc Int'l Bay Clubs 01.13.12 Final 21 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. This Agreement has been drafted after negotiation and revision. 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, terms, and conditions. This Agreement shall therefore be construed as a whole consistent with its fair meaning, and applicable 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 Acce tance 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. Al 1- 00526 -NBCC/ Inc Intl Bay Clubs 01.13.12 Final 22 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 DESIGNATION DESCRIPTION A Legal Description of Property Overall Site Plan and Overall Site Plan B1 &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] Al 1- 00526 -NBCC/ Inc Int'I Bay Clubs 01.13.12 Final 23 SIGNATURE PAGE TO DEVELOPMENT AGREEMENT "NBCC" 0 By: 1 Its:_ ExeawA e c% L"! By: Its:4wA v 4%ccPres 4 CFO Ga4p r ' JON KS OM "CITY" C. In It: ATTEST: City Clerk APPROVED AS TO FORM: Aaron Harp, City Attorney Or// Z Al I- 00526 -NBCC Inc Int't Bay Clubs 01. 13.12 Final 24 CALOGrORHOA Add - PURPOSE ACKNOWLEDGMENT CIVIL CODE § 71ag State of California pp County of 0 zrU� On (anVa " 0 202 before me, Mst(k I M c1 m6ld, ,Notary pudgy I) � ate Here Insert Name ant Title of the Officer personally appeared v �N o64m CRISTAL MCDOPoALD m� Comrrllssian 0 1950148 Z "a Notary Public - California Orange County ty Comm. Ex Tres Au 28, 2015 Place Notary Seal Above who proved to me on the basis of satisfactory evidence to be the person,(aj whose nameWis /aFe subscribed to the within instrument and acknowledged to me that he /,5�4/tMy executed the same in his /wr/wir authorized capacity", and that by hiOeF /tperr signatureM on the instrument the personasl, or the entity upon behalf of which the person(Wacted, 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. WITNESS my hand and official seal. � p Signature: OPTIONAL Signature of Notary Public Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: Number of Pages: ❑ Corporate Officer — Title(s): ❑ Corporate Officer — Title(s): ❑ Individual ❑ Partner — ❑ Limited ❑ General Top of thumb here ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: ❑ Individual a ❑ Partner — ❑ Limited ❑ General Top of thumb here ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: —1. °,,,a, ........... a, y.aiy , aw w Nv,r , trauu -nro uezq Item #5907 C;•,LIFIi)F:�JI:. NLL- F'Uf`iF'G1tiE ,��.I�V{NC)''JLEDDC;P,IEP�T State of California County of y r� / On reVtf( `I If Z ()w Z before me, UI ( s nam personally appeared CRISTAL MCDONALD Commission A 1950148 Notary Public - California z a Orange County s My Comm. Expires Aug 28, 20151 ah CIVIL CODE 4 1189 It who proved to me on the basis of satisfactory evidence to be the person,(sj' whose nameX is /W,6' subscribed to the within instrument and acknowledged to me that he /,sLT6 /t¢ey executed the same in his/wr/ttlir authorized capacity(je8), and that by his /Wr4helrr signature(s) on the instrument the person, g), 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. WITNESS my�hand and official seal. Signature: I Place Notary Seal Above g p� q { Signature of Notary Public ®P I /QIVHL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Corporate Officer — Title(s): • Individual e • Partner — ❑ Limited ❑ General Top of thumb here Cl Attorney in Fact ❑ Trustee • Guardian or Conservator • Other: Signer Is Representing: Number of Pages: Signer's Name:. ❑ Corporate Officer — Title(s): O Individual MMO El Partner — ❑Limited ❑General Top of thumb here ❑ Attorney in Fact ❑ Trustee O Guardian or Conservator ❑ Other: Signer Is Representing: . - -- -- ..-1.... 1,,,,,,, ,,,,, ,,,,111 Item #5907 EXHIBIT A LEGAL IDESCRIPTION OF PROPERTY The Golf Club; Parcel 1 of Parcel Map No. 79 -704, in the City of Newport Beach, County of Orange, State of California, as per Map filed in Book 152, Pages 17 to 20, inclusive, of Parcel Maps, in the office of the County Recorder of Orange County. And that portion of Back Bay Drive as shown on Parcel Map No. 79 -704, as per Map filed in Book 152, Pages 17 to 20 of Parcel Maps, that would attach by operation of the LAS to abutting property owners by vacation recorded October 17, 1989 as Instrument No. 89- 558952 Official Records. Parcel 3 of Parcel Map No. 79 -704, in the City of Newport Beach, County of Orange, State of California, as per Map filed in Book 152, Pages 17 to 20, inclusive, of Parcel Maps, in the Office of the County Recorder of Orange County. AIO -00773 01.13.12 Final I EXHIBIT 61 DEPICTION OF PROPERTY NEWPORT BEACH COUNTRY CLUB NEWPORTBEACH. ru.. A] 1-00526 \BCC / Inc Im'I Bay Clubs 01 0G I? O FiMI I PAW NG RECUIREAIENTS �utU .. �.• umq { Waw W ,.ww.rlgwe ff *aw `w�r��w. ve PRGJE)CT DEVELOPMENT SUMMARI' � ICY rafuu.r.�i . e �s.eq ia. GENER ;NOTES .w.nn..ccs� i:. NEWPORT BEACH COUNTRY CLUB NEWPORTBEACH. ru.. A] 1-00526 \BCC / Inc Im'I Bay Clubs 01 0G I? O FiMI I PAW NG RECUIREAIENTS �utU .. �.• umq { Waw W ,.ww.rlgwe ff *aw `w�r��w. ve PRGJE)CT DEVELOPMENT SUMMARI' � ICY rafuu.r.�i . e �s.eq ia. GENER ;NOTES .w.nn..ccs� EXHIBIT B2 NEWPORT BEACH COUNTRY CLUB a �� NEWPORT BEACH. wroarn IRI't Hay Clubs 0 1.1 3 1, Final 2 PARKING REQUIREMENTS wl 1- PRO :ECTG VELOP&�NT Sw"ARY ILz" u� ^�.., _. :\ I' ":j 115 \- ..ice• , ....- NoTE ... " GENERAL NOTES NEWPORT BEACH COUNTRY CLUB a �� NEWPORT BEACH. wroarn IRI't Hay Clubs 0 1.1 3 1, Final 2 STATE OF CALIFORNIA } COUNTY OF ORANGE } ss. CITY OF NEWPORT BEACH } I, Leilani I. Brown, City Clerk of the City of Newport Beach, California, do hereby certify that the whole number of members of the City Council is seven; that the foregoing ordinance, being Ordinance No. 2012 -5 was duly and regularly introduced on the 24th day of January, 2012, and adopted by the City Council of said City at a regular meeting of said Council, duly and regularly held on the 14Lh day of February, 2012, and that the same was so passed and adopted by the following vote, to wit: Ayes: Hill, Rosansky, Curry, Selich, Henn, Daigle Noes: Mayor Gardner Absent: None IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said City this 15ffi day of February, 2012. (Seal) xjk S b'YVr" City Clerk City of Newport Beach, California CERTIFICATE OF PUBLICATION STATE OF CALIFORNLA } COUNTY OF ORANGE } ss. CITY OF NEWPORT BEACH } I, LE.ILANI I. BROWN, City Clerk of the City of Newport Beach, California, do hereby certify that Ordinance No. 2012 -5 has been duly and regularly published according to law and the order of the City Council of said City and that same was so published in The Daily Pilot, a daily newspaper of general circulation on the following dates: Introduced Ordinance: January 28, 2012 Adopted Ordinance: February 18, 2012 In witness whereof, I have hereunto subscribed my name this % day of 2011. City Clerk City of Newport Beach, California