HomeMy WebLinkAboutC-4532 - Zoning Implementation and Public Benefit AgreementRECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
City Clerk
City of Newport Beach
P.O. Box 1768
Newport Beach, CA 92658-8915
Recorded in Officaal tM Dunty
Tom Daly, Clerk -Recorder
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153 415 Al2 29 OFFICE OF
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THIS SPACE FOR RECORDER'S USE ONLY.
TITLE OF DOCUMENT:
Of
Exempt Recording Request per Government Code 27383
ZONING IMPLEMENTATION AND
PUBLIC BENEFIT AGREEMENT
BETWEEN THE CITY OF NEWPORT
BEACH AND MORNINGSIDE
RECOVERY, LLC.
ZONING IMPLEMENTATION
AND PUBLIC BENEFIT AGREEMENT
(Pursuant to California Government Code §§ 65864-65869.5)
This Zoning Implementation and Public Benefit Agreement (the "ZONING
AGREEMENT") isentered into on I'EPTt Mol,'r 2l , 2010, by and between the CITY
OF NEWPORT BEACH, a charter city ("CITY") on the one hand, and
MORNINGSIDE RECOVERY, LLC, ("MORNINGSIDE") on the other. The CITY
and MORNINGSIDE are collectively referred to as the "PARTIES."
Recitals
A. The City Council hereby finds this ZONING AGREEMENT is
consistent with the provisions of California Government Code §65867, the City of
Newport Beach Municipal Code Chapter 15.45, and the City's General Plan.
B. On June 3, 2010, the City's Planning Commission held a public
hearing on this ZONING AGREEMENT, made findings and determinations with
respect to this ZONING AGREEMENT, and recommended to the City Council that
the City Council approve this ZONING AGREEMENT.
C. On September 14, 2010, the City Council also held a public hearing
on this ZONING AGREEMENT and considered the Planning Commission's
recommendations and testimony and information submitted by City staff,
MORNINGSIDE, and members of the public. On September 28, 2010, pursuant to
applicable state law (California Government Code §§ 65864-65869.5) and local law
(City of Newport Beach Municipal Code Chapter 15.45), the City Council passed its
Ordinance No. 20/0-18 finding this ZONING AGREEMENT to be consistent with
the City of Newport Beach General Plan and approving this ZONING
AGREEMENT.
II.
Definitions
The following terms when used in this ZONING AGREEMENT shall have the
meanings set forth below:
A. "BLOCK" shall mean an area that is bounded on all sides by streets. In
the Peninsula Zone, a BLOCK length is 617 feet, which is the calculable median
block length within the City of Newport Beach's Nonstandard Subdivision Areas.
B. "CITY" shall mean the City of Newport Beach and its City Council.
(L09-0011 J —Zoning Agreement - Momingside — 10.09.02 Final
C. "CLIENT" (or "CLIENTS") shall mean any persons residing at any
MORNINGSIDE FACILITY for the purpose of recovering from drug and/or alcohol
abuse.
D. "CLIENT BEDS" shall mean physical accommodations in each Facility
where Clients sleep or otherwise overnight.
E. "CONTROL" (including the terms "controlling," "controlled by," and "under
common control with,") shall mean the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of a person, whether
through the ownership of voting securities, by contract, or otherwise.
F. "FACILITY" (or "FACILITIES") is a residential unit used or occupied by
persons in recovery from alcoholism and/or drug abuse. Facilities may be "licensed
facilities" or unlicensed "sober living homes." As used in this AGREEMENT, all
facilities constitute "residential care facility" uses within the context of the City's
zoning ordinance.
G. "GENERAL PLAN" shall mean the 2006 General Plan adopted by the
City Council on July 25, 2006, by Resolution No. 2006-76 as periodically amended.
The Land Use Plan of the Land Use Element of the General Plan was approved by
Newport Beach voters in a general election on November 7, 2006.
H. "LICENSED FACILITIES" shall mean alcoholism and drug abuse
recovery facilities licensed by the California Department of Alcohol and Drug
Programs ("ADP").
I. "PARTY" or "PARTIES" shall mean either the CITY or MORNINGSIDE
or any of MORNINGSIDE's affiliates or both, as determined by the context.
J. "PROPERTY" or "PROPERTIES" shall mean MORNINGSIDE's
facilities at 4823 A River Avenue and 4823 B River Avenue; 112 B 39th Street; 5015
A River Avenue and 5015 B River Avenue until September 30, 2010; 100 Via
Antibes, 102 Via Antibes and 208 Via Lido Soud beginning September 1, 2010; and
29 Ima Loa Court in Newport Beach. Additionally, this ZONING AGREEMENT shall
apply to parcels not yet identified upon which MORNINGSIDE may operate facilities
within CITY in the future.
K. "SOBER LIVING HOMES" shall mean alcoholism and/or drug abuse
recovery facilities that are not licensed by the ADP.
L. "7-and-OVER" shall mean any FACILITY licensed by the ADP to
house more than 7 persons in recovery for drug and/or alcohol abuse.
Morningside Recovery, LLC Zoning Agreement
Exhibit A to Settlement Agreement
(L09-0011]—Zoning Agreement - Morningside — 10.09.02 Final
2
III.
Agreement
A. Terms of Agreement. This ZONING AGREEMENT allows
MORNINGSIDE a vested right to the following:
1.)
MORNINGSIDE may operate FACILITIES with up to thirty-six
(36) CLIENTS and thirty-six (36) CLIENT BEDS in Newport
Beach pursuant to certain operational guidelines described
more particularly in Exhibit 1 attached hereto. Except as
described in Section A (3), below, MORNINGSIDE may not
exceed 36 CLIENTS and 36 CLIENT BEDS in Newport Beach.
2.) MORNINGSIDE may house up to 30 of its 36 total CLIENTS
and have up to 30 of its CLIENT BEDS in the Newport Beach
"Peninsula Zone." The Peninsula Zone is more particularly
defined in Exhibit 2 attached hereto;
3.) MORNINGSIDE can exceed its 36 CLIENT and 36 CLIENT
BED maximum only by acquiring 7-and-OVER FACILITIES that
have obtained use permits under Chapter 20.91A of the
Newport Beach Municipal Code.
4.) MORNINGSIDE shall conduct its operations in Newport Beach
in conformance with the Operational Conditions attached
hereto as Exhibit 1.
5.) MORNINGSIDE will comply with the following dispersal and
distancing requirements for its FACILITIES in Newport Beach:
a. Only one (1) treatment home or sober living facility (licensed
or unlicensed by ADP) is allowed per BLOCK, and no
FACILITIES facing each other;
b. No FACILITIES (licensed or unlicensed by ADP) within
1,000 feet of public elementary schools or large, state -
licensed day-care facilities.
B. Significant Public Benefits. The significant public benefits that this
ZONING AGREEMENT provides include, but are not limited to, the following:
1.) Settlement and avoidance of litigation costs, including the
continued expenditure of attorneys' fees;
Morningside Recovery, LLC Zoning Agreement
Exhibit A to Settlement Agreement
(L09-0011.1 —Zoning Agreement - Morningside — 10.09.02 Final
2.) Preservation of the regulatory ordinance that was the subject
matter of this lawsuit;
3.) Avoidance of potential federal administrative proceedings;
4.) A reduction and limitation on the size of a residential care
operation in Newport Beach, including a limitation on
LICENSED FACILITIES;
5.) Dispersal of LICENSED FACILITIES and SOBER LIVING
HOMES to reduce the concentration thereof in the City's
residential districts;
6.) The placement of operational controls on said FACILITIES to
reduce the perceived negative impacts on the City's residential
neighborhoods;
C. General Plan Consistency and Zoning Implementation. This ZONING
AGREEMENT and the regulations applied herein to MORNINGSIDE will cause the
City of Newport Beach's zoning and other land use regulations to remain consistent
with the GENERAL PLAN.
D. Warranties and Representations. Both PARTIES represent they have
legal authority to enter into this ZONING AGREEMENT and the remainder of the
agreements and documents that comprise the settlement documents herein, and
that the necessary authorizations have been obtained, by resolution or other action,
and that the persons whose names appear as signatories below were authorized to
accept this ZONING AGREEMENT on behalf of the PARTY under whose name
they signed.
1.)
Each PARTY specifically represents and warrants that it has
the legal authority to enter into a ZONING AGREEMENT of the
type and kind herein, and,
2.) The City of Newport Beach represents and warrants that this
ZONING AGREEMENT and the regulations applied to
PROPERTY are:
a. Consistent with the GENERAL PLAN for the City of Newport
Beach and any Specific Plans that apply to the area in
which any portion of MORNINGSIDE's PROPERTIES are
located, and;
Morningside Recovery, LLC Zoning Agreement
Exhibit A to Settlement Agreement
[L09-0011] —Zoning Agreement - Morningside — 10.09.02 Final
b. Consistent with the Local Coastal Land Use Plan ("CLUP")
for the City of Newport Beach and that the CLUP has been
approved by the California Coastal Commission.
E. Operation of Property: Applicable Regulations. Other than as
expressly set forth in this ZONING AGREEMENT, the terms and conditions
concerning the operation of the PROPERTIES, including but not limited to the
permitted uses, density, intensity of use, and the location of buildings involved, shall
be those set forth in the City of Newport Beach's ordinances and regulations. The
City of Newport Beach shall not prevent operation of the PROPERTIES in
compliance with the applicable regulations and all other applicable laws and
regulations in Section I, below.
F. Vested Rights. During the term of this ZONING AGREEMENT,
except to the extent the City of Newport Beach reserves its discretion as expressly
set forth in this ZONING AGREEMENT or in the applicable regulations and all other
applicable laws and regulations specified in Section I, MORNINGSIDE shall have
the vested right, within the limits and constraints of the applicable regulations, to
conduct operations of LICENSED FACILITIES and SOBER LIVING HOMES at its
PROPERTIES. In the event Ordinance 2008-5 is repealed by action of the City
Council of the City of Newport Beach or the electorate, or if a court of competent
jurisdiction declares the Ordinance invalid or unenforceable, this ZONING
AGREEMENT shall remain in full force and effect.
G. Police Power. In all respects not provided for in this ZONING
AGREEMENT, the City of Newport Beach shall retain full rights to exercise its
police power to regulate the operation of residential care facilities on the
PROPERTIES provided such powers are applied consistently with the provisions of
state law and the terms of this ZONING AGREEMENT.
H. No Conflicting Enactments. During the term of this ZONING
AGREEMENT the City of Newport Beach shall not apply to the PROPERTIES any
City -adopted ordinance, policy, rule, regulation, or other measure relating to
operation of the FACILITIES to the extent it conflicts with this ZONING
AGREEMENT.
Reservations of Authority. Regardless of any provisions set forth in
this ZONING AGREEMENT to the contrary, the laws, rules, regulations, and official
policies set forth herein shall apply to and govern operations at the PROPERTIES
below in this section:
1.) Procedural Regulations. Then current procedural regulations
relating to hearing bodies, petitions, applications, notices,
findings, records, hearings, reports, recommendations,
Morningside Recovery, LLC Zoning Agreement
Exhibit A to Settlement Agreement
(L09-0011]-Zoning Agreement - Morningside - 10.09.02 Final
2.)
appeals, and any other matter of procedure shall apply to the
PROPERTY, provided that they are adopted and applied
Citywide.
Consistent City Regulations. Newport Beach City ordinances,
resolutions, regulations, and official policies governing
development and building that do not conflict with the ZONING
AGREEMENT, or where MORNINGSIDE has consented in
writing to the regulations, application to the PROPERTIES.
3.) Public Health and Safety. Any Newport Beach City ordinance,
regulation, rule, program, or official policy of general application
that is necessary to protect persons on the PROPERTIES or in
the immediate community from conditions dangerous to their
health or safety. The City of Newport Beach may unilaterally
enact any ordinance, regulation, rule, program, or official policy
of general application necessary to protect persons from
conditions dangerous to their health of safety.
J. No Agency. Neither PARTY is acting as the agent of the other in any
respect. Each PARTY is an independent contracting entity with respect to the
terms, covenants, and conditions contained in this ZONING AGREEMENT. This
ZONING AGREEMENT forms no partnership, joint venture, or other association of
any kind. The only relationship between the PARTIES is that of a government
entity regulating the operation of private property by the owner or lessee of the
property.
K. Effective Date. This ZONING AGREEMENT shall not become
effective, and except as set forth in subsection (1) of this Section, neither PARTY
shall have any rights or obligations hereunder, until the "Effective Date."
1.) This ZONING AGREEMENT shall become effective on:
a. The 91st day following the City Council of the City of
Newport Beach's passage of the ordinance approving this
ZONING AGREEMENT, or
b. If a referendum or other elective challenge to the
ordinance approving this ZONING AGREEMENT qualifies
for the ballot, then on the 31st day after the City Clerk of
the City of Newport Beach certifies that the referendum or
other elective challenge has failed to pass, or
Morningside Recovery, LLC Zoning Agreement
Exhibit A to Settlement Agreement
Q
(L09-0011J-Zoning Agreement - Morningside - 10.09.02 Final
6
c. If litigation is initiated to challenge this ZONING
AGREEMENT prior to the Effective Date established in
accordance with Section K (1) (a), and (b), above, then on
the 31 st day after the litigation has terminated, or the time
for appeal has expired, and the legal challenge has been
unsuccessful.
2.) The term of this ZONING AGREEMENT shall commence on
the Effective Date and shall expire at the conclusion of the 25th
year thereafter. However in no event shall the term of this
ZONING AGREEMENT exceed thirty (30) years after its
execution.
3.) Stay of Ordinance 2008-5 Pending Effective Date. Prior to the
effective date of the ordinance adopting this ZONING
AGREEMENT, or that date upon which it becomes clear that
there will be no Effective Date; whichever is later, the CITY
shall not otherwise enforce the provisions of Ordinance 2008-5
against MORNINGSIDE.
L. Amendment or Cancellation of the Zoning Agreement. Other than
modifications of this ZONING AGREEMENT under section I subsection (3) of this
ZONING AGREEMENT, this ZONING AGREEMENT may be amended or cancelled
in whole or in part only by mutual written and executed consent of the PARTIES in
compliance with California Government Code section 65868, and City of Newport
Beach Municipal Code section 15.45.070.
M. Enforcement. Unless amended or cancelled as provided in Section L,
above, or modified or suspended pursuant to California Government Code section
65869.5, this ZONING AGREEMENT is enforceable by either PARTY despite any
change in any applicable GENERAL PLAN or Specific Plan, zoning, subdivision, or
building regulation, or other applicable ordinance or regulation adopted by the City
(including by the City's electorate), that purports to apply to any or all of the
PROPERTIES.
N. Periodic Review of Compliance. CITY and MORNINGSIDE shall each
comply in good faith with the terms of this ZONING AGREEMENT. The PARTIES
shall review this ZONING AGREEMENT at least once every 12 months from the
Effective Date for good faith compliance with its terms, consistent with Government
Code sections 65865 and 65865.1 and City of Newport Beach Municipal Code
section 15.45.080. At the reviews, MORNINGSIDE shall document the current
status of its operations. MORNINGSIDE also agrees to furnish such evidence of
good faith compliance with this ZONING AGREEMENT as the CITY may require in
the reasonable exercise of its discretion, and after reasonable notice to
Morningside Recovery, LLC Zoning Agreement
Exhibit A to Settlement Agreement
[L09-0011]—Zoning Agreement - Morningside — 10.09.02 Final
MORNINGSIDE. On or before March 31st, June 30th. September 30th and
December 31st of each year during the term of this ZONING AGREEMENT,
MORNINGSIDE shall submit a Compliance Review Report, whose template is
attached hereto as Exhibit 3. The requirement of good faith compliance shall be
met upon the submittal to the CITY of an accurate Compliance Review Report,
signed by a principal of MORNINGSIDE certifying personally and on
MORNINGSIDE's behalf, demonstrating MORNINGSIDE's compliance with
operating conditions, facility locations and the number of CLIENTS and CLIENT
BEDS at each MORNINGSIDE FACILITY. The CITY, shall have the right to audit
the accuracy of the Compliance Review Report through on -site inspections of
MORNINGSIDE's FACILITIES, including its administrative headquarters, upon
reasonable notice to MORNINGSIDE and following the Inspection Protocol as
shown in Exhibit 4.
O. Events of Default and Remedies.
1.) Default by Morningside. Morningside's compliance with the
terms of this Agreement is subject to the following enforcement
provisions:
a. For Violations of the Operational Conditions: The City may,
at its sole discretion, follow its Administrative Citation
process (Newport Beach Municipal Code Chapter 1.05) to
remedy violations of the Operational Conditions until such
time as the City Council, at a noticed public hearing, deems
that Morningside is unable or unwilling to remedy the
violations and comply with the terms of this ZONING
AGREEMENT. At that point, subdivision (b) of this section
applies.
b. Pursuant to California Government Code section 65865.1, if
the CITY determines that MORNINGSIDE has not complied
in good faith with its obligations pursuant to this ZONING
AGREEMENT, the CITY shall by written notice to
MORNINGSIDE specify the manner in which
MORNINGSIDE has failed to comply and state the steps
MORNINGSIDE must take to bring itself into compliance. If
MORNINGSIDE does not commence efforts to achieve
compliance within thirty (30) days after receipt of written
notice from the CITY specifying the manner in which
MORNINGSIDE has failed to comply and diligently pursue
steps that achieve full compliance, then MORNINGSIDE
shall be deemed to be in default under the terms of this
ZONING AGREEMENT. The CITY may then seek available
Morningside Recovery, LLC Zoning Agreement
Exhibit A to Settlement Agreement
[1.09-0011]—Zoning Agreement - Morningside — 10.09.02 Final
8
remedies as provided in Government Code section
65865.1, subsections (3) and (4), below, and section G
above.
2.) Default by City. If the CITY has not complied with any of its
obligations and limitations under this ZONING AGREEMENT,
MORNINGSIDE shall by written notice to the CITY specify the
manner in which the CITY has failed to comply and state the
steps necessary for the CITY to bring itself into compliance. If
the CITY does not commence efforts to achieve compliance
within thirty (30) days after receipt of the written notice from
MORNINGSIDE specifying the manner in which the CITY has
failed to comply and diligently pursue steps that achieve full
compliance, then the CITY shall be deemed to be in default
under the terms of this ZONING AGREEMENT.
MORNINGSIDE may then seek specific performance or similar
equitable remedy as provided in subsection (3) of Section 0,
below.
3.) Specific Performance and Remedies. The PARTIES
acknowledge that remedies at law are generally inadequate
and that specific performance is appropriate for the
enforcement of this ZONING AGREEMENT. Except as
otherwise expressly provided in this section, the remedy of
specific performance or, in the alternative, a writ of mandate,
shall be the sole and exclusive remedy available to either
PARTY in the event of the default, or alleged default, by the
other.
4.) Recovery of Legal Expenses by Prevailing Party in Any Action.
In any judicial proceeding between the PARTIES that seeks to
enforce the provisions of this ZONING AGREEMENT, the
prevailing party shall recover all of its actual and reasonable
costs and expenses. These costs and expenses shall include
expert witness fees, attorneys' fees, and costs of investigation
and preparation before the initiation of the action. The right to
recover these costs and expenses shall accrue upon initiation
of the action.
P. Cooperation. Each PARTY covenants to take all reasonable actions
and execute all documents that may be necessary to achieve the purposes and
objectives of this ZONING AGREEMENT.
Morningside Recovery, LLC Zoning Agreement
Exhibit A to Settlement Agreement
1L09-0011J—Zoning Agreement - Morningside — 10.09.02 Final
Q. Force Maieure. Neither PARTY shall be deemed to be in default
where failure or delay in performance of any of its obligations under this ZONING
AGREEMENT is caused, through no fault of the PARTY whose performance is
prevented or delayed, by floods, earthquakes, other acts of God, fires, war, riots or
other hostilities, strikes or other labor hostilities, state or federal regulations, or court
actions.
R. Third Party Legal Challenge. If a third party brings a legal action
challenging the validity or enforceability of any provision of this ZONING
AGREEMENT or the applicable regulations or the manner in which the ordinance
approving this ZONING AGREEMENT was processed and approved, including the
application of the California Environmental Quality Act ("CEQA") to that process, the
PARTIES shall defend the third party challenge jointly, and each party shall be
responsible for its legal expenses incurred in connection with the challenge, except
that either or both parties may seek recovery of all legal expenses from the third
party challenger.
S. Estoppel Certificate. At any time, either PARTY may deliver written
notice to the other PARTY that the PARTY certify in writing that, to the best of its
knowledge:
1.) This ZONING AGREEMENT is in full force and effect and is
binding on the PARTY;
2.) This ZONING AGREEMENT has not been amended or
modified either orally or in writing. If this ZONING
AGREEMENT has been amended, the PARTY providing the
certification shall identify the amendments; and,
3.) The requesting PARTY is not in default in the performance of
its obligations under this ZONING AGREEMENT. If the
requesting PARTY is in default, the other PARTY must
describe the nature of the default.
The certifying PARTY shall execute and forward the certificate within sixty (60)
days following receipt of notice. Any assignee of a PARTY's rights and obligations
hereunder, as referred to in this Section, shall be entitled to rely on the certificate.
T. Further Actions and Instruments. Each PARTY shall cooperate with
and provide reasonable assistance to the other PARTY to the extent consistent with
and necessary to implement this ZONING AGREEMENT. Upon the request of a
PARTY at any time, the other PARTY shall promptly execute, with
acknowledgement or affidavit if reasonably required, and file or record the required
instruments and writings and take any actions as may be reasonably necessary to
Morningside Recovery, LLC Zoning Agreement
Exhibit A to Settlement Agreement
(L09-0011]—Zoning Agreement - Momingside — 10.09.02 Final
10
implement this ZONING AGREEMENT or to evidence or consummate the
transactions contemplated by this ZONING AGREEMENT.
U. Notices. Any notice or demand that shall be required or permitted by
law or any provision of this ZONING AGREEMENT shall be in writing. If the notice
or demand will be served upon a PARTY, it shall be personally served to the
PARTY; deposited in the U.S. Mail, certified, return receipt requested, and postage
prepaid; or delivered by a reliable courier service that provides a receipt showing
date and time of delivery with courier charges prepaid. The notice or demand shall
be addressed as follows:
To City:
With a copy to:
To Operator:
With a copy to:
City of Newport Beach
3300 Newport Boulevard
Post Office Box 1768
Newport Beach, California 92663-3884
Attn: City Manager
Fax: 949-644-3020
City Attorney
City of Newport Beach
3300 Newport Boulevard
Post Office Box 1768
Newport Beach, California 92663-3884
Morningside Recovery, LLC
3404 A Via Lido
Newport Beach, California 92663
(949) 675-0006
Mary Helen Beatificato
Beatificato & Associates, APC
28562 Oso Parkway, Ste. D-42
Rancho Santa Margarita, California 92688
Either PARTY may change the address stated in this Section by notice to the other
PARTY in the manner provided in this Section, and notices shall be addressed and
submitted to the new address. Notice shall be deemed to be delivered upon the
earlier of: (a) the date received; or (b) three business days after deposit in the mail
as provided above.
Morningside Recovery, LLC Zoning Agreement
Exhibit A to Settlement Agreement
[L09-0011] —Zoning Agreement - Morningside — 10.09.02 Final
11
V. Rules of Construction and Miscellaneous Terms.
1.) Rules of Construction. The singular includes the plural; the
masculine and neuter include the feminine; "shall" is
mandatory; "may" is permissive.
2.) Time is of the essence. Time is of the essence regarding each
provision of this ZONING AGREEMENT in which time is an
element.
3.) Waiver. Failure by a PARTY to insist upon the strict
performance of any of the provisions of this ZONING
AGREEMENT by the other PARTY, and failure by a PARTY to
exercise its rights upon a default by the other PARTY, shall not
constitute a waiver of that PARTY's right to demand strict
compliance by the other PARTY in the future.
4.) Counterparts. This ZONING AGREEMENT may be executed
in two or more counterparts, each of which shall be identical
and may be introduced in evidence or used for any other
purpose without any other counterpart, but all of which shall
together constitute one and the same ZONING AGREEMENT.
5.) Entire Agreement. Except for the Settlement Agreement, this
ZONING AGREEMENT constitutes the entire agreement and
supersedes all prior agreements and understandings, both
written and oral, between the PARTIES with respect to the
subject matter addressed in this ZONING AGREEMENT.
6.) Construction. This ZONING AGREEMENT has been drafted
after extensive negotiation and revision. Both the CITY and
MORNINGSIDE are sophisticated parties who were
represented by independent counsel throughout these
negotiations. The CITY and MORNINGSIDE each agree and
acknowledge that the terms of this ZONING AGREEMENT are
fair and reasonable, taking into account their respective
purposes, terms, and conditions. This ZONING AGREEMENT
shall therefore be construed as a whole consistent with its fair
meaning, and no principle or presumption of contract
construction or interpretation shall be used to construe the
whole or any part of this ZONING AGREEMENT in favor of, or
against, either PARTY.
Morningside Recovery, LLC Zoning Agreement
Exhibit A to Settlement Agreement
[L09-0011]—Zoning Agreement - Morningside — 10.09.02 Final
12
7.) No Third Party Beneficiaries. The only parties to this ZONING
AGREEMENT are the CITY and MORNINGSIDE. This
ZONING AGREEMENT does not involve any third party
beneficiaries, and it is not intended and shall not be construed
to benefit or to be enforceable by any other person or entity.
8.) Applicable Law and Venue. This ZONING AGREEMENT shall
be construed and enforced consistent with the internal laws of
the State of California. Any action arising under this ZONING
AGREEMENT or brought by any PARTY for the purpose of
enforcing, construing, or determining the validity of any
provision of this ZONING AGREEMENT shall be filed and tried
in the Superior Court of the County of Orange, State of
California, or the United States District Court for the Central
District of California. The PARTIES waive all provisions of law
providing for the removal or change of venue to any other
court.
9.) Section Headings. All section headings and subheadings are
inserted for convenience only and shall not affect construction
or interpretation of this ZONING AGREEMENT.
10.) Authority to Execute. The persons executing this ZONING
AGREEMENT warrant and represent that they have the
authority to execute this ZONING AGREEMENT on behalf of
the entity for which they are executing this ZONING
AGREEMENT. They further warrant and represent that they
have the authority to bind their respective PARTIES to the
performance of its obligations under the ZONING
AGREEMENT.
The agreement of the parties to the terms and conditions of this Zoning
Agreement is evidenced by the signatures below.
"CITY":
CITY OF NEWPORT BEACH
"MORNINGSIDE":
MORNINGSIDE RECOVERY, LLC
By: li By:
Keith D. Curry
Title: Mayor of Newport Beach
David Gates
Title: Chief Operating Officer
Morningside Recovery, LLC Zoning Agreement
Exhibit A to Settlement Agreement
(L09-0011)—Zoning Agreement - Momingside — 10.09.02 Final
13
APPROVED AS TO FORM:
David R. Hunt
Title: City Attorney
City of Newport Beach
ATTEST: (%
By: V1 �Vlq,.
Leilani Brown
Title: City Clerk
City of Newport Beach
relAPPL—
MORNINGSIDE RE VERY, LLC
By:
Candace
Title: Chief Executive Officer
APPROVED AS TO FORM:
By:
Mary Helen Beatificato
Title: Counsel for Morningside
Recovery, LLC
[End of Document and Signatures]
Morningside Recovery, LLC Zoning Agreement
Exhibit A to Settlement Agreement
1L09-0011J —Zoning Agreement - Momingside — 10.09.02 Final
14
EXHIBIT 1
Exhibit 1 to Zoning Agreement
City of Newport Beach
Morningside Recovery, LLC
EXHIBIT 1
OPERATIONAL CONDITIONS
for
MORNINGSIDE RECOVERY, LLC
1. Occupancy Level. The operator of Morningside Recovery, LLC, hereinafter
referred to as "Operator," is limited to a total of thirty-six (36) Clients and thirty six
(36) Client Beds in the City of Newport Beach, and shall limit occupancy of its
current facilities to the following:
a. 4823 A River Avenue — 6 Client and Client Bed maximum
b. 4823 B River Avenue — 6 Client and Client Bed maximum
c. 5015 A River Avenue — 6 Client and Client Bed maximum through
September 30, 2010 only
d. 5015 B River Avenue — 6 Client and Client Bed maximum through
September 30, 2010 only
e. 112 B 39th Street — 6 Client and Client Bed maximum
f. 29 Ima Loa Court — 6 Client and Client Bed maximum
g. 100 Via Antibes, 102 Via Antibes, and 208 Via Lido Soud — 12 Client
and Client Bed maximum, beginning September 1, 2010
The above occupancy levels reflect a maximum of thirty-six (36) Clients and
Client Beds citywide, with a maximum of thirty (30) Clients and Client Beds in the
Peninsula Zone. The Client counts are exclusive of one staff member who also
may reside at each facility. Morningside agrees to manage its Client populations
during September 2010 so that its Client count and Client Bed count do not
exceed thirty (30) within the Peninsula Zone.
The boundaries of the Peninsula Zone are more particularly defined and depicted
in Exhibit 2 of the corresponding Zoning Agreement. Operator may move
Clients from the above properties into other properties but must maintain the 30
Client and Client Bed cap in the Peninsula Zone and 36 total Client and Client
Bed cap citywide, provided that Operator maintains the dispersion standards in
Section III A, subsections 5 (a) & (b) of the Zoning Agreement.
2. Staffing. Operator shall have enough staff to appropriately and responsibly
manage each facility; including at least one qualified manager on -site or on -call
at all times (24 hours a day, seven days each week).
(L09-0011J Zoning Agreement - Momingside - Exhibit 1 10.08.04
11287-000711204428v3. doc
' 1
Exhibit 1 to Zoning Agreement
City of Newport Beach
Morningside Recovery, LLC
3. Governmental Referrals. Operator shall comply with the restrictions imposed by
Newport Beach Municipal Code Section 20.05.030 which limits the number of
parolees -probationers per residence with the additional limitation that Operator
shall not house any client (1) who is required to register as a sex
offender pursuant to Penal Code Sections 290, et seq.; or (2) who is required to
register as a criminal street gang member pursuant to Penal Code Sections
186.30 et seq.; or (3) whose housing or other costs of treatment are paid for by
the state in a funded Proposition 36 program.
4. Assembly Uses. Assembly uses are prohibited in these facilities, except those
that are limited solely to Client residents of the facility and facility staff (and in
some cases small meetings of a Client's family members with facility staff).
5. Medical Waste. Any and all medical waste generated through the operation of
the facility shall be disposed of in accordance with the City of Newport Beach's
Municipal Code, all other laws and best industry standards and practices.
6. Trash and Trash Enclosures. Operator shall comply with City code provisions
pertaining to trash enclosures, and if directed by the Planning Director, shall
secure and maintain commercial bin service at the subject properties. Operator
shall provide a sufficient number of plastic trash cans with sealable covers to
contain all of the refuse generated by the facility, which are to be used at all
times. Trash cans shall be put out for pick up no earlier than 7:00 p.m. and
before 8:00 p.m. on the evening before trash collection day, and shall be put
back within the property by 6:00 p.m. on the day of collection.
7. Smoking and Tobacco Products. Per NBMC Section 20.91A.050(A), no
Clients, guests, or any other users of the subject property may smoke in an area
from which the secondhand smoke may be detected on any parcel other than the
parcel upon which the use is located. Operator shall make good faith best efforts
to contain secondhand smoke generated by patients, Clients, customers, and
staff within the lot line of the subject property. In addition, Operator will not allow
Clients, staff, or residents to litter cigarette butts on the ground, floor, deck,
sidewalk, gutter, boardwalk or street. Operator's administrators and managers
shall actively enforce, on the City's behalf, the City's prohibition tobacco use on
beaches, boardwalks, and piers (NBMC §11.08.080). This includes any
meetings Morningside's Clients participate in "off -site."
8. Parking. Operator shall keep garages and other parking spaces at its facilities
clear, unobstructed and available for parking for staff, and visiting family
members' vehicles, cleaning persons' vehicles, and client transport vans at all
times. Clients to the facility are not permitted to have personal vehicles at the
facility.
[L09-0011] Zoning Agreement- Morningside - Exhibit 1 10.09.02
11287-0007\1204428v3.doc
Exhibit 1 to Zoning Agreement
City of Newport Beach
Morningside Recovery, LLC
9. Client Transport. Operator shall ensure that loading and unloading of
passengers of the facility's transportation van shall occur only in open parking
spaces or garage spaces. The van driver is prohibited from stopping or double-
parking in a traffic lane to load and unload passengers. In addition, client drivers
shall respect all City rules regarding parking and/or stopping and waiting to load
residents. Client transport vehicles shall not block adjacent alleys or street ends.
Client drivers shall not leave vehicles in reverse gear if reverse has an audible
back-up warning sound. Client drivers shall speak to residents at a level
protective of neighborhood peace, cognizant of the hour, to avoid waking
neighbors.
10. Profanity and Lewd Behavior. Operator shall not tolerate lewd behavior, lewd
speech, or profanity at the subject property. Profanity at a level audible to
neighboring residents may result in an administrative citation issued by the City
upon the property owner and operator or other enforcement action authorized
under the Zoning Agreement.
11. Noise. Operator shall strictly adhere to the City's noise standards (NBMC
§10.26.025; 10.26.030). Operator shall be responsible for minimizing clapping,
stomping, or other noises at meetings or gatherings at the subject property,
consistent with NBMC §10.26.030.
12. Quiet Hours. Operator shall enforce the Quiet Hours of 9:00 p.m. to 8:00 a.m.
daily to its patients, Clients and customers occupying beds in its facility. Quiet
means noise, including music, television, and voices, is not audible beyond the
perimeter of the facility except in a demonstrable emergency.
13. Route Plans. Operator shall adhere to the Route Plans for transport of its staff,
residents, clients, and customers. The Route Plans for all Morningside facilities
are attached hereto as Exhibit 5. Short-term interruptions, such as medical
emergencies or street maintenance beyond Operator's control, are allowable
modifications to the Route Plans.
14. Deliveries. Staff members in their private vehicles may deliver business
products and other packages and goods to the facility during weekdays between
the hours of 9:00 a.m. to 5:00 p.m.
15. Hotline. Operator shall establish, provide public notice of, and operate a hotline
for receiving inquiries and/or complaints in reference to its operation of its facility.
The phone number need not be staffed 24 hours a day seven days a week, but
callers should be responded to within the next 24-hour period. Alternatively, the
Operator shall provide area residents and the City with a contact name, phone
number, and e-mail address that is available 24 hours a day, seven days each
week. This contact shall be available to assist residents and the City with any
problems or concerns arising from the facility. E-mails or messages left for the
(L09-0011] Zoning Agreement — Momingside — Exhibit 1 10.09.02
11287-0007\1204428v3.doc
Exhibit 1 to Zoning Agreement
City of Newport Beach
Morningside Recovery, LLC
Operator's designated contact shall be returned promptly within a 24-hour period
from receipt.
16. Stakeholder Group. Upon invitation by the City, Operator shall participate in the
activities of any stakeholder committee or group established by the City to
address complaints and concerns of residents of the City regarding the operation
of Residential Care Facilities in the City.
17. Persons per Bedroom. Operator shall not allow more than two clients in one
bedroom unless the size of the structure warrants a larger occupancy for any
single bedroom.
18. Building and Zoning. Operator recognizes that each of its facilities have
specific setbacks from the side yards, front yard, and/or back yards per the City's
Building and Zoning Codes. Operator will keep these setbacks clear of
obstruction, including building obstruction. The orderly storage of trashcans is
acceptable in setbacks.
19. Facility Nuisances. The subject properties shall not be unsafe, unsightly or
poorly maintained. If Operator receives notice of a nuisance violation from the
City in regards to any of these issues, Operator shall correct the violation within
seven calendar days.
20. Beaches and Other Common Gathering Areas. Operator's use of the
beaches for meetings, prayer, conversation, or other gatherings shall show due
respect to non-resident visitors, residents, and other beachgoers, thus allowing
them to take full enjoyment of the beach. Operator shall not conduct business on
the beach (per NBMC §10.08.030).
21. Services to Facility's Clients or Residents. Operator will use industry's best
practices to ensure that the facility's clients or residents stay in recovery
(including scheduled substance testing, random substance testing, and required
counseling).
22. Federal, State and Local Laws. Operator shall comply with all federal, state,
and local laws. The issuance of this use permit shall not constitute a waiver of
the requirements of any federal, state or local law, including the requirements of
the California Building Code.
23. Affidavit of Disability. The Operator shall execute an affidavit declaring that all
clients receiving services from this facility are disabled persons, as that term is
defined by federal and state fair housing laws.
[L09-0011] Zoning Agreement - Morningside - Exhibit 1 10.09.02
11287-0007\1204428v3.doc
EXHIBIT 2
Exhibit 2
Depiction and Description of "Peninsula Zone"
Depiction of Peninsula Zone:
The lands within the yellow boundary as shown below.
Description of Peninsula Zone:
Starting at the mouth of the Santa Ana River:
• The land area southerly of the Newport and Seminouk Sloughs known as Newport Shores, and
• The land coastward of Pacific Coast Highway to Newport Boulevard known as Balboa Coves, West
Newport Beach, Lido Sands, and Newport Island; and
• The land southerly of a line extending along the Federal Navigational Channel between Newport
Boulevard and the Newport Harbor Jetty, known as the Balboa Peninsula, Lido Peninsula, Lido Isle,
Bay Island, and Cannery Village; and
• Southward on Newport Boulevard about 50 feet to Lower Newport Bay; and
• All lands southerly of Lower Newport Bay between Newport Boulevard down the Federal Navigational
Channel within the Lower Bay, inclusive of Lido Isle and Bay Island and inclusive of the Balboa
Peninsula.
[L 10-00111 10.16.14 Momingside — Zoning Agreement Exhibit 2 (Peninsula Zone)
EXHIBIT 3
Exhibit 3
Morningside Recovery
Quarterly Compliance Review Report
Date Report Submitted:
This form covers the 3-month period of
through
During the above period, Morningside Recovery managed or controlled the following facilities in
Newport Beach:
Morningside Recovery Facilities
Date of Report: September 30, 2010
Location
Peninsula
Zone?
Peninsula
Clients &
Client Beds
Off -Peninsula
Clients &
Client Beds
ADP
Licensed?
1. 4823 River Avenue - A
Y
6
N
2. 4823 River Avenue - B
Y
6
N
3. 100 Via Antibes
Y
4
N
4. 102 Via Antibes
Y
4
N
5. 208 Via Lido Soud
Y
4
N
6. 112 B 39th Street
Y
6
Y
7. 29 Ima Loa Court
N
6
N
Total:
30
6
Note: In the above chart, "Clients" are subject to the same numerical restrictions as
"Client Beds" in the Zoning Agreement. In other words, if Morningside is authorized to
house six Clients in a particular facility, then it is limited to an equal number of Client
Beds in that facility.
The Morningside Staff Member to join the City in any inspection of the above facilities
shall be: (e-mail: , phone #: )
By my signature below I certify and declare under the penalty of perjury under the laws
of the State of California, in my personal capacity and on behalf of Momingside
Recovery, LLC that Morningside Recovery has met all Operational Conditions as
[L09-0011]-Zoning Agreement— Momingside — Exh. 3— Quarterly Compliance Report— 10-08-04
Exhibit 3
Morningside Recovery
Quarterly Compliance Review Report
described in Exhibit 1 to the Zoning Agreement during the above Compliance Review
Period.
DATE [Name], [Title]
MORNINGSIDE RECOVERY, LLC
By
DATE [Name], [Title]
[L09-0011J-Zoning Agreement — Morningside — Exh. 3— Quarterly Compliance Report — 10-08-04
EXHIBIT 4
Exhibit 4
Inspection Protocol
The following protocol reflects the CITY's compliance review under Section N (Periodic Review
of Compliance) of the Zoning Agreement between Morningside Recovery and the City of
Newport Beach.
1. On or before March 31, June 30, September 30 and December 31 of each year,
Morningside shall submit to the City's code enforcement division ("CED") the Compliance
Review Report ("Report") shown in Exhibit 3 to the Zoning Agreement. At the same time,
Morningside shall also submit the name, phone number, and e-mail of the Morningside staff
member that Morningside designates to join any inspection ("Morningside Staff Member").
2. On a quarterly basis, CED shall submit the list of Morningside facilities to the Police
Department for verification that no persons known to have been referred to Morningside by
the government (such as parolees) in violation of the Zoning Agreement live at any of the
facilities.
3. On a quarterly basis, CED shall select up to two (2) facilities on the list to verify the Client
count and Client Bed count through an onsite inspection during a weekday. CED and
Morningside shall endeavor to schedule this inspection at a time when Clients are present.
4. CED shall notify the Morningside Staff Member by e-mail and telephone of the time of the
inspection and which facilities will be inspected. Such notification will occur a reasonable
amount of time prior to the inspection, generally four (4) but not less than two (2) hours prior
to inspection.
5. While inspecting each facility, CED staff shall not obtain Client names nor take photos of
Clients and shall be respectful at all times of Client privacy. CED staff shall count Clients or
Client Beds and verify that the Client and Client Bed Count at each facility match those on
the report submitted by Morningside.
6. An inspection report shall be made for each facility.
7. All inspection reports shall be submitted to the Planning Department for inclusion in the
City's annual review of Morningside's compliance with the Zoning Agreement.
fL09-0011)10-16-14 Morningside - Zoning Agreement Exhibit (Inspection Protocol)
EXHIBIT 5
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Contract C-4532(A)
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(EXHIBIT A)
ZONING IMPLEMENTATION
AND PUBLIC BENEFIT AGREEMENT
(Pursuant to California Government Code §§ 65864-65869.5)
This Zoning Implementation and Public Benefit Agreement (the "ZONING
AGREEMENT") is entered into on d'0E2 fl , 2010, by and between the CITY
OF NEWPORT BEACH, a charter city ("CITY") on the one hand, and
MORNINGSIDE RECOVERY, LLC, ("MORNINGSIDE") on the other. The CITY
and MORNINGSIDE are collectively referred to as the "PARTIES."
Recitals
A. The City Council hereby finds this ZONING AGREEMENT is
consistent with the provisions of California Government Code §65867, the City of
Newport Beach Municipal Code Chapter 15.45, and the City's General Plan.
B. On June 3, 2010, the City's Planning Commission held a public
hearing on this ZONING AGREEMENT, made findings and determinations with
respect to this ZONING AGREEMENT, and recommended to the City Council that
the City Council approve this ZONING AGREEMENT.
C. On September 14, 2010, the City Council also held a public hearing
on this ZONING AGREEMENT and considered the Planning Commission's
recommendations and testimony and information submitted by City staff,
MORNINGSIDE, and members of the public. On September 28, 2010, pursuant to
applicable state law (California Government Code §§ 65864-65869.5) and local law
(City of Newport Beach Municipal Code Chapter 15.45), the City Council passed its
Ordinance No. Flo- l0 finding this ZONING AGREEMENT to be consistent with
the City of Newport Beach General Plan and approving this ZONING
AGREEMENT.
II.
Definitions
The following terms when used in this ZONING AGREEMENT shall have the
meanings set forth below:
A. "BLOCK" shall mean an area that is bounded on all sides by streets. In
the Peninsula Zone, a BLOCK length is 617 feet, which is the calculable median
block length within the City of Newport Beach's Nonstandard Subdivision Areas.
B. "CITY" shall mean the City of Newport Beach and its City Council.
[L09-0011J—Zoning Agreement - Momingside — 10.09.02 Final
C. "CLIENT" (or "CLIENTS") shall mean any persons residing at any
MORNINGSIDE FACILITY for the purpose of recovering from drug and/or alcohol
abuse.
D. "CLIENT BEDS" shall mean physical accommodations in each Facility
where Clients sleep or otherwise overnight.
E. "CONTROL" (including the terms "controlling," "controlled by," and "under
common control with,") shall mean the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of a person, whether
through the ownership of voting securities, by contract, or otherwise.
F. "FACILITY" (or "FACILITIES") is a residential unit used or occupied by
persons in recovery from alcoholism and/or drug abuse. Facilities may be "licensed
facilities" or unlicensed "sober living homes." As used in this AGREEMENT, all
facilities constitute "residential care facility" uses within the context of the City's
zoning ordinance.
G. "GENERAL PLAN" shall mean the 2006 General Plan adopted by the
City Council on July 25, 2006, by Resolution No. 2006-76 as periodically amended.
The Land Use Plan of the Land Use Element of the General Plan was approved by
Newport Beach voters in a general election on November 7, 2006.
H. "LICENSED FACILITIES" shall mean alcoholism and drug abuse
recovery facilities licensed by the California Department of Alcohol and Drug
Programs ("ADP").
I. "PARTY" or "PARTIES" shall mean either the CITY or MORNINGSIDE
or any of MORNINGSIDE's affiliates or both, as determined by the context.
J. "PROPERTY" or "PROPERTIES" shall mean MORNINGSIDE's
facilities at 4823 A River Avenue and 4823 B River Avenue; 112 B 39th Street; 5015
A River Avenue and 5015 B River Avenue until September 30, 2010; 100 Via
Antibes, 102 Via Antibes and 208 Via Lido Soud beginning September 1, 2010; and
29 !ma Loa Court in Newport Beach. Additionally, this ZONING AGREEMENT shall
apply to parcels not yet identified upon which MORNINGSIDE may operate facilities
within CITY in the future.
K. "SOBER LIVING HOMES" shall mean alcoholism and/or drug abuse
recovery facilities that are not licensed by the ADP.
L. "7-and-OVER" shall mean any FACILITY licensed by the ADP to
house more than 7 persons in recovery for drug and/or alcohol abuse.
Morningside Recovery, LLC Zoning Agreement
Exhibit A to Settlement Agreement
[L09-0011]—Zoning Agreement - Morningside — 10.09.02 Final
ul.
Agreement
A. Terms of Agreement. This ZONING AGREEMENT allows
MORNINGSIDE a vested right to the following:
1.)
MORNINGSIDE may operate FACILITIES with up to thirty-six
(36) CLIENTS and thirty-six (36) CLIENT BEDS in Newport
Beach pursuant to certain operational guidelines described
more particularly in Exhibit 1 attached hereto. Except as
described in Section A (3), below, MORNINGSIDE may not
exceed 36 CLIENTS and 36 CLIENT BEDS in Newport Beach.
2.) MORNINGSIDE may house up to 30 of its 36 total CLIENTS
and have up to 30 of its CLIENT BEDS in the Newport Beach
"Peninsula Zone." The Peninsula Zone is more particularly
defined in Exhibit 2 attached hereto;
3.) MORNINGSIDE can exceed its 36 CLIENT and 36 CLIENT
BED maximum only by acquiring 7-and-OVER FACILITIES that
have obtained use permits under Chapter 20.91A of the
Newport Beach Municipal Code.
4.) MORNINGSIDE shall conduct its operations in Newport Beach
in conformance with the Operational Conditions attached
hereto as Exhibit 1.
5.) MORNINGSIDE will comply with the following dispersal and
distancing requirements for its FACILITIES in Newport Beach:
a. Only one (1) treatment home or sober living facility (licensed
or unlicensed by ADP) is allowed per BLOCK, and no
FACILITIES facing each other;
b. No FACILITIES (licensed or unlicensed by ADP) within
1,000 feet of public elementary schools or large, state -
licensed day-care facilities.
B. Significant Public Benefits. The significant public benefits that this
ZONING AGREEMENT provides include, but are not limited to, the following:
1.) Settlement and avoidance of litigation costs, including the
continued expenditure of attorneys' fees;
Morningside Recovery, LLC Zoning Agreement
Exhibit A to Settlement Agreement
[L09-0011] —Zoning Agreement - Morningside — 10.09.02 Final
3
2.) Preservation of the regulatory ordinance that was the subject
matter of this lawsuit;
3.) Avoidance of potential federal administrative proceedings;
4.) A reduction and limitation on the size of a residential care
operation in Newport Beach, including a limitation on
LICENSED FACILITIES;
5.) Dispersal of LICENSED FACILITIES and SOBER LIVING
HOMES to reduce the concentration thereof in the City's
residential districts;
6.) The placement of operational controls on said FACILITIES to
reduce the perceived negative impacts on the City's residential
neighborhoods;
C. General Plan Consistency and Zoning Implementation. This ZONING
AGREEMENT and the regulations applied herein to MORNINGSIDE will cause the
City of Newport Beach's zoning and other land use regulations to remain consistent
with the GENERAL PLAN.
D. Warranties and Representations. Both PARTIES represent they have
legal authority to enter into this ZONING AGREEMENT and the remainder of the
agreements and documents that comprise the settlement documents herein, and
that the necessary authorizations have been obtained, by resolution or other action,
and that the persons whose names appear as signatories below were authorized to
accept this ZONING AGREEMENT on behalf of the PARTY under whose name
they signed.
1.)
Each PARTY specifically represents and warrants that it has
the legal authority to enter into a ZONING AGREEMENT of the
type and kind herein, and,
2.) The City of Newport Beach represents and warrants that this
ZONING AGREEMENT and the regulations applied to
PROPERTY are:
a. Consistent with the GENERAL PLAN for the City of Newport
Beach and any Specific Plans that apply to the area in
which any portion of MORNINGSIDE's PROPERTIES are
located, and;
Morningside Recovery, LLC Zoning Agreement
Exhibit A to Settlement Agreement
[L09-00111—Zoning Agreement - Morningside— 10.09.02 Final
b. Consistent with the Local Coastal Land Use Plan ("CLUP")
for the City of Newport Beach and that the CLUP has been
approved by the California Coastal Commission.
E. Operation of Property; Applicable Regulations. Other than as
expressly set forth in this ZONING AGREEMENT, the terms and conditions
concerning the operation of the PROPERTIES, including but not limited to the
permitted uses, density, intensity of use, and the location of buildings involved, shall
be those set forth in the City of Newport Beach's ordinances and regulations. The
City of Newport Beach shall not prevent operation of the PROPERTIES in
compliance with the applicable regulations and all other applicable laws and
regulations in Section I, below.
F. Vested Rights. During the term of this ZONING AGREEMENT,
except to the extent the City of Newport Beach reserves its discretion as expressly
set forth in this ZONING AGREEMENT or in the applicable regulations and all other
applicable laws and regulations specified in Section I, MORNINGSIDE shall have
the vested right, within the limits and constraints of the applicable regulations, to
conduct operations of LICENSED FACILITIES and SOBER LIVING HOMES at its
PROPERTIES. In the event Ordinance 2008-5 is repealed by action of the City
Council of the City of Newport Beach or the electorate, or if a court of competent
jurisdiction declares the Ordinance invalid or unenforceable, this ZONING
AGREEMENT shall remain in full force and effect.
G. Police Power. In all respects not provided for in this ZONING
AGREEMENT, the City of Newport Beach shall retain full rights to exercise its
police power to regulate the operation of residential care facilities on the
PROPERTIES provided such powers are applied consistently with the provisions of
state law and the terms of this ZONING AGREEMENT.
H. No Conflicting Enactments. During the term of this ZONING
AGREEMENT the City of Newport Beach shall not apply to the PROPERTIES any
City -adopted ordinance, policy, rule, regulation, or other measure relating to
operation of the FACILITIES to the extent it conflicts with this ZONING
AGREEMENT.
Reservations of Authority. Regardless of any provisions set forth in
this ZONING AGREEMENT to the contrary, the laws, rules, regulations, and official
policies set forth herein shall apply to and govern operations at the PROPERTIES
below in this section:
1.) Procedural Regulations. Then current procedural regulations
relating to hearing bodies, petitions, applications, notices,
findings, records, hearings, reports, recommendations,
Morningside Recovery, LLC Zoning Agreement
Exhibit A to Settlement Agreement
(L09-0011]-Zoning Agreement - Momingside - 10.09.02 Final
5
appeals, and any other matter of procedure shall apply to the
PROPERTY, provided that they are adopted and applied
Citywide.
2.) Consistent City Regulations. Newport Beach City ordinances,
resolutions, regulations, and official policies governing
development and building that do not conflict with the ZONING
AGREEMENT, or where MORNINGSIDE has consented in
writing to the regulations, application to the PROPERTIES.
3.) Public Health and Safety. Any Newport Beach City ordinance,
regulation, rule, program, or official policy of general application
that is necessary to protect persons on the PROPERTIES or in
the immediate community from conditions dangerous to their
health or safety. The City of Newport Beach may unilaterally
enact any ordinance, regulation, rule, program, or official policy
of general application necessary to protect persons from
conditions dangerous to their health of safety.
J. No Agency. Neither PARTY is acting as the agent of the other in any
respect. Each PARTY is an independent contracting entity with respect to the
terms, covenants, and conditions contained in this ZONING AGREEMENT. This
ZONING AGREEMENT forms no partnership, joint venture, or other association of
any kind. The only relationship between the PARTIES is that of a government
entity regulating the operation of private property by the owner or lessee of the
property.
K. Effective Date. This ZONING AGREEMENT shall not become
effective, and except as set forth in subsection (1) of this Section, neither PARTY
shall have any rights or obligations hereunder, until the "Effective Date."
1.) This ZONING AGREEMENT shall become effective on:
a. The 91st day following the City Council of the City of
Newport Beach's passage of the ordinance approving this
ZONING AGREEMENT, or
b. If a referendum or other elective challenge to the
ordinance approving this ZONING AGREEMENT qualifies
for the ballot, then on the 31st day after the City Clerk of
the City of Newport Beach certifies that the referendum or
other elective challenge has failed to pass, or
Morningside Recovery, LLC Zoning Agreement
Exhibit A to Settlement Agreement
[L09-0011]-Zoning Agreement - Morningside — 10.09.02 Final
6
c. If litigation is initiated to challenge this ZONING
AGREEMENT prior to the Effective Date established in
accordance with Section K (1) (a), and (b), above, then on
the 31st day after the litigation has terminated, or the time
for appeal has expired, and the legal challenge has been
unsuccessful.
2.) The term of this ZONING AGREEMENT shall commence on
the Effective Date and shall expire at the conclusion of the 25th
year thereafter. However in no event shall the term of this
ZONING AGREEMENT exceed thirty (30) years after its
execution.
3.) Stay of Ordinance 2008-5 Pending Effective Date. Prior to the
effective date of the ordinance adopting this ZONING
AGREEMENT, or that date upon which it becomes clear that
there will be no Effective Date; whichever is later, the CITY
shall not otherwise enforce the provisions of Ordinance 2008-5
against MORNINGSIDE.
L. Amendment or Cancellation of the Zoning Agreement. Other than
modifications of this ZONING AGREEMENT under section I subsection (3) of this
ZONING AGREEMENT, this ZONING AGREEMENT may be amended or cancelled
in whole or in part only by mutual written and executed consent of the PARTIES in
compliance with California Government Code section 65868, and City of Newport
Beach Municipal Code section 15.45.070.
M. Enforcement. Unless amended or cancelled as provided in Section L,
above, or modified or suspended pursuant to California Government Code section
65869.5, this ZONING AGREEMENT is enforceable by either PARTY despite any
change in any applicable GENERAL PLAN or Specific Plan, zoning, subdivision, or
building regulation, or other applicable ordinance or regulation adopted by the City
(including by the City's electorate), that purports to apply to any or all of the
PROPERTIES.
N. Periodic Review of Compliance. CITY and MORNINGSIDE shall each
comply in good faith with the terms of this ZONING AGREEMENT. The PARTIES
shall review this ZONING AGREEMENT at least once every 12 months from the
Effective Date for good faith compliance with its terms, consistent with Government
Code sections 65865 and 65865.1 and City of Newport Beach Municipal Code
section 15.45.080. At the reviews, MORNINGSIDE shall document the current
status of its operations. MORNINGSIDE also agrees to furnish such evidence of
good faith compliance with this ZONING AGREEMENT as the CITY may require in
the reasonable exercise of its discretion, and after reasonable notice to
Morningside Recovery, LLC Zoning Agreement
Exhibit A to Settlement Agreement
[L09-0011] -Zoning Agreement - Morningside - 10.09.02 Final
7
MORNINGSIDE. On or before March 31st, June 30th, September 30th and
December 31st of each year during the term of this ZONING AGREEMENT,
MORNINGSIDE shall submit a Compliance Review Report, whose template is
attached hereto as Exhibit 3. The requirement of good faith compliance shall be
met upon the submittal to the CITY of an accurate Compliance Review Report,
signed by a principal of MORNINGSIDE certifying personally and on
MORNINGSIDE's behalf, demonstrating MORNINGSIDE's compliance with
operating conditions, facility locations and the number of CLIENTS and CLIENT
BEDS at each MORNINGSIDE FACILITY. The CITY, shall have the right to audit
the accuracy of the Compliance Review Report through on -site inspections of
MORNINGSIDE's FACILITIES, including its administrative headquarters, upon
reasonable notice to MORNINGSIDE and following the Inspection Protocol as
shown in Exhibit 4.
O. Events of Default and Remedies.
1.) Default by Morningside. Morningside's compliance with the
terms of this Agreement is subject to the following enforcement
provisions:
a. For Violations of the Operational Conditions: The City may,
at its sole discretion, follow its Administrative Citation
process (Newport Beach Municipal Code Chapter 1.05) to
remedy violations of the Operational Conditions until such
time as the City Council, at a noticed public hearing, deems
that Morningside is unable or unwilling to remedy the
violations and comply with the terms of this ZONING
AGREEMENT. At that point, subdivision (b) of this section
applies.
b. Pursuant to California Government Code section 65865.1, if
the CITY determines that MORNINGSIDE has not complied
in good faith with its obligations pursuant to this ZONING
AGREEMENT, the CITY shall by written notice to
MORNINGSIDE specify the manner in which
MORNINGSIDE has failed to comply and state the steps
MORNINGSIDE must take to bring itself into compliance. If
MORNINGSIDE does not commence efforts to achieve
compliance within thirty (30) days after receipt of written
notice from the CITY specifying the manner in which
MORNINGSIDE has failed to comply and diligently pursue
steps that achieve full compliance, then MORNINGSIDE
shall be deemed to be in default under the terms of this
ZONING AGREEMENT. The CITY may then seek available
Morningside Recovery, LLC Zoning Agreement
Exhibit A to Settlement Agreement
(L09-0011J -Zoning Agreement - Morningside - 10.09.02 Final
remedies as provided in Government Code section
65865.1, subsections (3) and (4), below, and section G
above.
2.) Default by City. If the CITY has not complied with any of its
obligations and limitations under this ZONING AGREEMENT,
MORNINGSIDE shall by written notice to the CITY specify the
manner in which the CITY has failed to comply and state the
steps necessary for the CITY to bring itself into compliance. If
the CITY does not commence efforts to achieve compliance
within thirty (30) days after receipt of the written notice from
MORNINGSIDE specifying the manner in which the CITY has
failed to comply and diligently pursue steps that achieve full
compliance, then the CITY shall be deemed to be in default
under the terms of this ZONING AGREEMENT.
MORNINGSIDE may then seek specific performance or similar
equitable remedy as provided in subsection (3) of Section 0,
below.
3.) Specific Performance and Remedies. The PARTIES
acknowledge that remedies at law are generally inadequate
and that specific performance is appropriate for the
enforcement of this ZONING AGREEMENT. Except as
otherwise expressly provided in this section, the remedy of
specific performance or, in the alternative, a writ of mandate,
shall be the sole and exclusive remedy available to either
PARTY in the event of the default, or alleged default, by the
other.
4.) Recovery of Legal Expenses by Prevailing Party in Any Action.
In any judicial proceeding between the PARTIES that seeks to
enforce the provisions of this ZONING AGREEMENT, the
prevailing party shall recover all of its actual and reasonable
costs and expenses. These costs and expenses shall include
expert witness fees, attorneys' fees, and costs of investigation
and preparation before the initiation of the action. The right to
recover these costs and expenses shall accrue upon initiation
of the action.
P. Cooperation. Each PARTY covenants to take all reasonable actions
and execute all documents that may be necessary to achieve the purposes and
objectives of this ZONING AGREEMENT.
Morningside Recovery, LLC Zoning Agreement
Exhibit A to Settlement Agreement
(L09-0011]—Zoning Agreement - Momingside — 10.09.02 Final
Q. Force Maieure. Neither PARTY shall be deemed to be in default
where failure or delay in performance of any of its obligations under this ZONING
AGREEMENT is caused, through no fault of the PARTY whose performance is
prevented or delayed, by floods, earthquakes, other acts of God, fires, war, riots or
other hostilities, strikes or other labor hostilities, state or federal regulations, or court
actions.
R. Third Party Legal Challenge. If a third party brings a legal action
challenging the validity or enforceability of any provision of this ZONING
AGREEMENT or the applicable regulations or the manner in which the ordinance
approving this ZONING AGREEMENT was processed and approved, including the
application of the California Environmental Quality Act ("CEQA") to that process, the
PARTIES shall defend the third party challenge jointly, and each party shall be
responsible for its legal expenses incurred in connection with the challenge, except
that either or both parties may seek recovery of all legal expenses from the third
party challenger.
S. Estoppel Certificate. At any time, either PARTY may deliver written
notice to the other PARTY that the PARTY certify in writing that, to the best of its
knowledge:
1.) This ZONING AGREEMENT is in full force and effect and is
binding on the PARTY;
2.) This ZONING AGREEMENT has not been amended or
modified either orally or in writing. If this ZONING
AGREEMENT has been amended, the PARTY providing the
certification shall identify the amendments; and,
3.) The requesting PARTY is not in default in the performance of
its obligations under this ZONING AGREEMENT. If the
requesting PARTY is in default, the other PARTY must
describe the nature of the default.
The certifying PARTY shall execute and forward the certificate within sixty (60)
days following receipt of notice. Any assignee of a PARTY's rights and obligations
hereunder, as referred to in this Section, shall be entitled to rely on the certificate.
T. Further Actions and Instruments. Each PARTY shall cooperate with
and provide reasonable assistance to the other PARTY to the extent consistent with
and necessary to implement this ZONING AGREEMENT. Upon the request of a
PARTY at any time, the other PARTY shall promptly execute, with
acknowledgement or affidavit if reasonably required, and file or record the required
instruments and writings and take any actions as may be reasonably necessary to
Morningside Recovery, LLC Zoning Agreement
Exhibit A to Settlement Agreement
[L09-0011J —Zoning Agreement - Morningside — 10.09.02 Final
10
implement this ZONING AGREEMENT or to evidence or consummate the
transactions contemplated by this ZONING AGREEMENT.
U. Notices. Any notice or demand that shall be required or permitted by
law or any provision of this ZONING AGREEMENT shall be in writing. If the notice
or demand will be served upon a PARTY, it shall be personally served to the
PARTY; deposited in the U.S. Mail, certified, return receipt requested, and postage
prepaid; or delivered by a reliable courier service that provides a receipt showing
date and time of delivery with courier charges prepaid. The notice or demand shall
be addressed as follows:
To City:
With a copy to:
To Operator:
With a copy to:
City of Newport Beach
3300 Newport Boulevard
Post Office Box 1768
Newport Beach, California 92663-3884
Attn: City Manager
Fax: 949-644-3020
City Attorney
City of Newport Beach
3300 Newport Boulevard
Post Office Box 1768
Newport Beach, California 92663-3884
Morningside Recovery, LLC
3404 A Via Lido
Newport Beach, Califomia 92663
(949) 675-0006
Mary Helen Beatificato
Beatificato & Associates, APC
28562 Oso Parkway, Ste. D-42
Rancho Santa Margarita, California 92688
Either PARTY may change the address stated in this Section by notice to the other
PARTY in the manner provided in this Section, and notices shall be addressed and
submitted to the new address. Notice shall be deemed to be delivered upon the
earlier of: (a) the date received; or (b) three business days after deposit in the mail
as provided above.
Morningside Recovery, LLC Zoning Agreement
Exhibit A to Settlement Agreement
[L09-00111—Zoning Agreement - Momingside — 10.09.02 Final
11
V. Rules of Construction and Miscellaneous Terms.
1.) Rules of Construction. The singular includes the plural; the
masculine and neuter include the feminine; "shall" is
mandatory; "may" is permissive.
2.) Time is of the essence. Time is of the essence regarding each
provision of this ZONING AGREEMENT in which time is an
element.
3.) Waiver. Failure by a PARTY to insist upon the strict
performance of any of the provisions of this ZONING
AGREEMENT by the other PARTY, and failure by a PARTY to
exercise its rights upon a default by the other PARTY, shall not
constitute a waiver of that PARTY's right to demand strict
compliance by the other PARTY in the future.
4.) Counterparts. This ZONING AGREEMENT may be executed
in two or more counterparts, each of which shall be identical
and may be introduced in evidence or used for any other
purpose without any other counterpart, but all of which shall
together constitute one and the same ZONING AGREEMENT.
5.) Entire Agreement. Except for the Settlement Agreement, this
ZONING AGREEMENT constitutes the entire agreement and
supersedes all prior agreements and understandings, both
written and oral, between the PARTIES with respect to the
subject matter addressed in this ZONING AGREEMENT.
6.) Construction. This ZONING AGREEMENT has been drafted
after extensive negotiation and revision. Both the CITY and
MORNINGSIDE are sophisticated parties who were
represented by independent counsel throughout these
negotiations. The CITY and MORNINGSIDE each agree and
acknowledge that the terms of this ZONING AGREEMENT are
fair and reasonable, taking into account their respective
purposes, terms, and conditions. This ZONING AGREEMENT
shall therefore be construed as a whole consistent with its fair
meaning, and no principle or presumption of contract
construction or interpretation shall be used to construe the
whole or any part of this ZONING AGREEMENT in favor of, or
against, either PARTY.
Morningside Recovery, LLC Zoning Agreement
Exhibit A to Settlement Agreement
[L09-0011] -Zoning Agreement - Morningside — 10.09.02 Final
12
7.)
No Third Party Beneficiaries. The only parties to this ZONING
AGREEMENT are the CITY and MORNINGSIDE. This
ZONING AGREEMENT does not involve any third party
beneficiaries, and it is not intended and shall not be construed
to benefit or to be enforceable by any other person or entity.
8.) Applicable Law and Venue. This ZONING AGREEMENT shall
be construed and enforced consistent with the internal laws of
the State of California. Any action arising under this ZONING
AGREEMENT or brought by any PARTY for the purpose of
enforcing, construing, or determining the validity of any
provision of this ZONING AGREEMENT shall be filed and tried
in the Superior Court of the County of Orange, State of
California, or the United States District Court for the Central
District of California. The PARTIES waive all provisions of law
providing for the removal or change of venue to any other
court.
9.) Section Headings. All section headings and subheadings are
inserted for convenience only and shall not affect construction
or interpretation of this ZONING AGREEMENT.
10.) Authority to Execute. The persons executing this ZONING
AGREEMENT warrant and represent that they have the
authority to execute this ZONING AGREEMENT on behalf of
the entity for which they are executing this ZONING
AGREEMENT. They further warrant and represent that they
have the authority to bind their respective PARTIES to the
performance of its obligations under the ZONING
AGREEMENT.
The agreement of the parties to the terms and conditions of this Zoning
Agreement is evidenced by the signatures below.
"CITY":
CITY OF NEWPORT BEACH
"MORNINGSIDE":
MORNINGSIDE RECOVERY, LLC
By:
Keith D. Curry David Gates
Title: Mayor of Newport Beach
Title: Chief Operating Officer
Morningside Recovery, LLC Zoning Agreement
Exhibit A to Settlement Agreement
[L09-00111 —Zoning Agreement - Momingside — 10.09.02 Final
13
APPROVED AS TO FORM:
David R. Hunt
Title: City Attorney
City of Newport Beach
ATTEST:
By: � MM 9
Leilani Brown
Title: City Clerk
City of Newport Beach
MORNINGSIDE RE VERY, LLC
By:
Candace
Title: Chief Executive Officer
APPROVED AS TO FORM:
By: ttl�aivi
Mary Helen Beatificato
Title: Counsel for Morningside
Recovery, LLC
T'v
[End of Document and Signatures]
Morningside Recovery, LLC Zoning Agreement
Exhibit A to Settlement Agreement
[L09-0011] -Zoning Agreement - Momingside - 10.09.02 Final
14
EXHIBIT 1
Exhibit 1 to Zoning Agreement
City of Newport Beach
Morningside Recovery, LLC
EXHIBIT 1
OPERATIONAL CONDITIONS
for
MORNINGSIDE RECOVERY, LLC
1. Occupancy Level. The operator of Morningside Recovery, LLC, hereinafter
referred to as "Operator," is limited to a total of thirty-six (36) Clients and thirty six
(36) Client Beds in the City of Newport Beach, and shall limit occupancy of its
current facilities to the following:
a. 4823 A River Avenue — 6 Client and Client Bed maximum
b. 4823 B River Avenue — 6 Client and Client Bed maximum
c. 5015 A River Avenue — 6 Client and Client Bed maximum through
September 30, 2010 only
d. 5015 B River Avenue — 6 Client and Client Bed maximum through
September 30, 2010 only
e. 112 B 39th Street — 6 Client and Client Bed maximum
f. 29 lma Loa Court — 6 Client and Client Bed maximum
g•
100 Via Antibes, 102 Via Antibes, and 208 Via Lido Soud — 12 Client
and Client Bed maximum, beginning September 1, 2010
The above occupancy levels reflect a maximum of thirty-six (36) Clients and
Client Beds citywide, with a maximum of thirty (30) Clients and Client Beds in the
Peninsula Zone. The Client counts are exclusive of one staff member who also
may reside at each facility. Morningside agrees to manage its Client populations
during September 2010 so that its Client count and Client Bed count do not
exceed thirty (30) within the Peninsula Zone.
The boundaries of the Peninsula Zone are more particularly defined and depicted
in Exhibit 2 of the corresponding Zoning Agreement. Operator may move
Clients from the above properties into other properties but must maintain the 30
Client and Client Bed cap in the Peninsula Zone and 36 total Client and Client
Bed cap citywide, provided that Operator maintains the dispersion standards in
Section III A, subsections 5 (a) & (b) of the Zoning Agreement.
2. Staffing. Operator shall have enough staff to appropriately and responsibly
manage each facility; including at least one qualified manager on -site or on -call
at all times (24 hours a day, seven days each week).
(L09-00111 Zoning Agreement — Momingside — Exhibit 1 10.08.04
11287-000711204428v3.doc
Exhibit 1 to Zoning Agreement
City of Newport Beach
Morningside Recovery, LLC
3. Governmental Referrals. Operator shall comply with the restrictions imposed by
Newport Beach Municipal Code Section 20.05.030 which limits the number of
parolees -probationers per residence with the additional limitation that Operator
shall not house any client (1) who is required to register as a sex
offender pursuant to Penal Code Sections 290, et seq.; or (2) who is required to
register as a criminal street gang member pursuant to Penal Code Sections
186.30 et seq.; or (3) whose housing or other costs of treatment are paid for by
the state in a funded Proposition 36 program.
4. Assembly Uses. Assembly uses are prohibited in these facilities, except those
that are limited solely to Client residents of the facility and facility staff (and in
some cases small meetings of a Client's family members with facility staff).
5. Medical Waste. Any and all medical waste generated through the operation of
the facility shall be disposed of in accordance with the City of Newport Beach's
Municipal Code, all other laws and best industry standards and practices.
6. Trash and Trash Enclosures. Operator shall comply with City code provisions
pertaining to trash enclosures, and if directed by the Planning Director, shall
secure and maintain commercial bin service at the subject properties. Operator
shall provide a sufficient number of plastic trash cans with sealable covers to
contain all of the refuse generated by the facility, which are to be used at all
times. Trash cans shall be put out for pick up no earlier than 7:00 p.m. and
before 8:00 p.m. on the evening before trash collection day, and shall be put
back within the property by 6:00 p.m. on the day of collection.
7. Smoking and Tobacco Products. Per NBMC Section 20.91A.050(A), no
Clients, guests, or any other users of the subject property may smoke in an area
from which the secondhand smoke may be detected on any parcel other than the
parcel upon which the use is located. Operator shall make good faith best efforts
to contain secondhand smoke generated by patients, Clients, customers, and
staff within the lot line of the subject property. In addition, Operator will not allow
Clients, staff, or residents to litter cigarette butts on the ground, floor, deck,
sidewalk, gutter, boardwalk or street. Operator's administrators and managers
shall actively enforce, on the City's behalf, the City's prohibition tobacco use on
beaches, boardwalks, and piers (NBMC §11.08.080). This includes any
meetings Morningside's Clients participate in "off -site."
8. Parking. Operator shall keep garages and other parking spaces at its facilities
clear, unobstructed and available for parking for staff, and visiting family
members' vehicles, cleaning persons' vehicles, and client transport vans at all
times. Clients to the facility are not permitted to have personal vehicles at the
facility.
(L09-0011] Zoning Agreement - Morningside - Exhibit 1 10.09.02
11287-0007\1204428v3.doc
Exhibit 1 to Zoning Agreement
City of Newport Beach
Morningside Recovery, LLC
9. Client Transport. Operator shall ensure that loading and unloading of
passengers of the facility's transportation van shall occur only in open parking
spaces or garage spaces. The van driver is prohibited from stopping or double-
parking in a traffic lane to load and unload passengers. In addition, client drivers
shall respect all City rules regarding parking and/or stopping and waiting to load
residents. Client transport vehicles shall not block adjacent alleys or street ends.
Client drivers shall not leave vehicles in reverse gear if reverse has an audible
back-up warning sound. Client drivers shall speak to residents at a level
protective of neighborhood peace, cognizant of the hour, to avoid waking
neighbors.
10. Profanity and Lewd Behavior. Operator shall not tolerate lewd behavior, lewd
speech, or profanity at the subject property. Profanity at a level audible to
neighboring residents may result in an administrative citation issued by the City
upon the property owner and operator or other enforcement action authorized
under the Zoning Agreement.
11. Noise. Operator shall strictly adhere to the City's noise standards (NBMC
§10.26.025; 10.26.030). Operator shall be responsible for minimizing clapping,
stomping, or other noises at meetings or gatherings at the subject property,
consistent with NBMC §10.26.030.
12. Quiet Hours. Operator shall enforce the Quiet Hours of 9:00 p.m. to 8:00 a.m.
daily to its patients, Clients and customers occupying beds in its facility. Quiet
means noise, including music, television, and voices, is not audible beyond the
perimeter of the facility except in a demonstrable emergency.
13. Route Plans. Operator shall adhere to the Route Plans for transport of its staff,
residents, clients, and customers. The Route Plans for all Morningside facilities
are attached hereto as Exhibit 5. Short-term interruptions, such as medical
emergencies or street maintenance beyond Operator's control, are allowable
modifications to the Route Plans.
14. Deliveries. Staff members in their private vehicles may deliver business
products and other packages and goods to the facility during weekdays between
the hours of 9:00 a.m. to 5:00 p.m.
15. Hotline. Operator shall establish, provide public notice of, and operate a hotline
for receiving inquiries and/or complaints in reference to its operation of its facility.
The phone number need not be staffed 24 hours a day seven days a week, but
callers should be responded to within the next 24-hour period. Alternatively, the
Operator shall provide area residents and the City with a contact name, phone
number, and e-mail address that is available 24 hours a day, seven days each
week. This contact shall be available to assist residents and the City with any
problems or concerns arising from the facility. E-mails or messages left for the
(L09-0011] Zoning Agreement— Morningside — Exhibit 1 10.09.02
11287-0007\1204428v3.doc
Exhibit 1 to Zoning Agreement
City of Newport Beach
Morningside Recovery, LLC
Operator's designated contact shall be returned promptly within a 24-hour period
from receipt.
16. Stakeholder Group. Upon invitation by the City, Operator shall participate in the
activities of any stakeholder committee or group established by the City to
address complaints and concerns of residents of the City regarding the operation
of Residential Care Facilities in the City.
17. Persons per Bedroom. Operator shall not allow more than two clients in one
bedroom unless the size of the structure warrants a larger occupancy for any
single bedroom.
18. Building and Zoning. Operator recognizes that each of its facilities have
specific setbacks from the side yards, front yard, and/or back yards per the City's
Building and Zoning Codes. Operator will keep these setbacks clear of
obstruction, including building obstruction. The orderly storage of trashcans is
acceptable in setbacks.
19. Facility Nuisances. The subject properties shall not be unsafe, unsightly or
poorly maintained. If Operator receives notice of a nuisance violation from the
City in regards to any of these issues, Operator shall correct the violation within
seven calendar days.
20. Beaches and Other Common Gathering Areas. Operator's use of the
beaches for meetings, prayer, conversation, or other gatherings shall show due
respect to non-resident visitors, residents, and other beachgoers, thus allowing
them to take full enjoyment of the beach. Operator shall not conduct business on
the beach (per NBMC §10.08.030).
21. Services to Facility's Clients or Residents. Operator will use industry's best
practices to ensure that the facility's clients or residents stay in recovery
(including scheduled substance testing, random substance testing, and required
counseling).
22. Federal, State and Local Laws. Operator shall comply with all federal, state,
and local laws. The issuance of this use permit shall not constitute a waiver of
the requirements of any federal, state or local law, including the requirements of
the California Building Code.
23. Affidavit of Disability. The Operator shall execute an affidavit declaring that all
clients receiving services from this facility are disabled persons, as that term is
defined by federal and state fair housing laws.
[L09-0011] Zoning Agreement - Morningside- Exhibit 1 10.09.02
11287-0007\1204428v3.doc
EXHIBIT 2
Exhibit 2
Depiction and Description of "Peninsula Zone"
Depiction of Peninsula Zone:
The lands within the yellow boundary as shown below.
Description of Peninsula Zone:
Starting at the mouth of the Santa Ana River:
• The land area southerly of the Newport and Seminouk Sloughs known as Newport Shores, and
• The land coastward of Pacific Coast Highway to Newport Boulevard known as Balboa Coves, West
Newport Beach, Lido Sands, and Newport Island; and
• The land southerly of a line extending along the Federal Navigational Channel between Newport
Boulevard and the Newport Harbor Jetty, known as the Balboa Peninsula, Lido Peninsula, Lido Isle,
Bay Island, and Cannery Village; and
• Southward on Newport Boulevard about 50 feet to Lower Newport Bay; and
• All lands southerly of Lower Newport Bay between Newport Boulevard down the Federal Navigational
Channel within the Lower Bay, inclusive of Lido Isle and Bay Island and inclusive of the Balboa
Peninsula.
[L 10-00111 10.16.14 Momingside — Zoning Agreement Exhibit 2 (Peninsula Zone)
EXHIBIT 3
Exhibit 3
Morningside Recovery
Quarterly Compliance Review Report
Date Report Submitted:
This form covers the 3-month period of
through
During the above period, Morningside Recovery managed or controlled the following facilities in
Newport Beach:
Morningside Recovery Facilities
Date of Report: September 30, 2010
Location
Peninsula
Zone?
Peninsula
Clients &
Client Beds
Off -Peninsula
Clients &
Client Beds
ADP
Licensed?
1. 4823 River Avenue - A
Y
6
N
2: 4823 River Avenue - B
Y
6
N
3. 100 Via Antibes
Y
4
N
4. 102 Via Antibes
Y
4
N
5. 208 Via Lido Soud
Y
4
N
6. 112 B 39th Street
Y
6
Y
7. 29 Ima Loa Court
N
6
N
Total:
30
6
Note: In the above chart, "Clients" are subject to the same numerical restrictions as
"Client Beds" in the Zoning Agreement. In other words, if Morningside is authorized to
house six Clients in a particular facility, then it is limited to an equal number of Client
Beds in that facility.
The Morningside Staff Member to join the City in any inspection of the above facilities
shall be: (e-mail: , phone #: )
By my signature below I certify and declare under the penalty of perjury under the laws
of the State of California, in my personal capacity and on behalf of Morningside
Recovery, LLC that Morningside Recovery has met all Operational Conditions as
fL09-0011J-Zoning Agreement— Momingside — Exh. 3— Quarterly Compliance Report — 10-08-04
Exhibit 3
Morningside Recovery
Quarterly Compliance Review Report
described in Exhibit 1 to the Zoning Agreement during the above Compliance Review
Period.
DATE [Name], [Title]
MORNINGSIDE RECOVERY, LLC
By
DATE [Name], [Title]
[L09-0011J-Zoning Agreement— Morningside — Exh. 3— Quarterly Compliance Report — 10-08-04
EXHIBIT 4
Exhibit 4
Inspection Protocol
The following protocol reflects the CITY's compliance review under Section N (Periodic Review
of Compliance) of the Zoning Agreement between Morningside Recovery and the City of
Newport Beach.
1. On or before March 31, June 30, September 30 and December 31 of each year,
Morningside shall submit to the City's code enforcement division ("CED") the Compliance
Review Report ("Report") shown in Exhibit 3 to the Zoning Agreement. At the same time,
Morningside shall also submit the name, phone number, and e-mail of the Morningside staff
member that Morningside designates to join any inspection ("Morningside Staff Member").
2. On a quarterly basis, CED shall submit the list of Morningside facilities to the Police
Department for verification that no persons known to have been referred to Morningside by
the government (such as parolees) in violation of the Zoning Agreement live at any of the
facilities.
3. On a quarterly basis, CED shall select up to two (2) facilities on the list to verify the Client
count and Client Bed count through an onsite inspection during a weekday. CED and
Morningside shall endeavor to schedule this inspection at a time when Clients are present.
4. CED shall notify the Morningside Staff Member by e-mail and telephone of the time of the
inspection and which facilities will be inspected. Such notification will occur a reasonable
amount of time prior to the inspection, generally four (4) but not less than two (2) hours prior
to inspection.
5. While inspecting each facility, CED staff shall not obtain Client names nor take photos of
Clients and shall be respectful at all times of Client privacy. CED staff shall count Clients or
Client Beds and verify that the Client and Client Bed Count at each facility match those on
the report submitted by Morningside.
6. An inspection report shall be made for each facility.
7. All inspection reports shall be submitted to the Planning Department for inclusion in the
City's annual review of Morningside's compliance with the Zoning Agreement.
(L09-0011110-16-14 Morningside - Zoning Agreement Exhibit4 (Inspection Protocol)
EXHIBIT 5
Exhibit 5
Client Transport Routes
1
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Q .
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i
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4 �q 1 1-1771 24,
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cif
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v
NOTES:
1 — Within the boundaries of the above chart, Morningside's Client Transport Routes are limited the following streets,
except during emergencies or if approved routes are closed:
• Balboa Boulevard
• Newport Boulevard
• Superior Ave
• 32nd Street
• 39th Street, Seashore between 39th and 38th, and 38th Street
• Ticonderoga
• River Avenue (only between 51st Street and Balboa Boulevard — not the section of River Ave between 45th and 32nd
Street)
• Via Lido, Via Antibes, Via Lido Soud, Via Lido Nord
• Coast Highway
2 — The General Rule for Morningside's Client Transport vans shall be that Morningside shall use major thoroughfares
(Newport Boulevard and Balboa Boulevard) whenever possible, avoiding narrow neighborhood streets such as River
Avenue between 45th and 32nd Street).
4 — The City and Morningside shall work cooperatively to amend these routes whenever Morningside moves a facility.
SETTLEMENT AGREEMENT AND RELEASE
1. Introduction
This Settlement and Release Agreement ("AGREEMENT") is made and entered
into as of this27th day of April , 2010 by and between the CITY OF NEWPORT
BEACH (the "CITY") on one hand, and MORNINGSIDE RECOVERY, LLC,
("MORNINGSIDE") on the other. The CITY and MORNINGSIDE are collectively
referred to as the "PARTIES "
2. Definitions
For the purposes of this AGREEMENT only, the following capitalized terms shall
have the following meanings:
2.1 "ACTION" or "ACTIONS" shall refer to all claims, charges, liabilities,
damages, obligations, costs, expenses, rights of action and causes of action, whether
known or unknown, between MORNINGSIDE RECOVERY and the CITY, including
but not limited to the lawsuits captioned Newport Beach v. Morningside Recovery, LLC,
et aL, (OCSC No. 07CC11694), and Concerned Citizens of Newport Beach v. City of
Newport Beach, et aL, (USDC Case No. CV 08-00192 JVS (RNBx)).
2.2 The "CITY" shall mean the City of Newport Beach, and its City Council,
Boards and Commissions, elected and appointed Officers, Agents, Employees and
Attorneys.
2.3 "CONTROL," "CONTROLLING", "CONTROLLED BY," and "UNDER
COMMON CONTROL WITH" as used in this AGREEMENT shall mean the possession,
direct or indirect, or the power to direct or cause the direction of the management and
policies of a person, whether through the ownership of voting securities, by contract or
otherwise.
2.4 "EFFECTIVE DATE" shall mean the date upon which the PARTIES incur
the rights and obligations of this AGREEMENT, as defined in Paragraph 4, below.
2.5 "MORNINGSIDE" shall refer to the business known as Morningside
Recovery LLC, and its Directors, Trustees, Beneficiaries, Officers, Agents, Employees,
Successors, Heirs, Lessees, Assigns and Attorneys.
2.6 The "ORDINANCE" shall refer to Newport Beach Municipal Ordinance
No. 2008-5.
SETTLEMENT AGREEMENT BY AND BETWEEN
THE CITY OF NEWPORT BEACH AND MORNINGSIDE RECOVERY, LLC
11287-0007\1200955v3.doc
3. Recitals
3.1 WHEREAS the City of Newport Beach is a municipal corporation and
Charter City under the laws of the State of California. On January 8, 2008, the City
Council of the City of Newport Beach conducted a public hearing on a proposed
ordinance modifying the City's municipal code provisions regulating group residential
uses in the City and, thereafter. conducted the first reading of the ORDINANCE.
3.2 WHEREAS, on January 22, 2008, the Newport Beach City Council passed
the ORDINANCE, which, among other things, included provisions requiring then current
operators of certain residential care facilities (as defined in the ORDINANCE) in R-1, R-
1.5, R-2 and MPR Zones to obtain use permits to continue those operations at their pre-
existing locations or to seek alternate forms of relief provided in the ORDINANCE or to
abate those operations within defined time periods.
3.3 WHEREAS MORNINGSIDE is a limited liability company whose
principal place of business is the City of Newport Beach, California. MORNINGSIDE
CONTROLS and operates a facility licensed by the California Department of Alcohol
and Drug Programs capable of housing six individuals in recovery for drug and/or
alcohol abuse located at 112 39d' Street in Newport Beach. MORNINGSIDE
CONTROLS and operates non -licensed, non -treatment facilities capable of housing six
individuals in recovery for drug and/or alcohol abuse at 4823 A River Avenue, 4823 B
River Avenue, 5015 A River Avenue, and 5015 B River Avenue in the City of Newport
Beach.
3.4 WHEREAS at the time of the passage of the ORDINANCE.
MORNINSGIDE operated and CONTROLLED. and presently operates and CONTROLS
drug and/or alcohol recovery facilities in R-2 Zones, but failed to file with the CITY an
application for a Use Permit pursuant to the ORDINANCE to continue it operations in
Newport Beach.
3.5 WHEREAS on March 17, 2008, the City of Newport Beach filed its first
amended complaint in the lawsuit in the Orange County Superior Court captioned
Newport Beach v. Morningside Recovery, LLC, et al., (OCSC No. 07CC11694), seeking
to enforce moratorium ordinances enacted while it was developing the ORDINANCE
against MORNINGSIDE.
3.6 WHEREAS on January 22, 2008, a group of Newport Beach residents filed
a lawsuit captioned Concerned Citizens of Newport Beach v. City of Newport Beach, et
al., (USDC Case No. CV 08-00192 JVS (RNBx)), against the operators of sober living
homes in Newport Beach and the CITY.
SETTLEMENT AGREEMENT BY AND BETWEEN
THE CITY OF NEWPORT BEACH AND MORNINGSIDE RECOVERY, LLC
2
11287-0007\1200955v3.doc
3.7 WHEREAS on February 22, 2008, the CITY filed a cross -claim against
MORNINGSIDE and all the sober living homes named in the lawsuit. The CITY's
cross -claim asserted, among other things, that the ORDINANCE does not, on its face,
violate State of California or federal fair housing laws. On November 2, 2009, the Court
granted the CITY leave to amend its cross -claim to include a claim for injunctive relief,
and to add Barry Saywitz Properties — One LP, as a party.
3.8 WHEREAS MORNINGSIDE has not filed, and does not intend to file, any
complaints regarding the CITY or the ORDINANCE with either the United States
Department of Justice ("DOJ") or Department of Housing and Urban Development
("HUD").
3.9 WHEREAS MORNINGSIDE and the CITY have engaged in a court -
ordered settlement conference before the Honorable Judge Robert N. Block, and desire to
enter into this AGREEMENT to finally, fully, comprehensively and conclusively settle
all ACTIONS between the PARTIES, and all underlying and related contentions and
allegations, by and through this AGREEMENT and through the passage of an ordinance
that would approve a Zoning Implementation and Public Benefit Agreement ("ZONING
AGREEMENT") substantially identical to that document attached hereto as Exhibit "A."
NOW, THEREFORE, in consideration of the above Recitals, covenants and
agreements therein, the PARTIES agree as follows:
4. Effective Date of Agreement
4.1 This AGREEEMENT shall not become effective. and neither party shall
have any rights or obligations hereunder, until the EFFECTIVE DATE. The
EFFECTIVE DATE of this AGREEMENT is:
4.1.1 The thirty-first (31) day after the City Council's passage of the
ordinance approving the ZONING AGREEMENT, or
4.1.2 If a referendum or other elective challenge to the ordinance
approving this AGREEMENT qualifies to be placed on the ballot, then on the thirty-first
(31) day after the City Clerk certifies that the referendum or other elective challenge has
failed to pass, or
4.1.3 If litigation is instituted to challenge this AGREEMENT prior to the
EFFECTIVE DATE, then on the thirty-first (31) day after the litigation is terminated
either by dismissal, or by judgment after it becomes final.
SETTLEMENT AGREEMENT BY AND BETWEEN
THE CITY OF NEWPORT BEACH AND MORNINGSIDE RECOVERY, LLC
3
11287-0007U200955v3.doc
5. Release Concurrent With Effective Date
5.1 The CITY shall dismiss its cross -claim filed in the action captioned
Concerned Citizens of Newport Beach v. City of Newport Beach, et al., (Case No. CV
08-00192 JVS (RNBx)), against MORNINGSIDE and supply a Stipulation for Dismissal
(with prejudice) to MORNINGSIDE within three (3) business days of the EFFECTIVE
DATE of this AGREEMENT. The CITY hereby authorizes counsel for
MORNINGSIDE to file the Dismissal with the Court, and counsel for MORNINGSIDE
agrees to file the Stipulation for Dismissal with the Court within seven (7) business days
of the EFFECTIVE DATE of this AGREEMENT.
5.2 In consideration for that dismissal, MORNINGSIDE hereby knowingly and
intelligently waives and relinquishes any right to challenge the facial legality or facial
validity of the ORDINANCE in any court or administrative proceeding and hereby agrees
that, on its face, the ORDINANCE does not violate any state or federal housing laws and
is not discriminatory.
5.3 This release shall be a fully binding and complete settlement of all
ACTIONS between the CITY, MORNINGSIDE, and their Counsel and respective
assigns and successors save only the executory provisions of this AGREEMENT.
5.4 The PARTIES understand that the approval of the ZONING
AGREEMENT is subject to the following:
5.4.1 Conduct of public hearings required by law and the open and
unbiased application of the CITY's police powers to its Planning Commission and City
Council's consideration of that approval.
5.4.2 Referendum power of the City's electorate.
5.4.3 Legal challenge by any interested party.
5.5 Nothing in this AGREEMENT is intended to or shall have the lawful effect
of contracting away the CITY's zoning authority or any other aspect of the CITY's police
power. City Staff and the City Council have previously reviewed the terms and
conditions of the ZONING AGREEMENT, and have concluded that pursuant to
California law and the Newport Beach Municipal Code, City Staff may lawfully present
the ZONING AGREEMENT to the City's Planning Commission and City Council for
approval or disapproval, subject to duly noticed public hearings. City Staff has further
preliminarily concluded that no CEQA analysis shall be required to be completed prior to
the CITY considering approval of the ZONING AGREEMENT.
SETTLEMENT AGREEMENT BY AND BETWEEN
THE CITY OF NEWPORT BEACH AND MORNINGSIDE RECOVERY, LLC
4
11287-0007\I200955v3.doc
5.5.1 The CITY shall schedule public hearings on the ordinance that, if
adopted, would approve the ZONING AGREEMENT. If the City Council fails to
approve the ordinance within thirty (30) days following the conclusion of the public
hearings thereon, this AGREEMENT shall be of no further force or effect.
5.5.2 At the CITY's sole and absolute discretion, the CITY shall timely
file a Notice of Determination, Notice of Exemption, or other appropriate CEQA notice if
the ordinance approving the ZONING AGREEMENT is passed, and shall pay the cost of
any environmental assessment, negative declaration or environmental impact report that
is determined to be required.
5.6 The PARTIES stipulate that the Court retain jurisdiction over the PARTIES
to enforce the settlement until performance in full of the terms of the settlement.
5.7 Except as expressly excluded herein, the CITY and MORNINGSIDE waive
all rights or benefits that they may have under California Civil Code section 1542, with
regard to this AGREEMENT. Civil Code section 1542 provides:
"A general release does not extend to claims which the creditor does
not know or suspect to exist in his or her favor at the time of executing
the release, which if known by him or her must have materially
affected his or her settlement with the debtor."
6. Actions Pending Effectiveness of this Agreement
6.1 The PARTIES agree that prior to the EFFECTIVE DATE of this
AGREEMENT, the PARTIES shall jointly seek to maintain a stay of the litigation
pending in federal court captioned Concerned Citizens of Newport Beach v. City
of Newport Beach, et al., (Case No. CV 08-00192 JVS (RNBx)). During this
same period of time:
6.1.1 The CITY shall not enforce any provision of the
ORDINANCE against MORNINGSIDE.
6.1.2 MORNINSIDE agrees to abide by the Operational Conditions
attached as Exhibit "1" to the ZONING AGREEMENT.
7. Ownership of Released Claims
7.1 The CITY and MORNINGSIDE represent and warrant that none of the
matters or rights released herein has been assigned or transferred, in whole or in part, to
SETTLEMENT AGREEMENT BY AND BETWEEN
THE CITY OF NEWPORT BEACH AND MORNINGSIDE RECOVERY, LLC
5
11287-0007\ 1200955v3.doc
any person, organization, partnership or any other entity, nor has any person,
organization, partnership or any other entity become subrogated to such rights.
8. All Parties to Bear Own Costs
8.1 The CITY and MORNINGSIDE agree to bear their own attorneys' fees and
costs incurred in connection with this ACTION.
9. Entire Agreement
9.1 This AGREEMENT contains the entire understanding and agreement
between the CITY and MORNINGSIDE with respect to the matters referred to herein.
No other representations, covenants, undertakings or other prior or contemporaneous
agreements, oral or written, respecting those matters, which are not specifically
incorporated herein, may be deemed in any way to exist or to bind any of the PARTIES.
9.2 The CITY and MORNINGSIDE acknowledge that they have not executed
this AGREEMENT in reliance on any such promise, representation or warranty. This
AGREEMENT may not be modified except by a written instrument signed by authorized
representatives of the CITY and MORNINGSIDE.
10. Warranties and Indemnification for Successors in Interest
10.1 This AGREEMENT contains the entire agreement between the CITY and
MORNINGSIDE with regard to the matters set forth herein and shall be binding upon
and inure to the benefit of the executors, administrators, personal representatives, heirs,
successors and assigns of each.
10.2 Without limiting the foregoing, the PARTIES hereby represent and warrant
that the releases herein are expressly made on behalf of all council, boards and
commissions, elected and appointed officers, agents, and employees of CITY, as well as
all owners, partners, agents, employees and affiliates of MORNINGSIDE, and their heirs,
assigns and successors in interest, as well as any affected property owners, their spouses,
children, or any other family member, descendant, heir or assign of MORNINGSIDE.
SETTLEMENT AGREEMENT BY AND BETWEEN
THE CITY OF NEWPORT BEACH AND MORNINGSIDE RECOVERY, LLC
6
11287-0007\1200955v3.doc
11. Local California Law to Apply
11.1 This AGREEMENT shall be deemed to have been executed and delivered
within the State of California and the rights and obligations of the CITY and
MORNINGSIDE hereunder shall be construed and enforced in accordance with, and
governed by the local law of the State of California.
12. Construction and Waiver of Benefits of Doctrine of Contra Proferentum
12.1 The CITY and MORNINGSIDE have jointly drafted this AGREEMENT.
Hence, the CITY and MORNINGSIDE agree that the terms of this AGREEMENT, or
any of them, shall not be interpreted against or in favor of any party on the ground that
any party participated in the drafting of this AGREEMENT. The CITY and
MORNINGSIDE accordingly expressly and specifically waive the right to benefit from
application of the doctrine of contra proferentum in any subsequent dispute concerning
interpretation of the provisions of this AGREEMENT.
13. Headings
13.1 The various headings of the sections and paragraphs of this AGREEMENT
have been inserted for convenience of reference only and do not affect the meaning or
interpretation of this AGREEMENT or any provision of it.
14. Signatories Authority
14.1 Each and every one of the persons executing this AGREEMENT expressly
warrants that he or she is authorized to do so on behalf of the entity for which he or she is
executing this agreement. The CITY and MORNINGSIDE represent and warrant that
this agreement is executed voluntarily, with full knowledge of its significance.
15. No Admission of Liability
15.1 The CITY and MORNINGSIDE have entered into this AGREEMENT
solely to compromise and settle disputed claims. The signatories do not admit, concede
or otherwise acknowledge liability in this matter. The PARTIES hereto expressly deny
and disclaim any liability or that either has engaged in any wrongful conduct whatsoever.
SETTLEMENT AGREEMENT BY AND BETWEEN
THE CITY OF NEWPORT BEACH AND MORNINGSIDE RECOVERY, LLC
7
11287-0007\1200955v3.doc
16. Waiver of Breach
16.1 No waiver of any breach of any term or provision of this AGREEMENT
shall be construed to be, or shall be, a waiver of any other breach of this AGREEMENT.
No waiver is binding unless in writing and signed by the party or PARTIES waiving the
breach.
17. Further Documents and Ongoing Duty of Cooperation
17.1 The CITY and MORNINGSIDE and their Attorneys will cooperate in
executing and delivering all documents necessary to effectuate the agreements set forth
herein.
17.2 MORNINGSIDE shall not oppose the CITY's approval of the ZONING
AGREEMENT and shall support, both verbally and in writing, if requested by the CITY,
the approval of the ZONING AGREEMENT.
17.3 MORNINGSIDE shall not file any lawsuits, administrative appeals
pursuant to the CITY's municipal code, or take any other action whatsoever, in whatever
shape or form, to challenge, appeal, or otherwise seek to influence, in any respect,
approval of the ZONING AGREEMENT, with the sole exception of the activity
described in the preceding paragraph (17.2).
18. Execution and Counterparts
18.1 This AGREEMENT may be executed in multiple counterparts, each of
which shall be deemed an original AGREEMENT, and all of which shall constitute one
AGREEMENT. These counterparts may be transmitted by facsimile with the originals to
be thereafter provided by the PARTIES. Such facsimiles shall be deemed original
signatures.
19. Confidentiality
19.1 All PARTIES agree that neither they nor their representatives shall disclose
the terms of this Agreement to any individual or entity not a Party hereto. This
Agreement may be disclosed only if such disclosure is required: (i) in response to an
order of a court of competent jurisdiction; (ii) in response to an inquiry or order issued by
a state or federal agency of competent jurisdiction; (iii) to comply with any reporting
SETTLEMENT AGREEMENT BY AND BETWEEN
THE CITY OF NEWPORT BEACH AND MORNINGSIDE RECOVERY, LLC
8
11287-0007\1200955v3.doc
obligation of any federal or state law and agency, including without limitation the
Internal Revenue Service or the State Franchise Tax Board; (iv) in response to a request
from the PARTIES' insurers or prospective insurers; (v) in connection with any future
litigation between the PARTIES hereto; (vi) to the PARTIES legal, tax, and financial
advisors; (vii) in order to account to the PARTIES shareholders, partners, or investors; or
(viii) in response to a Public Records Act request made pursuant to section 6253 of the
Government Code.
20. Invalid Clause May Be Severed
20.1 If any provision, clause, or part of the AGREEMENT is adjudged illegal,
invalid or unenforceable, the balance of this AGREEMENT shall remain in full force and
effect.
CROSS -CLAIMANT:_
By:
KEITH D. CURRY
The CITY OF NEWPORT BEACH
MAYOR, CITY OF NEWPORT BEACH
Date:
APPROVIID AS TO FORM AND CONTENT
By:
PAT
RICHARDS, WATSON & GERSHON Attorneys for CROSS -CLAIMANT
Date: 26 Ape. I 0
[MORE SIGNATURES FOLLOW]
SETTLEMENT AGREEMENT BY AND BETWEEN
THE CITY OF NEWPORT BEACH AND MORNINGSIDE RECOVERY, LLC
9
11287-0007\1200955v3.doc
CROSS-h
By:
JEFFREY [YA
MORNINCrSIII • OVE ,LLC
Title: PRESIDENT
Date:
By:
CA DACE BRU
MO INGSIDE RECOVERY, LLC
Title: CHIEF EXECUTIVE OFFICER
Date:
APPROVED AS TO FORM AND CONTENT
By:
MARY HELEN BEATIFICATO
BEATIFICATO & ASSOCIATES, Attorneys for CROSS -DEFENDANT
Date:
SETTLEMENT AGREEMENT BY AND BETWEEN
THE CITY OF NEWPORT BEACH AND MORNINGSIDE RECOVERY, LLC
10
11287-0007\1200955v3.doc
OR G _. -...
CROSS-bl\ rE
By: t
JEFFREY `:YAE
MORNINGSI
Title: PRESIDENT
Date:
,LLC
By: %A,-/4
CAN P ACE BRU
MORNINGSIDE RECOVERY, LLC
Title: CHIEF EXECUTIVE OFFICER
Date:
APPRQ,VED AS TOA?QRM AND CONTENT
By:
MARY HELEN I3?AT "FICAT
BEATIFICATO & tSSOCIAIES Attorneys for CROSS -DEFENDANT
Date:
4 do
SETTLEMENT AGREEMENT BY AND BETWEEN
THE CITY OF NEWPORT BEACH AND MORNINGSIDE RECOVERY, LLC
10
I1287-000711200955v3.doc
OR AL
(EXHIBIT "A")
ZONING IMPLEMENTATION
AND PUBLIC BENEFIT AGREEMENT
(Pursuant to California Government Code §§ 65864-65869.5)
This Zoning Implementation and Public Benefit Agreement (the "ZONING
AGREEMENT") is entered into on , 2010, by and between the
CITY OF NEWPORT BEACH, a charter city ("CITY") on the one hand, and
MORNINGSIDE RECOVERY, LLC, ("MORNINGSIDE") on the other. The
CITY and MORNINGSIDE are collectively referred to as the "PARTIES."
I.
Recitals
A. The City Council hereby finds this ZONING AGREEMENT is
consistent with the provisions of California Government Code §65867, the City of
Newport Beach Municipal Code Chapter 15.45, and the City's General Plan.
B. On , 2010, the City's Planning Commission held a
public hearing on this ZONING AGREEMENT, made findings and
determinations with respect to this ZONING AGREEMENT, and recommended to
the City Council that the City Council approve this ZONING AGREEMENT.
C. On , 2010, the City Council also held a public hearing
on this ZONING AGREEMENT and considered the Planning Commission's
recommendations and testimony and information submitted by City staff,
MORNINGSIDE, and members of the public. On , 2010, pursuant to
applicable state law (California Government Code §§ 65864-65869.5) and local
law (City of Newport Beach Municipal Code Chapter 15.45), the City Council
passed its Ordinance No. finding this ZONING AGREEMENT to be
consistent with the City of Newport Beach General Plan and approving this
ZONING AGREEMENT.
II.
Definitions
The following terms when used in this ZONING AGREEMENT shall have
the meanings set forth below:
A. "BLOCK" shall mean an area that is bounded on all sides by streets.
In the Peninsula Zone, a BLOCK length is 617 feet, which is the calculable
median block length within the City of Newport Beach's Nonstandard Subdivision
Areas.
B. "CITY" shall mean the City of Newport Beach and its City Council.
C. "CLIENT" (or "CLIENTS") shall mean any persons residing at any
MORNINGSIDE FACILITY for the purpose of recovering from drug and/or
alcohol abuse.
D. "CONTROL" (including the terms "controlling," "controlled by,"
and "under common control with,") shall mean the possession, direct or indirect,
of the power to direct or cause the direction of the management and policies of a
person, whether through the ownership of voting securities, by contract, or
otherwise.
E. "FACILITY" (or "FACILITIES") is a residential unit used or
occupied by persons in recovery from alcoholism and/or drug abuse. Facilities
may be "licensed facilities" or unlicensed "sober living homes." As used in this
AGREEMENT, all facilities constitute "residential care facility" uses within the
context of the City's zoning ordinance.
D. "GENERAL PLAN" shall mean the 2006 General Plan adopted by
the City Council on July 25, 2006, by Resolution No. 2006-76. The Land Use
Plan of the Land Use Element of the General Plan was approved by Newport
Beach voters in a general election on November 7, 2006.
E. "LICENSED FACILITIES" shall mean alcoholism and drug abuse
recovery facilities licensed by the California Department of Alcohol and Drug
Programs ("ADP").
F. "PARTY" or "PARTIES" shall mean either the CITY or
MORNINGSIDE or any of MORNINGSIDE's affiliates or both, as determined by
the context.
G. "PROPERTY" or "PROPERTIES' shall mean MORNINGSIDE's
facilities at 112 39th Street, 4823 A River Avenue, 4823 B River Avenue, 5015 A
River Avenue, 5015 B River Avenue, and 29 Ima Loa Court in Newport Beach.
Additionally, this AGREEMENT may apply to parcels not yet identified upon
which MORNINGSIDE may operate facilities pursuant to this AGREEMENT in
the future.
1193897-7
Morningside Recovery, LLC Zoning Agreement
Exhibit "A" to Settlement Agreement
2
H. "SOBER LIVING HOMES" shall mean alcoholism and/or drug
abuse recovery facilities that are not licensed by the ADP.
I. "7-and-OVER" shall mean any FACILITY licensed by the ADP to
house more than 7 persons in recovery for drug and/or alcohol abuse.
III.
Agreement
A. Terms of Agreement.
This ZONING AGREEMENT allows MORNINGSIDE a vested right to
the following:
1193897-7
1.)
MORNINGSIDE may operate FACILITIES housing up to thirty-
six (36) CLIENTS in Newport Beach pursuant to certain
operational guidelines described more particularly in Exhibit "1"
attached hereto. Except as described in Section A (3), below,
MORNINGSIDE may not exceed 36 CLIENTS in Newport
Beach.
2.) MORNINGSIDE may house up to 30 of its 36 total CLIENTS in
the Newport Beach "Peninsula Zone." The Peninsula Zone is
more particularly defined in Exhibit "2" attached hereto;
3.) MORNINGSIDE can exceed its 36 CLIENT maximum only by
acquiring 7-and-OVER FACILITIES that have obtained use
permits under Chapter 20.91A of the Newport Beach Municipal
Code.
4.) MORNINGSIDE shall conduct its OPERATIONS in Newport
Beach in conformance with the Operational Guidelines attached
hereto as Exhibit "1."
5.) MORNINGSIDE will comply with the following dispersal and
distancing requirements for its FACILITIES in Newport Beach:
a. Only one (1) treatment home or sober living facility (licensed
or unlicensed by ADP) is allowed per BLOCK, and no
FACILITIES facing each other;
Morningside Recovery, LLC Zoning Agreement
Exhibit "A" to Settlement Agreement
3
b. No FACILITIES (licensed or unlicensed by ADP) within
1000 feet of elementary schools or large, licensed day-care
facilities.
B. Significant Public Benefits. The significant public benefits that this
ZONING AGREEMENT provides include, but are not limited to, the following:
1.) Settlement and avoidance of litigation costs, including the
continued expenditure of attorneys' fees;
2.) Preservation of the regulatory ordinance that was the subject
matter of this lawsuit;
3.) Avoidance of potential federal administrative proceedings;
4.) A reduction and limitation on the size of a residential care
operation in Newport Beach, including a limitation on
LICENSED FACILITIES;
5.) Dispersal of LICENSED FACILITIES and SOBER LIVING
HOMES to reduce the concentration thereof in the City's
residential districts;
6.) The placement of operational controls on said FACILITIES to
reduce the perceived negative impacts on the City's residential
neighborhoods;
C. General Plan Consistency and Zoning Implementation. This
ZONING AGREEMENT and the regulations applied herein to MORNINGSIDE
will cause the City of Newport Beach's zoning and other land use regulations to
remain consistent with the GENERAL PLAN.
D. Warranties and Representations. Both PARTIES represent they
have legal authority to enter into this ZONING AGREEMENT and the remainder
of the agreements and documents that comprise the settlement documents herein,
and that the necessary authorizations have been obtained, by resolution or other
action, and that the persons whose names appear as signatories below were
authorized to accept this ZONING AGREEMENT on behalf of the PARTY under
whose name they signed.
1193897-7
Morningside Recovery, LLC Zoning Agreement
Exhibit "A" to Settlement Agreement
4
1.)
Each PARTY specifically represents and warrants that it has the
legal authority to enter into a ZONING AGREEMENT of the
type and kind herein, and,
2.) The City of Newport Beach represents and warrants that this
ZONING AGREEMENT and the regulations applied to
PROPERTY are:
a. Consistent with the GENERAL PLAN for the City of
Newport Beach and any Specific Plans that apply to the area
in which any portion of MORNINGSIDE's PROPERTIES
are located, and;
b. Consistent with the Local Coastal Land Use Plan ("CLUP")
for the City of Newport Beach and that the CLUP has been
approved by the California Coastal Commission.
E. Operation of Property; Applicable Regulations. Other than as
expressly set forth in this ZONING AGREEMENT, during the term of this
ZONING AGREEMENT, the terms and conditions concerning the operation of
the PROPERTIES, including but not limited to the permitted uses, density,
intensity of use, and the location of buildings involved, shall be those set forth in
the City of Newport Beach's ordinances and regulations, and the City of Newport
Beach shall not prevent operation of the PROPERTIES in compliance with the
applicable regulations and all other applicable laws and regulations in Section I,
below.
F. Vested Rights. During the term of this ZONING AGREEMENT,
except to the extent the City of Newport Beach reserves its discretion as expressly
set forth in this ZONING AGREEMENT or in the applicable regulations and all
other applicable laws and regulations specified in Section I, MORNINGSIDE
shall have the vested right, within the limits and constraints of the applicable
regulations, to conduct OPERATIONS of LICENSED FACILITIES and SOBER
LIVING HOMES at its PROPERTIES. In the event Ordinance 2008-5 is repealed
by action of the City Council of the City of Newport Beach or the electorate, or if
a court of competent jurisdiction declares the Ordinance invalid or unenforceable,
this AGREEMENT shall remain in full force and effect.
G. Police Power. In all respects not provided for in this ZONING
AGREEMENT, the City of Newport Beach shall retain full rights to exercise its
police power to regulate the operation of residential care facilities on the
1193897-7
Morningside Recovery, LLC Zoning Agreement
Exhibit "A" to Settlement Agreement
5
PROPERTIES provided such powers are applied consistently with the provisions
of state law and the terms of this AGREEMENT.
H. No Conflicting Enactments. During the term of this ZONING
AGREEMENT the City of Newport Beach shall not apply to the PROPERTIES
any City -adopted ordinance, policy, rule, regulation, or other measure relating to
OPERATION of the FACILITIES to the extent it conflicts with this ZONING
AGREEMENT.
I. Reservations of Authority. Notwithstanding any provisions set forth
in this ZONING AGREEMENT to the contrary, the laws, rules, regulations, and
official policies set forth herein shall apply to and govern OPERATIONS at the
PROPERTIES:
1.)
Procedural Regulations. Then current 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 they are adopted and applied Citywide.
2.) Consistent City Regulations. Newport Beach City ordinances,
resolutions, regulations, and official policies governing
development and building that do not conflict with the
AGREEMENT, or where MORNINGSIDE has consented in
writing to the regulations, shall apply to the PROPERTIES.
3.) Public Health and Safety. Any Newport Beach City ordinance,
regulation, rule, program, or official policy of general application
that is necessary to protect persons on the PROPERTIES or in
the immediate community from conditions dangerous to their
health or safety, shall apply to the PROPERTIES The City of
Newport Beach may unilaterally enact any ordinance, regulation,
rule, program, or official policy of general application necessary
to protect persons from conditions dangerous to their health of
safety.
J. No Agency. Neither PARTY is acting as the agent of the other in
any respect. Each PARTY is an independent contracting entity with respect to the
terms, covenants, and conditions contained in this ZONING AGREEMENT. This
ZONING AGREEMENT forms no partnership, joint venture, or other association
of any kind. The only relationship between the PARTIES is that of a govermnent
1193897-7
Morningside Recovery, LLC Zoning Agreement
Exhibit "A" to Settlement Agreement
6
entity regulating the operation of private property by the owner or lessee of the
property.
K. Effective Date. This ZONING AGREEMENT shall not become
effective, and except as set forth in subsection (1) of this Section, neither PARTY
shall have any rights or obligations hereunder, until the "Effective Date."
1.) This ZONING AGREEMENT shall become effective on:
a. The 91st day following the City Council of the City of
Newport Beach's passage of the ordinance approving this
ZONING AGREEMENT, or
If a referendum or other elective challenge to the ordinance
approving this ZONING AGREEMENT qualifies for the
ballot, then on the 31' day after the City Clerk of the City of
Newport Beach certifies that the referendum or other
elective challenge has failed to pass, or
c. If litigation is initiated to challenge this ZONING
AGREEMENT prior to the Effective Date established in
accordance with Section K (1) (a), and (b), above, then on
the 31st day after the litigation has terminated, or the time
for appeal has expired, and the legal challenge has been
unsuccessful.
2.) The term of this ZONING AGREEMENT shall commence on
the Effective Date and shall expire at the conclusion of the 25th
year thereafter. However in no event shall the term of this
ZONING AGREEMENT exceed thirty (30) years after its
execution.
3.) Stay of Ordinance 2008-5 Pending Effective Date. Prior to the
effective date of the ordinance adopting this ZONING
AGREEMENT, or that date upon which it becomes clear that
there will be no Effective Date, whichever is later, the CITY
shall not otherwise enforce the provisions of Ordinance 2008-5
against MORNINGSIDE or its AFFILIATES.
L. Amendment or Cancellation of the Zoning Agreement. Other than
modifications of this ZONING AGREEMENT under section I subsection (3) of
this ZONING AGREEMENT, this ZONING AGREEMENT may be amended or
1193897-7
Morningside Recovery, LLC Zoning Agreement
Exhibit "A" to Settlement Agreement
7
cancelled in whole or in part only by mutual written and executed consent of the
PARTIES in compliance with California Government Code section 65868, and
City of Newport Beach Municipal Code section 15.45.070.
M. Enforcement. Unless amended or cancelled as provided in Section
L, above, or modified or suspended pursuant to California Government Code
section 65869.5, this ZONING AGREEMENT is enforceable by either PARTY
despite any change in any applicable GENERAL PLAN or Specific Plan, zoning,
subdivision, or building regulation, or other applicable ordinance or regulation
adopted by the City (including by the City's electorate,) that purports to apply to
any or all of the PROPERTIES.
N. Periodic Review of Compliance. CITY and MORNINGSIDE shall
each comply in good faith with the terms of this ZONING AGREEMENT. The
PARTIES shall review this ZONING AGREEMENT at least once every 12
months from the Effective Date for good faith compliance with its terms,
consistent with Government Code sections 65865 and 65865.1 and City of
Newport Beach Municipal Code section 15.45.080. At the reviews,
MORNINGSIDE shall document the current status of its OPERATIONS.
MORNINGSIDE also agrees to furnish evidence of good faith compliance with
this AGREEMENT as the CITY may require in the reasonable exercise of its
discretion, and after reasonable notice to MORNINGSIDE. On or before
December 31 s` and June 30th of each year during the term of this ZONING
AGREEMENT. MORNINGSIDE shall submit a Compliance Review Report,
whose template is attached hereto as Exhibit "3." The requirement of good faith
compliance shall be met upon the submittal to the CITY of an accurate
Compliance Review Report showing information relating to facility locations and
the number of CLIENTS at each MORNINGSIDE FACILITY. The CITY shall
have the right to audit the accuracy of the Compliance Review Report through the
on -site inspections of MORNINGSIDE's FACILITIES at mutually agreeable
times during regular business hours.
O. Events of Default.
1.)
1193897-7
Default by Morningside. Pursuant to California Government
Code section 65865.1, if the CITY determines that
MORNINGSIDE has not complied in good faith with its
obligations pursuant to this ZONING AGREEMENT, the CITY
shall by written notice to MORNINGSIDE specify the manner in
which MORNINGSIDE has failed to comply and state the steps
MORNINGSIDE must take to bring itself into compliance. If
MORNINGSIDE does not commence compliance within thirty
Morningside Recovery, LLC Zoning Agreement
Exhibit "A" to Settlement Agreement
8
1193897-7
(30) days after receipt of written notice from the CITY
specifying the manner in which MORNINGSIDE has failed to
comply and diligently pursue steps to achieve full compliance,
then MORNINGSIDE shall be deemed to be in default under the
terms of this ZONING AGREEMENT. The CITY may then
seek available remedies as provided in subsections (3) and (4),
below.
2.) Default by City. If the CITY has not complied with any of its
obligations and limitations under this ZONING AGREEMENT,
MORNINGSIDE shall by written notice to the CITY specify the
manner in which the CITY has failed to comply and state the
steps necessary for the CITY to bring itself into compliance. If
the CITY does not commence compliance within thirty (30) days
after receipt of the written notice from MORNINGSIDE
specifying the manner in which the CITY has failed to comply
and diligently pursue steps to achieve full compliance, then the
CITY shall be deemed to be in default under the terns of this
ZONING AGREEMENT. MORNINGSIDE may then seek a
specific performance or similar equitable remedy as provided in
subsection (3) of Section 0, below.
3.) Specific Performance and Damages Remedies. The PARTIES
acknowledge that remedies at law are generally inadequate and
that specific performance is appropriate for the enforcement of
this ZONING AGREEMENT. The remedy of specific
performance or, in the alternative, a writ of mandate, shall be the
sole and exclusive remedy available to either PARTY in the
event of the default, or alleged default, by the other. Prior to
exercising such a remedy, the PARTY seeking to do so shall
submit the matter to non -binding arbitration through JAMS or
another mutually acceptable arbitrator.
4.) Recovery of Legal Expenses by Prevailing Party in Any Action.
In any judicial proceeding between the PARTIES that seeks to
enforce the provisions of this ZONING AGREEMENT, the
prevailing party shall recover all of its actual and reasonable.
costs and expenses. These costs and expenses shall include
expert witness fees, attorneys' fees, and costs of investigation
and preparation before the initiation of the action. The right to
recover these costs and expenses shall accrue upon initiation of
the action.
Morningside Recovery, LLC Zoning Agreement
Exhibit "A" to Settlement Agreement
9
P. Cooperation. Each PARTY covenants to take all reasonable actions
and execute all documents that may be necessary to achieve the purposes and
objectives of this ZONING AGREEMENT.
Q. Force Majeure. Neither PARTY shall be deemed to be in default
where failure or delay in performance of any of its obligations under this ZONING
AGREEMENT is caused, through no fault of the PARTY whose performance is
prevented or delayed, by floods, earthquakes, other acts of God, fires, war, riots or
other hostilities, strikes or other labor hostilities, state or federal regulations, or
court actions.
R. Third Party Legal Challenge. If a third party brings a legal action
challenging the validity or enforceability of any provision of this ZONING
AGREEMENT or the applicable regulations or the manner in which the ordinance
approving this ZONING AGREEMENT was processed and approved, including
the application of the California Environmental Quality Act ("CEQA") to that
process, the PARTIES shall defend the third party challenge jointly, and each
party shall be responsible for its legal expenses incurred in connection with the
challenge, except that either or both parties may seek recovery of all legal
expenses from the third party challenger.
S. Right to Assign. MORNINGSIDE shall have the right to transfer or
assign the rights and obligations contained herein in whole to any person,
partnership, joint venture, firm, or corporation at any time during the term of this
ZONING AGREEMENT without the consent of the CITY. Upon the effective
date of any such transfer or assignment, the transferor -assignor shall notify the
CITY of the name and address of the transferee. Any assignment of this ZONING
AGREEMENT must be pursuant to a sale or transfer of MORNINGSIDE's rights
in their entirety. Any sale or transfer of the PROPERTY shall include the
assignment and assumption of the rights, duties, and obligations arising from this
ZONING AGREEMENT to the transferee with respect to all of the
PROPERTIES. MORNINGSIDE shall no longer be obligated under this
ZONING AGREEMENT for the PROPERTY if MORNINGSIDE is not in default
under this ZONING AGREEMENT at the time of the sale or transfer.
T. Zoning Agreement Binding on Successors and Assigns. The
burdens of this ZONING AGREEMENT are binding upon, and the benefits of this
ZONING AGREEMENT shall inure to, all successors in interest of the parties to
this ZONING AGREEMENT.
1193897-7
Morningside Recovery, LLC Zoning Agreement
Exhibit "A" to Settlement Agreement
10
U. Estoppel Certificate. At any time, either PARTY may deliver
written notice to the other PARTY that the PARTY certify in writing that, to the
best of its knowledge:
1.) This ZONING AGREEMENT is in full force and effect and is
binding on the PARTY;
2.) This ZONING AGREEMENT has not been amended or
modified either orally or in writing. If this ZONING
AGREEMENT has been amended, the PARTY providing the
certification shall identify the amendments; and,
3.) The requesting PARTY is not in default in the performance of its
obligations under this ZONING AGREEMENT. If the
requesting PARTY is in default, the other PARTY must describe
the nature of the default.
The requesting PARTY shall execute and return the certificate within sixty
(60) days following receipt. Any assignee of a PARTY's rights and obligations
hereunder, as referred to in this Section, shall be entitled to rely on the certificate.
V. Further Actions and Instruments. Each PARTY shall cooperate with
and provide reasonable assistance to the other PARTY to the extent consistent
with and necessary to implement this ZONING AGREEMENT. Upon the request
of a PARTY at any time, the other PARTY shall promptly execute, with
acknowledgement or affidavit if reasonably required, and file or record the
required instruments and writings and take any actions as may be reasonably
necessary to implement this ZONING AGREEMENT or to evidence or
consummate the transactions contemplated by this ZONING AGREEMENT.
W. Notices. Any notice or demand that shall be required or permitted
by law or any provision of this ZONING AGREEMENT shall be in writing. If the
notice or demand will be served upon a PARTY, it shall be personally served to
the PARTY; deposited in the U.S. Mail, certified, return receipt requested, and
postage prepaid; or delivered by a reliable courier service that provides a receipt
showing date and time of delivery with courier charges prepaid. The notice or
demand shall be addressed as follows:
1193897-7
To City:
City of Newport Beach
3300 Newport Boulevard
Post Office Box 1768
Newport Beach, California 92663-3884
Morningside Recovery, LLC Zoning Agreement
Exhibit "A" to Settlement Agreement
11
With a copy to:
To Operator:
With a copy to:
Attn: City Manager
Fax: 949-644-3020
City Attorney
City of Newport Beach
3300 Newport Boulevard
Post Office Box 1768
Newport Beach, California 92663-3884
Morningside Recovery, LLC
3404 A Via Lido
Newport Beach, California 92663
(949) 675-0006
Mary Helen Beatificato
Beatificato & Associates, APC
28562 Oso Parkway, Ste. D-424
Rancho Santa Margarita, California
92688
Either PARTY may change the address stated in this Section by notice to
the other PARTY in the manner provided in this Section, and notices shall be
addressed and submitted to the new address. Notice shall be deemed to be
delivered upon the earlier of (a) the date received; or (b) three business days after
deposit in the mail as provided above.
X. Rules of Construction and Miscellaneous Terms.
1193897-7
1.)
Rules of Construction. The singular includes the plural; the
masculine and neuter include the feminine; "shall" is mandatory;
"may" is permissive.
2.) Time is of the essence. Time is of the essence regarding each
provision of this ZONING AGREEMENT in which time is an
element.
3.) Waiver. Failure by a PARTY to insist upon the strict
performance of any of the provisions of this ZONING
AGREEMENT by the other PARTY, and failure by a PARTY to
exercise its rights upon a default by the other PARTY, shall not
constitute a waiver of that PARTY's right to demand strict
compliance by the other PARTY in the future.
Morningside Recovery, LLC Zoning Agreement
Exhibit "A" to Settlement Agreement
12
1193897-7
5.) Counterparts. This ZONING AGREEMENT may be executed in
two or more counterparts, each of which shall be identical and
may be introduced in evidence or used for any other purpose
without any other counterpart, but all of which shall together
constitute one and the same ZONING AGREEMENT.
6.) Entire Agreement. Except for the Settlement Agreement, this
ZONING AGREEMENT constitutes the entire agreement and
supersedes all prior agreements and understandings, both written
and oral, between the PARTIES with respect to the subject
matter addressed in this ZONING AGREEMENT.
7.) Construction. This ZONING AGREEMENT has been drafted
after extensive negotiation and revision. Both the CITY and
MORNINGSIDE are sophisticated parties who were represented
by independent counsel throughout these negotiations. The
CITY and MORNINGSIDE each agree and acknowledge that the
terms of this ZONING AGREEMENT are fair and reasonable,
taking into account their respective purposes, terms, and
conditions. This ZONING AGREEMENT shall therefore be
construed as a whole consistent with its fair meaning, and no
principle or presumption of contract construction or
interpretation shall be used to construe the whole or any part of
this ZONING AGREEMENT in favor of, or against, either
PARTY.
8.) No Third Party Beneficiaries. The only parties to this ZONING
AGREEMENT are the CITY and MORNINGSIDE. This
ZONING AGREEMENT does not involve any third party
beneficiaries, and it is not intended and shall not be construed to
benefit or to be enforceable by any other person or entity.
9.) Applicable Law and Venue. This ZONING AGREEMENT shall
be construed and enforced consistent with the internal laws of the
State of California. Any action arising under this ZONING
AGREEMENT or brought by any PARTY for the purpose of
enforcing, construing, or determining the validity of any
provision of this ZONING AGREEMENT shall be filed and tried
in the Superior Court of the County of Orange, State of
California, or the United States District Court for the Central
Morningside Recovery, LLC Zoning Agreement
Exhibit "A" to Settlement Agreement
13
1193897-7
District of California. The PARTIES waive all provisions of law
providing for the removal or change of venue to any other court.
10.) Section Headings. All section headings and subheadings are
inserted for convenience only and shall not affect construction or
interpretation of this ZONING AGREEMENT.
11.) Authority to Execute. The persons executing this ZONING
AGREEMENT warrant and represent that they have they have
the authority to execute this ZONING AGREEMENT on behalf
of the entity for which they are executing this ZONING
AGREEMENT. They further warrant and represent that they
have the authority to bind their respective PARTIES to the
performance of its obligations under the ZONING
AGREEMENT.
CITY:
CITY OF NEWPORT BEACH
By:
Keith D. Curry
Title: MAYOR of Newport Beach
MORNINGSIDE RECOVERY, LLC
By:
JEFFREY YATES
Title: President
MORNINGSIDE RECOVERY, LLC
By:
CANDACE BRUCE
Title: Chief Executive Officer
Momingside Recovery, LLC Zoning Agreement
Exhibit "A" to Settlement Agreement
14
1193897-7
APPROVED AS TO FORM:
By:
David R. Hunt
Title: CITY ATTORNEY
CITY OF NEWPORT BEACH
ATTEST:
By:
Leilani Brown
Title: CITY CLERK
CITY OF NEWPORT BEACH
Morningside Recovery, LLC Zoning Agreement
Exhibit "A" to Settlement Agreement
15
Exhibit "1" to Zoning Agreement
City of Newport Beach
Morningside Recovery, LLC
EXHIBIT "1"
OPERATIONAL CONDITIONS
for
MORNINGSIDE RECOVERY, LLC
1. Occupancy Level. The operator of Morningside Recovery, LLC, hereinafter
referred to as "Operator," is limited to housing a total of thirty-six (36) clients in
recovery from drug and alcohol abuse in the City of Newport Beach, and shall
limit occupancy of its current facilities to the following:
a. 4823 A River Avenue — 6 client maximum
b. 4823 B River Avenue — 6 client maximum
c. 5015 A River Avenue — 6 client maximum
d. 5015 B River Avenue — 6 client maximum
e. 112 396 Street — 6 client maximum
f. 29 Ima Loa Court — 6 client maximum
The above occupancy levels reflect a maximum of thirty (30) clients in the
Peninsula Zone and a maximum of six (6) outside of the Peninsula Zone. The
boundaries of the Peninsula Zone are more particularly defined in Exhibit "2" of
the corresponding Zoning Agreement. Operator may move clients from the above
properties into other properties but must maintain the 30 client cap in the
Peninsula Zone and 36 total client cap citywide, provided that Operator maintain
the dispersion standards in Section III A, subsections 5 (a) & (b) of the Zoning
Agreement.
2. Staffing. Operator shall have enough staff to appropriately and responsibly
manage each facility; including at least one qualified manager on -site or on -call at
all times (24 hours a day, seven days each week).
3. Governmental Referrals. Operator shall not provide any services to any client or
house any client who has been referred or caused to be referred to a Morningside
Recovery facility by any governmental agency, including but not limited to
probationers or parolees, due to the limitations that Section 509.9 of the California
Building Code places on Group I and R occupancies.
11287-0007\1204428v1.doc
Exhibit "2" to Settlement Agreement
City of Newport Beach
Momingside Recovery, LLC
4. Assembly Uses. Assembly uses are prohibited in these facilities, except those that
are limited solely to client residents of the facility and facility staff (and in some
cases small meetings of a client's family members with facility staff).
5. Medical Waste. Any and all medical waste generated through the operation of
the facility shall be disposed of in accordance with the City of Newport Beach's
Municipal Code, all other laws and best industry standards and practices.
6. Trash and Trash Enclosures. Operator shall comply with City code provisions
pertaining to trash enclosures, and if directed by the Planning Director, shall
secure and maintain commercial bin service at the subject properties. Operator
shall provide a sufficient number of plastic trash cans with sealable covers to
contain all of the refuse generated by the facility, which are to be used at all times.
Trash cans shall be put out for pick up no earlier than 7:00 p.m. and before 8:00
p.m. on the evening before trash collection day, and shall be put back within the
property by 6:00 p.m. on the day of collection.
7. Smoking and Tobacco Products. Per NBMC Section 20.91A.050(A), no clients,
guests, or any other users of the subject property may smoke in an area from
which the secondhand smoke may be detected on any parcel other than the parcel
upon which the use is located. Operator shall use its best efforts to contain
secondhand smoke generated by patients, clients, customers, and staff within the
lot line of the subject property. In addition, Operator will not allow clients, staff,
or residents to litter cigarette butts on the ground, floor, deck, sidewalk, gutter,
boardwalk or street. Operator's administrators and managers shall use their best
efforts to ensure that its clients comply with the City's prohibition on clients'
tobacco use on beaches, boardwalks, and piers (NBMC §11.08.080). This
includes any meetings Morningside's clients participate in "off -site."
8. Parking. Operator shall keep garages and other parking spaces at its facilities
open and available for parking for staff, and visiting family members' vehicles,
cleaning persons' vehicles, and client transport vans at all times. Clients to the
facility are not permitted to have personal vehicles at the facility.
9. Client Transport. Operator shall ensure that loading and unloading of passengers
of the facility's transportation van shall occur only in open parking spaces or
garage spaces. The van driver is prohibited from stopping or double-parking in a
traffic lane to load and unload passengers. In addition, client drivers shall respect
all City rules regarding parking and/or stopping and waiting to load residents.
Client transport vehicles shall not block adjacent alleys or street ends. Client
drivers shall not leave vehicles in reverse gear if reverse has an audible back-up
11287-0007\1204428v1.doc
Exhibit "2" to Settlement Agreement
City of Newport Beach
Morningside Recovery, LLC
warning sound. Client drivers shall speak to residents at a level protective of
neighborhood peace, cognizant of the hour, to avoid waking neighbors.
10. Profanity and Lewd Behavior. Operator shall not tolerate lewd behavior, lewd
speech, or profanity at the subject property. Profanity at a level audible to
neighboring residents may result in an administrative citation issued by the City
upon the property owner and operator.
11. Noise. Operator shall strictly adhere to the City's noise standards (NBMC
§10.26.025; 10.26.030). Operator shall be responsible for minimizing clapping,
stomping, or other noises at meetings or gatherings at the subject property,
consistent with NBMC § 10.26.030.
12. Route Plans. Operator shall adhere to the Route Plans for transport of its staff,
residents, clients, and customers. The Route Plans for all Morningside facilities
are attached hereto as "Exhibit 4." Short -tern interruptions, such as medical
emergencies or street maintenance beyond Operator's control, are allowable
modifications to the Route Plans.
13. Deliveries. Staff members in their private vehicles may deliver business products
and other packages and goods to the facility during weekdays between the hours
of 9:00 a.m. to 5:00 p.m.
14. Hotline. Operator shall establish, provide public notice of, and operate a hotline
for receiving inquiries and/or complaints in reference to its operation of its facility.
The phone number need not be staffed 24 hours a day seven days a week, but
callers should be responded to within the next 24-hour period. Alternatively, the
Operator shall provide area residents and the City with a contact name, phone
number, and e-mail address that is available 24 hours a day, seven days each
week. This contact shall be available to assist residents and the City with any
problems or concerns arising from the facility. E-mails or messages left for the
Operator's designated contact shall be returned promptly within a 24-hour period
from receipt.
15. Stakeholder Group. Upon invitation by the City, Operator shall participate in the
activities of any stakeholder committee or group established by the City to address
complaints and concerns of residents of the City regarding the operation of
Residential Care Facilities in the City.
16. Persons per Bedroom. Operator shall not allow more than three clients to sleep
in one bedroom.
11287-0007\1204428v1.doc
Exhibit " 2" to Settlement Agreement
City of Newport Beach
Morningside Recovery, LLC
17. Building and Zoning. Operator recognizes that each of its facilities have specific
setbacks from the side yards, front yard, and/or back yards per the City's Building
and Zoning Codes. Operator will keep these setbacks clear of obstruction,
including building obstruction. The orderly storage of trashcans is acceptable in
setbacks.
18. Facility Nuisances. The subject properties shall not be unsafe, unsightly or
poorly maintained. If Operator receives a nuisance violation from the City in
regards to any of these issues, Operator shall correct the violation within seven
days or contact the City directly to negotiate a mutually agreeable timeline.
19. Beaches and Other Common Gathering Areas. Operator's use of the beaches
for meetings, prayer, conversation, or other gatherings shall show due respect to
non-resident visitors, residents, and other beachgoers, thus allowing them to take
full enjoyment of the beach. Operator shall not conduct business on the beach (per
NBMC §10.08.030).
20. Federal, State and Local Laws. Operator shall comply with all federal, state,
and local laws. The issuance of this use permit shall not constitute a waiver of the
requirements of any federal, state or local law, including the requirements of the
California Building Code.
21. Affidavit of Disability. The Operator shall execute an affidavit declaring that all
clients receiving services from this facility are disabled persons, as that term is
defined by federal and state fair housing laws.
11287-0007\1204428v1.doc
Exhibit "2"
Depiction and Description of "Peninsula Zone"
Depiction of Peninsula Zone:
Description of Peninsula Zone:
Starting at the mouth of the Santa Ana River:
• The land area southerly of the Newport and Seminouk Sloughs known as Newport Shores, and
• The land coastward of Pacific Coast Highway to Newport Boulevard known as Balboa Coves, West
Newport Beach, Lido Sands, and Newport Island; and
• The land southerly of a line extending along the Federal Navigational Channel between Newport
Boulevard and the Newport Harbor Jetty, known as the Balboa Peninsula, Lido Peninsula, Lido Isle,
Bay Island, and Cannery Village; and
• Southward on Newport Boulevard about 50 feet to Lower Newport Bay; and
• All lands southerly of Lower Newport Bay between Newport Boulevard down the Federal Navigational
Channel within the Lower Bay, inclusive of Lido Isle and Bay Island and inclusive of the Balboa
Peninsula.
Exhibit "3" to the Zoning Agreement
Compliance Report Template
(Date Report Submitted)
This form covers the period of (month, day) through
20 .
(month, day),
During the above period, Momingside Recovery, LLC, managed or controlled the following
facilities in Newport Beach:
Property Address
Peninsula
Zone?
(Y or N)
Bed Count
Peninsula
Off Peninsula
ADP
License?
(Y or N)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
Total Bed Count
1287=0007\1213146v4.doc ._
A. • 40::
}'I,\ 40os I
A05 r_ i
Morningside Recovery
Travel Routes (draft #1)
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NOTES:
1— Within the boundaries of the above chart, Morningside's Client Transport routes are limited the following streets, except during emergencies
or if approved routes are closed:
• Balboa Boulevard
• Newport Boulevard
• River Avenue (only between 51st Street and Balboa Boulevard — not the section of River Ave between 45`h and 32nd Street)
• 32"d Street
• Coast Highway
2 — The General Rule for Morningside's Client Transport vans shall be that Morningside shall use major thoroughfares (Newport Boulevard and
Balboa Boulevard) whenever possible, avoiding narrow neighborhood streets such as River Avenue between 45`h and 32"d Street).
3 —Access to Morningside's facility at 112 39th Street shall be from 39`h Street, 40`h Street or 38th Street, and Seashore Drive.
4 — The City and Morningside shall work cooperatively to amend these routes whenever Morningside moves a facility.
SETTLEMENT AGREEMENT AND RELEASE
1. Introduction
This Settlement and Release Agreement ("AGREEMENT") is made and entered
into as of this27th',day of April , 2010 by and between the CITY OF NEWPORT
BEACH (the "CITY") on one hand, and MORNINGSIDE RECOVERY, LLC,
("MORNINGSIDE") on the other. The CITY and MORNINGSIDE are collectively
referred to as the "PARTIES."
2. Definitions
For the purposes of this AGREEMENT only, the following capitalized terms shall
have the following meanings:
2.1 "ACTION" or "ACTIONS" shall refer to all claims, charges, liabilities,
damages, obligations, costs, expenses, rights of action and causes of action, whether
known or unknown, between MORNINGSIDE RECOVERY and the CITY, including
but not limited to the lawsuits captioned Newport Beach v. Morningside Recovery, LLC,
et al., (OCSC No. 07CC11694), and Concerned Citizens of Newport Beach v. City of
Newport Beach, et al., (USDC Case No. CV 08-00192 JVS (RNBx)).
2.2 The "CITY" shall mean the City of Newport Beach, and its City Council,
Boards and Commissions, elected and appointed Officers, Agents, Employees and
Attorneys.
2.3 "CONTROL," "CONTROLLING", "CONTROLLED BY," and "UNDER
COMMON CONTROL WITH" as used in this AGREEMENT shall mean the possession,
direct or indirect, or the power to direct or cause the direction of the management and
policies of a person, whether through the ownership of voting securities, by contract or
otherwise.
2.4 "EFFECTIVE DATE" shall mean the date upon which the PARTIES incur
the rights and obligations of this AGREEMENT, as defined in Paragraph 4, below.
2.5 "MORNINGSIDE" shall refer to the business known as Morningside
Recovery LLC, and its Directors, Trustees, Beneficiaries, Officers, Agents, Employees,
Successors, Heirs, Lessees, Assigns and Attorneys.
2.6 The "ORDINANCE" shall refer to Newport Beach Municipal Ordinance
No. 2008-5.
SETTLEMENT AGREEMENT BY AND BETWEEN
THE CITY OF NEWPORT BEACH AND MORNINGSIDE RECOVERY, LLC
11287-0007\1200955v3.doc
3. Recitals
3.1 WHEREAS the City of Newport Beach is a municipal corporation and
Charter City under the laws of the State of California. On January 8, 2008, the City
Council of the City of Newport Beach conducted a public hearing on a proposed
ordinance modifying the City's municipal code provisions regulating group residential
uses in the City and, thereafter, conducted the first reading of the ORDINANCE.
3.2 WHEREAS, on January 22, 2008, the Newport Beach City Council passed
the ORDINANCE, which, among other things, included provisions requiring then current
operators of certain residential care facilities (as defined in the ORDINANCE) in R-1, R-
1.5, R-2 and MFR Zones to obtain use permits to continue those operations at their pre-
existing locations or to seek alternate forms of relief provided in the ORDINANCE or to
abate those operations within defined time periods.
3.3 WHEREAS MORNINGSIDE is a limited liability company whose
principal place of business is the City of Newport Beach, California. MORNINGSIDE
CONTROLS and operates a facility licensed by the California Department of Alcohol
and Drug Programs capable of housing six individuals in recovery for drug and/or
alcohol abuse located at 112 39th Street in Newport Beach. MORNINGSIDE
CONTROLS and operates non -licensed, non -treatment facilities capable of housing six
individuals in recovery for drug and/or alcohol abuse at 4823 A River Avenue, 4823 B
River Avenue, 5015 A River Avenue, and 5015 B River Avenue in the City of Newport
Beach.
3.4 WHEREAS at the time of the passage of the ORDINANCE,
MORNINSGIDE operated and CONTROLLED, and presently operates and CONTROLS
drug and/or alcohol recovery facilities in R-2 Zones, but failed to file with the CITY an
application for a Use Permit pursuant to the ORDINANCE to continue it operations in
Newport Beach.
3.5 WHEREAS on March 17, 2008, the City of Newport Beach filed its first
amended complaint in the lawsuit in the Orange County Superior Court captioned
Newport Beach v. Morningside Recovery, LLC, et at, (OCSC No. 07CC11694), seeking
to enforce moratorium ordinances enacted while it was developing the ORDINANCE
against MORNINGSIDE.
3.6 WHEREAS on January 22, 2008. a group of Newport Beach residents filed
a lawsuit captioned Concerned Citizens of Newport Beach v. City of Newport Beach, et
at, (USDC Case No. CV 08-00192 JVS (RNBx)), against the operators of sober living
homes in Newport Beach and the CITY.
SETTLEMENT AGREEMENT BY AND BETWEEN
THE CITY OF NEWPORT BEACH AND MORNINGSIDE RECOVERY, LLC
2
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3.7 WHEREAS on February 22, 2008, the CITY filed a cross -claim against
MORNINGSIDE and all the sober living homes named in the lawsuit. The CITY's
cross -claim asserted, among other things, that the ORDINANCE does not, on its face,
violate State of California or federal fair housing laws. On November 2, 2009, the Court
granted the CITY leave to amend its cross -claim to include a claim for injunctive relief,
and to add Barry Saywitz Properties — One LP, as a party.
3.8 WHEREAS MORNINGSIDE has not filed, and does not intend to file, any
complaints regarding the CITY or the ORDINANCE with either the United States
Department of Justice ("DOJ") or Department of Housing and Urban Development
("HUD").
3.9 WHEREAS MORNINGSIDE and the CITY have engaged in a court -
ordered settlement conference before the Honorable Judge Robert N. Block, and desire to
enter into this AGREEMENT to finally, fully, comprehensively and conclusively settle
all ACTIONS between the PARTIES, and all underlying and related contentions and
allegations, by and through this AGREEMENT and through the passage of an ordinance
that would approve a Zoning Implementation and Public Benefit Agreement ("ZONING
AGREEMENT") substantially identical to that document attached hereto as Exhibit "A."
NOW, THEREFORE, in consideration of the above Recitals, covenants and
agreements therein, the PARTIES agree as follows:
4. Effective Date of Agreement
4.1 This AGREEEMENT shall not become effective, and neither party shall
have any rights or obligations hereunder, until the EFFECTIVE DATE. The
EFFECTIVE DATE of this AGREEMENT is:
4.1.1 The thirty-first (31) day after the City Council's passage of the
ordinance approving the ZONING AGREEMENT, or
4.1.2 If a referendum or other elective challenge to the ordinance
approving this AGREEMENT qualifies to be placed on the ballot, then on the thirty-first
(31) day after the City Clerk certifies that the referendum or other elective challenge has
failed to pass, or
4.1.3 If litigation is instituted to challenge this AGREEMENT prior to the
EFFECTIVE DATE, then on the thirty-first (31) day after the litigation is terminated
either by dismissal, or by judgment after it becomes final.
SETTLEMENT AGREEMENT BY AND BETWEEN
THE CITY OF NEWPORT BEACH AND MORNINGSIDE RECOVERY, LLC
11287-0007\1200955v3.doc
5. Release Concurrent With Effective Date
5.1 The CITY shall dismiss its cross -claim filed in the action captioned
Concerned Citizens of Newport Beach v. City of Newport Beach, et al., (Case No. CV
08-00192 JVS (RNBx)), against MORNINGSIDE and supply a Stipulation for Dismissal
(with prejudice) to MORNINGSIDE within three (3) business days of the EFFECTIVE
DATE of this AGREEMENT. The CITY hereby authorizes counsel for
MORNINGSIDE to file the Dismissal with the Court, and counsel for MORNINGSIDE
agrees to file the Stipulation for Dismissal with the Court within seven (7) business days
of the EFFECTIVE DATE of this AGREEMENT.
5.2 In consideration for that dismissal, MORNINGSIDE hereby knowingly and
intelligently waives and relinquishes any right to challenge the facial legality or facial
validity of the ORDINANCE in any court or administrative proceeding and hereby agrees
that, on its face, the ORDINANCE does not violate any state or federal housing laws and
is not discriminatory.
5.3 This release shall be a fully binding and complete settlement of all
ACTIONS between the CITY, MORNINGSIDE, and their Counsel and respective
assigns and successors save only the executory provisions of this AGREEMENT.
5.4 The PARTIES understand that the approval of the ZONING
AGREEMENT is subject to the following:
5.4.1 Conduct of public hearings required by law and the open and
unbiased application of the CITY's police powers to its Planning Commission and City
Council's consideration of that approval.
5.4.2 Referendum power of the City's electorate.
5.4.3 Legal challenge by any interested party.
5.5 Nothing in this AGREEMENT is intended to or shall have the lawful effect
of contracting away the CITY's zoning authority or any other aspect of the CITY's police
power. City Staff and the City Council have previously reviewed the terms and
conditions of the ZONING AGREEMENT, and have concluded that pursuant to
California law and the Newport Beach Municipal Code, City Staff may lawfully present
the ZONING AGREEMENT to the City's Planning Commission and City Council for
approval or disapproval, subject to duly noticed public hearings. City Staff has further
preliminarily concluded that no CEQA analysis shall be required to be completed prior to
the CITY considering approval of the ZONING AGREEMENT.
SETTLEMENT AGREEMENT BY AND BETWEEN
THE CITY OF NEWPORT BEACH AND MORNINGSIDE RECOVERY, LLC
4
11287-000711200955v1doc
5.5.1 The CITY shall schedule public hearings on the ordinance that, if
adopted, would approve the ZONING AGREEMENT. If the City Council fails to
approve the ordinance within thirty (30) days following the conclusion of the public
hearings thereon, this AGREEMENT shall be of no further force or effect.
5.5.2 At the CITY's sole and absolute discretion. the CITY shall timely
file a Notice of Determination, Notice of Exemption, or other appropriate CEQA notice if
the ordinance approving the ZONING AGREEMENT is passed, and shall pay the cost of
any environmental assessment, negative declaration or environmental impact report that
is determined to be required.
5.6 The PARTIES stipulate that the Court retain jurisdiction over the PARTIES
to enforce the settlement until performance in full of the terms of the settlement.
5.7 Except as expressly excluded herein, the CITY and MORNINGSIDE waive
all rights or benefits that they may have under California Civil Code section 1542, with
regard to this AGREEMENT. Civil Code section 1542 provides:
"A general release does not extend to claims which the creditor does
not know or suspect to exist in his or her favor at the time of executing
the release, which if known by him or her must have materially
affected his or her settlement with the debtor."
6. Actions Pending Effectiveness of this Agreement
6.1 The PARTIES agree that prior to the EFFECTIVE DATE of this
AGREEMENT, the PARTIES shall jointly seek to maintain a stay of the litigation
pending in federal court captioned Concerned Citizens of Newport Beach v. City
of Newport Beach, et al., (Case No. CV 08-00192 JVS (RNBx)). During this
same period of time:
6.1.1 The CITY shall not enforce any provision of the
ORDINANCE against MORNINGSIDE.
6.1.2 MORNINSIDE agrees to abide by the Operational Conditions
attached as Exhibit "1" to the ZONING AGREEMENT.
7. Ownership of Released Claims
7.1 The CITY and MORNINGSIDE represent and warrant that none of the
matters or rights released herein has been assigned or transferred, in whole or in part, to
SETTLEMENT AGREEMENT BY AND BETWEEN
THE CITY OF NEWPORT BEACH AND MORNINGSIDE RECOVERY, LLC
5
11287-0007\1200955v3.doc
any person, organization. partnership or any other entity, nor has any person,
organization, partnership or any other entity become subrogated to such rights.
8. All Parties to Bear Own Costs
8.1 The CITY and MORNINGSIDE agree to bear their own attorneys' fees and
costs incurred in connection with this ACTION.
9. Entire Agreement
9.1 This AGREEMENT contains the entire understanding and agreement
between the CITY and MORNINGSIDE with respect to the matters referred to herein.
No other representations, covenants, undertakings or other prior or contemporaneous
agreements, oral or written, respecting those matters, which are not specifically
incorporated herein, may be deemed in any way to exist or to bind any of the PARTIES.
9.2 The CITY and MORNINGSIDE acknowledge that they have not executed
this AGREEMENT in reliance on any such promise, representation or warranty. This
AGREEMENT may not be modified except by a written instrument signed by authorized
representatives of the CITY and MORNINGSIDE.
10. Warranties and Indemnification for Successors in Interest
10.1 This AGREEMENT contains the entire agreement between the CITY and
MORNINGSIDE with regard to the matters set forth herein and shall be binding upon
and inure to the benefit of the executors, administrators, personal representatives, heirs,
successors and assigns of each.
10.2 Without limiting the foregoing, the PARTIES hereby represent and warrant
that the releases herein are expressly made on behalf of all council, boards and
commissions, elected and appointed officers, agents, and employees of CITY, as well as
all owners, partners, agents, employees and affiliates of MORNINGSIDE, and their heirs,
assigns and successors in interest, as well as any affected property owners, their spouses,
children, or any other family member, descendant, heir or assign of MORNINGSIDE.
SETTLEMENT AGREEMENT BY AND BETWEEN
THE CITY OF NEWPORT BEACH AND MORNINGSIDE RECOVERY, LLC
6
11287-000711200955v3.doc
11. Local California Law to Apply
11.1 This AGREEMENT shall be deemed to have been executed and delivered
within the State of California and the rights and obligations of the CITY and
MORNINGSIDE hereunder shall be construed and enforced in accordance with, and
governed by the local law of the State of California.
12. Construction and Waiver of Benefits of Doctrine of Contra Proferentum
12.1 The CITY and MORNINGSIDE have jointly drafted this AGREEMENT.
Hence, the CITY and MORNINGSIDE agree that the terms of this AGREEMENT, or
any of them, shall not be interpreted against or in favor of any party on the ground that
any party participated in the drafting of this AGREEMENT. The CITY and
MORNINGSIDE accordingly expressly and specifically waive the right to benefit from
application of the doctrine of contra proferentum in any subsequent dispute concerning
interpretation of the provisions of this AGREEMENT.
13. Headings
13.1 The various headings of the sections and paragraphs of this AGREEMENT
have been inserted for convenience of reference only and do not affect the meaning or
interpretation of this AGREEMENT or any provision of it.
14. Signatories Authority
14.1 Each and every one of the persons executing this AGREEMENT expressly
warrants that he or she is authorized to do so on behalf of the entity for which he or she is
executing this agreement. The CITY and MORNINGSIDE represent and warrant that
this agreement is executed voluntarily, with full knowledge of its significance.
15. No Admission of Liability
15.1 The CITY and MORNINGSIDE have entered into this AGREEMENT
solely to compromise and settle disputed claims. The signatories do not admit, concede
or otherwise acknowledge liability in this matter. The PARTIES hereto expressly deny
and disclaim any liability or that either has engaged in any wrongful conduct whatsoever.
SETTLEMENT AGREEMENT BY AND BETWEEN
THE CITY OF NEWPORT BEACH AND MORNINGSIDE RECOVERY, LLC
7
1 1287-0007\ 1200955v3. doc
16. Waiver of Breach
16.1 No waiver of any breach of any term or provision of this AGREEMENT
shall be construed to be, or shall be, a waiver of any other breach of this AGREEMENT.
No waiver is binding unless in writing and signed by the party or PARTIES waiving the
breach.
17. Further Documents and Ongoing Duty of Cooperation
17.1 The CITY and MORNINGSIDE and their Attorneys will cooperate in
executing and delivering all documents necessary to effectuate the agreements set forth
herein.
17.2 MORNINGSIDE shall not oppose the CITY's approval of the ZONING
AGREEMENT and shall support, both verbally and in writing, if requested by the CITY,
the approval of the ZONING AGREEMENT.
17.3 MORNINGSIDE shall not file any lawsuits, administrative appeals
pursuant to the CITY's municipal code, or take any other action whatsoever, in whatever
shape or form, to challenge, appeal, or otherwise seek to influence, in any respect,
approval of the ZONING AGREEMENT, with the sole exception of the activity
described in the preceding paragraph (17.2).
18. Execution and Counterparts
18.1 This AGREEMENT may be executed in multiple counterparts, each of
which shall be deemed an original AGREEMENT, and all of which shall constitute one
AGREEMENT. These counterparts may be transmitted by facsimile with the originals to
be thereafter provided by the PARTIES. Such facsimiles shall be deemed original
signatures.
19. Confidentiality
19.1 All PARTIES agree that neither they nor their representatives shall disclose
the terms of this Agreement to any individual or entity not a Party hereto. This
Agreement may be disclosed only if such disclosure is required: (i) in response to an
order of a court of competent jurisdiction; (ii) in response to an inquiry or order issued by
a state or federal agency of competent jurisdiction; (iii) to comply with any reporting
SETTLEMENT AGREEMENT BY AND BETWEEN
THE CITY OF NEWPORT BEACH AND MORNINGSIDE RECOVERY, LLC
8
11287-000711200955v3.doc
obligation of any federal or state law and agency, including without limitation the
Internal Revenue Service or the State Franchise Tax Board; (iv) in response to a request
from the PARTIES' insurers or prospective insurers; (v) in connection with any future
litigation between the PARTIES hereto; (vi) to the PARTIES legal, tax, and financial
advisors; (vii) in order to account to the PARTIES shareholders, partners, or investors; or
(viii) in response to a Public Records Act request made pursuant to section 6253 of the
Government Code.
20. Invalid Clause May Be Severed
20.1 If any provision, clause, or part of the AGREEMENT is adjudged illegal,
invalid or unenforceable, the balance of this AGREEMENT shall remain in full force and
effect.
CROSS-CLAIMANT:By:
KEITH D. CURRY
The CITY OF NEWPORT BEACH
MAYOR, CITY OF NEWPORT BEACH
Date:
APPROVED AS TO FORM AND CONTENT
By:
PAT( K. BOBKO
RIC ARDS, WATSON & GERSHON Attorneys for CROSS -CLAIMANT
Date: Writ 90
[MORE SIGNATURES FOLLOW}
SETTLEMENT AGREEMENT BY AND BETWEEN
THE CITY OF NEWPORT BEACH AND MORNINGSIDE RECOVERY, LLC
9
11287-0007\1200955v3.doc
CROSS-bl
By: l
JEFFREY {YAIE'
MORNINGSII3E. OVI
Title: PRESIDENT
Date: j
By:
CAACE BRUC
MO INGSIDE RECOVERY, LLC
Title: CHIEF EXECUTIVE OFFICER
Date:
APPROVED AS TO FORM AND CONTENT
By:
MARY HELEN BEATIFICATO
BEATIFICATO & ASSOCIATES, Attorneys for CROSS -DEFENDANT
Date:
SETTLEMENT AGREEMENT BY AND BETWEEN
THE CITY OF NEWPORT BEACH AND MORNINGSIDE RECOVERY, LLC
10
I I287-0007\I200955v3.doc
G IG NAL
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CROSS-D
Bv:
JEFFREY yYA
MORNINGS' S OVEfl. LLC
Title: PRESIDENT
Date:
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CANACEBRUCE
MORNINGSIDE RECOVERY, LLC
Title: CHIEF EXECUTIVE OFFICER
Date:
APPROVED AS TO4QR.M AND CONTENT
By:
MARY HELEN EA
BEATIFICATr
& iSSOCIATES, Attorneys for CROSS -DEFENDANT
Date:
0-1 ID
SETTLEMENT AGREEMENT BY AND BETWEEN
THE CITY OF NEWPORT BEACH AND MORNINGSIDE RECOVERY, LLC
10
11287-000711200955 v3.doc
OR1Gi.. SAL
(EXHIBIT "A")
ZONING IMPLEMENTATION
AND PUBLIC BENEFIT AGREEMENT
(Pursuant to California Government Code §§ 65864-65869.5)
This Zoning Implementation and Public Benefit Agreement (the "ZONING
AGREEMENT") is entered into on , 2010, by and between the
CITY OF NEWPORT BEACH, a charter city ("CITY") on the one hand, and
MORNINGSIDE RECOVERY, LLC, ("MORNINGSIDE") on the other. The
CITY and MORNINGSIDE are collectively referred tows the "PARTIES."
I.
Recitals
A. The City Council hereby finds this ZONING AGREEMENT is
consistent with the provisions of California Government Code §65867, the City of
Newport Beach Municipal Code Chapter 15.45, and the City's General Plan.
B. On , 2010, the City's Planning Commission held a
public hearing on this ZONING AGREEMENT, made findings and
determinations with respect to this ZONING AGREEMENT, and recommended to
the City Council that the City Council approve this ZONING AGREEMENT.
C. On , 2010, the City Council also held a public hearing
on this ZONING AGREEMENT and considered the Planning Commission's
recommendations and testimony and information submitted by City staff,
MORNINGSIDE, and members of the public. On , 2010, pursuant to
applicable state law (California Government Code §§ 65864-65869.5) and local
law (City of Newport Beach Municipal Code Chapter 15.45), the City Council
passed its Ordinance No. finding this ZONING AGREEMENT to be
consistent with the City of Newport Beach General Plan and approving this
ZONING AGREEMENT.
II.
Definitions
The following terms when used in this ZONING AGREEMENT shall have
the meanings set forth below:
A. "BLOCK" shall mean an area that is bounded on all sides by streets.
In the Peninsula Zone, a BLOCK length is 617 feet, which is the calculable
median block length within the City of Newport Beach's Nonstandard Subdivision
Areas.
B. "CITY" shall mean the City of Newport Beach and its City Council.
C. "CLIENT" (or "CLIENTS") shall mean any persons residing at any
MORNINGSIDE FACILITY for the purpose of recovering from drug and/or
alcohol abuse.
D. "CONTROL" (including the terms "controlling," "controlled by,"
and "under common control with,") shall mean the possession, direct or indirect,
of the power to direct or cause the direction of the management and policies of a
person, whether through the ownership of voting securities, by contract, or
otherwise.
E. "FACILITY" (or "FACILITIES") is a residential unit used or
occupied by persons in recovery from alcoholism and/or drug abuse. Facilities
may be "licensed facilities" or unlicensed "sober living homes." As used in this
AGREEMENT, all facilities constitute "residential care facility" uses within the
context of the City's zoning ordinance.
D. "GENERAL PLAN" shall mean the 2006 General Plan adopted by
the City Council on July 25, 2006, by Resolution No. 2006-76. The Land Use
Plan of the Land Use Element of the General Plan was approved by Newport
Beach voters in a general election on November 7. 2006.
E. "LICENSED FACILITIES" shall mean alcoholism and drug abuse
recovery facilities licensed by the California Department of Alcohol and Drug
Programs ("ADP").
F. "PARTY" or "PARTIES" shall mean either the CITY or
MORNINGSIDE or any of MORNINGSIDE's affiliates or both, as determined by
the context.
G. "PROPERTY" or "PROPERTIES" shall mean MORNINGSIDE's
facilities at 112 39th Street, 4823 A River Avenue, 4823 B River Avenue, 5015 A
River Avenue, 5015 B River Avenue, and 29 Ima Loa Court in Newport Beach.
Additionally, this AGREEMENT may apply to parcels not yet identified upon
which MORNINGSIDE may operate facilities pursuant to this AGREEMENT in
the future.
1193897-7
Momingside Recovery, LLC Zoning Agreement
Exhibit "A" to Settlement Agreement
2
H. "SOBER LIVING HOMES" shall mean alcoholism and/or drug
abuse recovery facilities that are not licensed by the ADP.
I. "7-and-OVER" shall mean any FACILITY licensed by the ADP to
house more than 7 persons in recovery for drug and/or alcohol abuse.
III.
Agreement
A. Terms of Agreement.
This ZONING AGREEMENT allows MORNINGSIDE a vested right to
the following:
1193897-7
1.)
MORNINGSIDE may operate FACILITIES housing up to thirty-
six (36) CLIENTS in Newport Beach pursuant to certain
operational guidelines described more particularly in Exhibit "1"
attached hereto. Except as described in Section A (3), below,
MORNINGSIDE may not exceed 36 CLIENTS in Newport
Beach.
2.) MORNINGSIDE may house up to 30 of its 36 total CLIENTS in
the Newport Beach "Peninsula Zone." The Peninsula Zone is
more particularly defined in Exhibit "2" attached hereto;
3.) MORNINGSIDE can exceed its 36 CLIENT maximum only by
acquiring 7-and-OVER FACILITIES that have obtained use
permits under Chapter 20.91A of the Newport Beach Municipal
Code.
4.) MORNINGSIDE shall conduct its OPERATIONS in Newport
Beach in conformance with the Operational Guidelines attached
hereto as Exhibit "1."
5.) MORNINGSIDE will comply with the following dispersal and
distancing requirements for its FACILITIES in Newport Beach:
a. Only one (1) treatment home or sober living facility (licensed
or unlicensed by ADP) is allowed per BLOCK, and no
FACILITIES facing each other;
Morningside Recovery, LLC Zoning Agreement
Exhibit "A" to Settlement Agreement
3
b. No FACILITIES (licensed or unlicensed by ADP) within
1000 feet of elementary schools or large, licensed day-care
facilities.
B. Significant Public Benefits. The significant public benefits that this
ZONING AGREEMENT provides include, but are not limited to, the following:
1.) Settlement and avoidance of litigation costs, including the
continued expenditure of attorneys' fees;
2.) Preservation of the regulatory ordinance that was the subject
matter of this lawsuit;
3.) Avoidance of potential federal administrative proceedings;
4.) A reduction and limitation on the size of a residential care
operation in Newport Beach, including a limitation on
LICENSED FACILITIES;
5.) Dispersal of LICENSED FACILITIES and SOBER LIVING
HOMES to reduce the concentration thereof in the City's
residential districts;
6.) The placement of operational controls on said FACILITIES to
reduce the perceived negative impacts on the City's residential
neighborhoods;
C. General Plan Consistency and Zoning Implementation. This
ZONING AGREEMENT and the regulations applied herein to MORNINGSIDE
will cause the City of Newport Beach's zoning and other land use regulations to
remain consistent with the GENERAL PLAN.
D. Warranties and Representations. Both PARTIES represent they
have legal authority to enter into this ZONING AGREEMENT and the remainder
of the agreements and documents that comprise the settlement documents herein,
and that the necessary authorizations have been obtained, by resolution or other
action, and that the persons whose names appear as signatories below were
authorized to accept this ZONING AGREEMENT on behalf of the PARTY under
whose name they signed.
1193897-7
Morningside Recovery, LLC Zoning Agreement
Exhibit "A" to Settlement Agreement
4
1.)
Each PARTY specifically represents and warrants that it has the
legal authority to enter into a ZONING AGREEMENT of the
type and kind herein, and,
2.) The City of Newport Beach represents and warrants that this
ZONING AGREEMENT and the regulations applied to
PROPERTY are:
a. Consistent with the GENERAL PLAN for the City of
Newport Beach and any Specific Plans that apply to the area
in which any portion of MORNINGSIDE's PROPERTIES
are located, and;
b. Consistent with the Local Coastal Land Use Plan ("CLUP")
for the City of Newport Beach and that the CLUP has been
approved by the California Coastal Commission.
E. Operation of Property; Applicable Regulations. Other than as
expressly set forth in this ZONING AGREEMENT, during the term of this
ZONING AGREEMENT, the terms and conditions concerning the operation of
the PROPERTIES, including but not limited to the permitted uses, density,
intensity of use, and the location of buildings involved, shall be those set forth in
the City of Newport Beach's ordinances and regulations, and the City of Newport
Beach shall not prevent operation of the PROPERTIES in compliance with the
applicable regulations and all other applicable laws and regulations in Section I,
below.
F. Vested Rights. During the term of this ZONING AGREEMENT,
except to the extent the City of Newport Beach reserves its discretion as expressly
set forth in this ZONING AGREEMENT or in the applicable regulations and all
other applicable laws and regulations specified in Section I, MORNINGSIDE
shall have the vested right, within the limits and constraints of the applicable
regulations, to conduct OPERATIONS of LICENSED FACILITIES and SOBER
LIVING HOMES at its PROPERTIES In the event Ordinance 2008-5 is repealed
by action of the City Council of the City of Newport Beach or the electorate, or if
a court of competent jurisdiction declares the Ordinance invalid or unenforceable,
this AGREEMENT shall remain in full force and effect.
G. Police Power. In all respects not provided for in this ZONING
AGREEMENT, the City of Newport Beach shall retain full rights to exercise its
police power to regulate the operation of residential care facilities on the
1193897-7
Morningside Recovery, LLC Zoning Agreement
Exhibit "A" to Settlement Agreement
5
PROPERTIES provided such powers are applied consistently with the provisions
of state law and the terms of this AGREEMENT.
H. No Conflicting Enactments. During the term of this ZONING
AGREEMENT the City of Newport Beach shall not apply to the PROPERTIES
any City -adopted ordinance, policy, rule, regulation, or other measure relating to
OPERATION of the FACILITIES to the extent it conflicts with this ZONING
AGREEMENT.
I. Reservations of Authority. Notwithstanding any provisions set forth
in this ZONING AGREEMENT to the contrary, the laws, rules, regulations, and
official policies set forth herein shall apply to and govern OPERATIONS at the
PROPERTIES:
1.)
Procedural Regulations. Then current 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 they are adopted and applied Citywide.
2.) Consistent City Regulations. Newport Beach City ordinances,
resolutions, regulations, and official policies governing
development and building that do not conflict with the
AGREEMENT, or where MORNINGSIDE has consented in
writing to the regulations, shall apply to the PROPERTIES.
3.) Public Health and Safety. Any Newport Beach City ordinance,
regulation, rule, program, or official policy of general application
that is necessary to protect persons on the PROPERTIES or in
the immediate community from conditions dangerous to their
health or safety, shall apply to the PROPERTIES. The City of
Newport Beach may unilaterally enact any ordinance, regulation,
rule, program, or official policy of general application necessary
to protect persons from conditions dangerous to their health of
safety.
J. No Agency. Neither PARTY is acting as the agent of the other in
any respect. Each PARTY is an independent contracting entity with respect to the
terms, covenants, and conditions contained in this ZONING AGREEMENT. This
ZONING AGREEMENT forms no partnership, joint venture, or other association
of any kind. The only relationship between the PARTIES is that of a government
1193897-7
Momingside Recovery, LLC Zoning Agreement
Exhibit "A" to Settlement Agreement
6
entity regulating the operation of private property by the owner or lessee of the
property.
K. Effective Date. This ZONING AGREEMENT shall not become
effective, and except as set forth in subsection (1) of this Section, neither PARTY
shall have any rights or obligations hereunder, until the "Effective Date."
1.) This ZONING AGREEMENT shall become effective on:
a. The 91 st day following the City Council of the City of
Newport Beach's passage of the ordinance approving this
ZONING AGREEMENT, or
If a referendum or other elective challenge to the ordinance
approving this ZONING AGREEMENT qualifies for the
ballot, then on the 31st day after the City Clerk of the City of
Newport Beach certifies that the referendum or other
elective challenge has failed to pass, or
c. If litigation is initiated to challenge this ZONING
AGREEMENT prior to the Effective Date established in
accordance with Section K (1) (a), and (b), above, then on
the 31st day after the litigation has terminated, or the time
for appeal has expired, and the legal challenge has been
unsuccessful.
2.) The term of this ZONING AGREEMENT shall commence on
the Effective Date and shall expire at the conclusion of the 25th
year thereafter. However in no event shall the term of this
ZONING AGREEMENT exceed thirty (30) years after its
execution.
3.) Stay of Ordinance 2008-5 Pending Effective Date. Prior to the
effective date of the ordinance adopting this ZONING
AGREEMENT, or that date upon which it becomes clear that
there will be no Effective Date, whichever is later, the CITY
shall not otherwise enforce the provisions of Ordinance 2008-5
against MORNINGSIDE or its AFFILIATES.
L. Amendment or Cancellation of the Zoning Agreement. Other than
modifications of this ZONING AGREEMENT under section I subsection (3) of
this ZONING AGREEMENT, this ZONING AGREEMENT may be amended or
1193897-7
Morningside Recovery, LLC Zoning Agreement
Exhibit "A" to Settlement Agreement
7
cancelled in whole or in part only by mutual written and executed consent of the
PARTIES in compliance with California Government Code section 65868, and
City of Newport Beach Municipal Code section 15.45.070.
M. Enforcement. Unless amended or cancelled as provided in Section
L, above, or modified or suspended pursuant to California Government Code
section 65869.5, this ZONING AGREEMENT is enforceable by either PARTY
despite any change in any applicable GENERAL PLAN or Specific Plan, zoning,
subdivision, or building regulation, or other applicable ordinance or regulation
adopted by the City (including by the City's electorate,) that purports to apply to
any or all of the PROPERTIES.
N. Periodic Review of Compliance. CITY and MORNINGSIDE shall
each comply in good faith with the terms of this ZONING AGREEMENT. The
PARTIES shall review this ZONING AGREEMENT at least once every 12
months from the Effective Date for good faith compliance with its terms,
consistent with Government Code sections 65865 and 65865.1 and City of
Newport Beach Municipal Code section 15.45.080. At the reviews,
MORNINGSIDE shall document the current status of its OPERATIONS.
MORNINGSIDE also agrees to furnish evidence of good faith compliance with
this AGREEMENT as the CITY may require in the reasonable exercise of its
discretion, and after reasonable notice to MORNINGSIDE. On or before
December 31st and June 30th of each year during the term of this ZONING
AGREEMENT, MORNINGSIDE shall submit a Compliance Review Report,
whose template is attached hereto as Exhibit "3." The requirement of good faith
compliance shall be met upon the submittal to the CITY of an accurate
Compliance Review Report showing information relating to facility locations and
the number of CLIENTS at each MORNINGSIDE FACILITY. The CITY shall
have the right to audit the accuracy of the Compliance Review Report through the
on -site inspections of MORNINGSIDE's FACILITIES at mutually agreeable
times during regular business hours.
O. Events of Default.
1.)
1193897-7
Default by Morningside. Pursuant to California Government
Code section 65865.1, if the CITY determines that
MORNINGSIDE has not complied in good faith with its
obligations pursuant to this ZONING AGREEMENT, the CITY
shall by written notice to MORNINGSIDE specify the manner in
which MORNINGSIDE has failed to comply and state the steps
MORNINGSIDE must take to bring itself into compliance. If
MORNINGSIDE does not commence compliance within thirty
Morningside Recovery, LLC Zoning Agreement
Exhibit "A" to Settlement Agreement
8
1193897-7
(30) days after receipt of written notice from the CITY
specifying the manner in which MORNINGSIDE has failed to
comply and diligently pursue steps to achieve full compliance,
then MORNINGSIDE shall be deemed to be in default under the
terms of this ZONING AGREEMENT. The CITY may then
seek available remedies as provided in subsections (3) and (4),
below.
2.) Default by City. If the CITY has not complied with any of its
obligations and limitations under this ZONING AGREEMENT,
MORNINGSIDE shall by written notice to the CITY specify the
manner in which the CITY has failed to comply and state the
steps necessary for the CITY to bring itself into compliance. If
the CITY does not commence compliance within thirty (30) days
after receipt of the written notice from MORNINGSIDE
specifying the manner in which the CITY has failed to comply
and diligently pursue steps to achieve full compliance, then the
CITY shall be deemed to be in default under the terms of this
ZONING AGREEMENT. MORNINGSIDE may then seek a
specific performance or similar equitable remedy as provided in
subsection (3) of Section 0, below.
3.) Specific Performance and Damages Remedies. The PARTIES
acknowledge that remedies at law are generally inadequate and
that specific performance is appropriate for the enforcement of
this ZONING AGREEMENT. The remedy of specific
performance or, in the alternative, a writ of mandate, shall be the
sole and exclusive remedy available to either PARTY in the
event of the default, or alleged default, by the other. Prior to
exercising such a remedy, the PARTY seeking to do so shall
submit the matter to non -binding arbitration through JAMS or
another mutually acceptable arbitrator.
4.) Recovery of Legal Expenses by Prevailing Party in Any Action.
In any judicial proceeding between the PARTIES that seeks to
enforce the provisions of this ZONING AGREEMENT, the
prevailing party shall recover all of its actual and reasonable.
costs and expenses. These costs and expenses shall include
expert witness fees, attorneys' fees, and costs of investigation
and preparation before the initiation of the action. The right to
recover these costs and expenses shall accrue upon initiation of
the action.
Momingside Recovery, LLC Zoning Agreement
Exhibit "A" to Settlement Agreement
9
P. Cooperation. Each PARTY covenants to take all reasonable actions
and execute all documents that may be necessary to achieve the purposes and
objectives of this ZONING AGREEMENT.
Q. Force Majeure. Neither PARTY shall be deemed to be in default
where failure or delay in performance of any of its obligations under this ZONING
AGREEMENT is caused, through no fault of the PARTY whose performance is
prevented or delayed, by floods, earthquakes, other acts of God, fires, war, riots or
other hostilities, strikes or other labor hostilities, state or federal regulations, or
court actions.
R. Third Party Legal Challenge. If a third party brings a legal action
challenging the validity or enforceability of any provision of this ZONING
AGREEMENT or the applicable regulations or the manner in which the ordinance
approving this ZONING AGREEMENT was processed and approved, including
the application of the California Environmental Quality Act ("CEQA") to that
process, the PARTIES shall defend the third party challenge jointly, and each
party shall be responsible for its legal expenses incurred in connection with the
challenge, except that either or both parties may seek recovery of all legal
expenses from the third party challenger.
S. Right to Assign. MORNINGSIDE shall have the right to transfer or
assign the rights and obligations contained herein in whole to any person,
partnership, joint venture, firm, or corporation at any time during the term of this
ZONING AGREEMENT without the consent of the CITY. Upon the effective
date of any such transfer or assignment, the transferor -assignor shall notify the
CITY of the name and address of the transferee. Any assignment of this ZONING
AGREEMENT must be pursuant to a sale or transfer of MORNINGSIDE's rights
in their entirety. Any sale or transfer of the PROPERTY shall include the
assignment and assumption of the rights, duties, and obligations arising from this
ZONING AGREEMENT to the transferee with respect to all of the
PROPERTIES. MORNINGSIDE shall no longer be obligated under this
ZONING AGREEMENT for the PROPERTY if MORNINGSIDE is not in default
under this ZONING AGREEMENT at the time of the sale or transfer.
T. Zoning Agreement Binding on Successors and Assigns. The
burdens of this ZONING AGREEMENT are binding upon, and the benefits of this
ZONING AGREEMENT shall inure to, all successors in interest of the parties to
this ZONING AGREEMENT.
1193897-7
Morningside Recovery, LLC Zoning Agreement
Exhibit "A" to Settlement Agreement
10
U. Estoppel Certificate. At any time, either PARTY may deliver
written notice to the other PARTY that the PARTY certify in writing that, to the
best of its knowledge:
1.) This ZONING AGREEMENT is in full force and effect and is
binding on the PARTY;
2.) This ZONING AGREEMENT has not been amended or
modified either orally or in writing. If this ZONING
AGREEMENT has been amended, the PARTY providing the
certification shall identify the amendments; and,
3.) The requesting PARTY is not in default in the performance of its
obligations under this ZONING AGREEMENT. If the
requesting PARTY is in default, the other PARTY must describe
the nature of the default.
The requesting PARTY shall execute and return the certificate within sixty
(60) days following receipt. Any assignee of a PARTY's rights and obligations
hereunder, as referred to in this Section, shall be entitled to rely on the certificate.
V. Further Actions and Instruments. Each PARTY shall cooperate with
and provide reasonable assistance to the other PARTY to the extent consistent
with and necessary to implement this ZONING AGREEMENT. Upon the request
of a PARTY at any time, the other PARTY shall promptly execute, with
acknowledgement or affidavit if reasonably required, and file or record the
required instruments and writings and take any actions as may be reasonably
necessary to implement this ZONING AGREEMENT or to evidence or
consummate the transactions contemplated by this ZONING AGREEMENT.
W. Notices. Any notice or demand that shall be required or permitted
by law or any provision of this ZONING AGREEMENT shall be in writing. If the
notice or demand will be served upon a PARTY, it shall be personally served to
the PARTY; deposited in the U.S. Mail, certified, return receipt requested, and
postage prepaid; or delivered by a reliable courier service that provides a receipt
showing date and time of delivery with courier charges prepaid. The notice or
demand shall be addressed as follows:
1193897-7
To City:
City of Newport Beach
3300 Newport Boulevard
Post Office Box 1768
Newport Beach, California 92663-3884
Morningside Recovery, LLC Zoning Agreement
Exhibit "A" to Settlement Agreement
11
With a copy to:
To Operator:
With a copy to:
Attn: City Manager
Fax: 949-644-3020
City Attorney
City of Newport Beach
3300 Newport Boulevard
Post Office Box 1768
Newport Beach, California 92663-3884
Morningside Recovery, LLC
3404 A Via Lido
Newport Beach, California 92663
(949) 675-0006
Mary Helen Beatificato
Beatificato & Associates, APC
28562 Oso Parkway, Ste. D-424
Rancho Santa Margarita, California
92688
Either PARTY may change the address stated in this Section by notice to
the other PARTY in the manner provided in this Section, and notices shall be
addressed and submitted to the new address. Notice shall be deemed to be
delivered upon the earlier of: (a) the date received; or (b) three business days after
deposit in the mail as provided above.
X. Rules of Construction and Miscellaneous Terms.
1.)
Rules of Construction. The singular includes the plural; the
masculine and neuter include the feminine; "shall" is mandatory;
"may" is permissive.
2.) Time is of the essence. Time is of the essence regarding each
provision of this ZONING AGREEMENT in which time is an
element.
3.) Waiver. Failure by a PARTY to insist upon the strict
performance of any of the provisions of this ZONING
AGREEMENT by the other PARTY, and failure by a PARTY to
exercise its rights upon a default by the other PARTY, shall not
constitute a waiver of that PARTY's right to demand strict
compliance by the other PARTY in the future.
Morningside Recovery, LLC Zoning Agreement
Exhibit "A" to Settlement Agreement
1193897-7 12
1193897-7
5.) Counterparts. This ZONING AGREEMENT may be executed in
two or more counterparts, each of which shall be identical and
may be introduced in evidence or used for any other purpose
without any other counterpart, but all of which shall together
constitute one and the same ZONING AGREEMENT.
6.) Entire Agreement. Except for the Settlement Agreement, this
ZONING AGREEMENT constitutes the entire agreement and
supersedes all prior agreements and understandings, both written
and oral, between the PARTIES with respect to the subject
matter addressed in this ZONING AGREEMENT.
7.) Construction. This ZONING AGREEMENT has been drafted
after extensive negotiation and revision. Both the CITY and
MORNINGSIDE are sophisticated parties who were represented
by independent counsel throughout these negotiations. The
CITY and MORNINGSIDE each agree and acknowledge that the
terms of this ZONING AGREEMENT are fair and reasonable,
taking into account their respective purposes, terns, and
conditions. This ZONING AGREEMENT shall therefore be
construed as a whole consistent with its fair meaning, and no
principle or presumption of contract construction or
interpretation shall be used to construe the whole or any part of
this ZONING AGREEMENT in favor of, or against, either
PARTY.
8.) No Third Party Beneficiaries. The only parties to this ZONING
AGREEMENT are the CITY and MORNINGSIDE. This
ZONING AGREEMENT does not involve any third party
beneficiaries, and it is not intended and shall not be construed to
benefit or to be enforceable by any other person or entity.
9.) Applicable Law and Venue. This ZONING AGREEMENT shall
be construed and enforced consistent with the internal laws of the
State of California. Any action arising under this ZONING
AGREEMENT or brought by any PARTY for the purpose of
enforcing, construing, or determining the validity of any
provision of this ZONING AGREEMENT shall be filed and tried
in the Superior Court of the County of Orange, State of
California, or the United States District Court for the Central
Morningside Recovery, LLC Zoning Agreement
Exhibit "A" to Settlement Agreement
13
1193897-7
District of California. The PARTIES waive all provisions of law
providing for the removal or change of venue to any other court.
10.) Section Headings. All section headings and subheadings are
inserted for convenience only and shall not affect construction or
interpretation of this ZONING AGREEMENT.
11.) Authority to Execute. The persons executing this ZONING
AGREEMENT warrant and represent that they have they have
the authority to execute this ZONING AGREEMENT on behalf
of the entity for which they are executing this ZONING
AGREEMENT. They further warrant and represent that they
have the authority to bind their respective PARTIES to the
performance of its obligations under the ZONING
AGREEMENT.
CITY:
CITY OF NEWPORT BEACH
By:
Keith D. Curry
Title: MAYOR of Newport Beach
MORNINGSIDE RECOVERY, LLC
By:
JEFFREY YATES
Title: President
MORNINGSIDE RECOVERY, LLC
By:
CANDACE BRUCE
Title: Chief Executive Officer
Momingside Recovery, LLC Zoning Agreement
Exhibit "A" to Settlement Agreement
14
1193897-7
APPROVED AS TO FORM:
By:
David R. Hunt
Title: CITY ATTORNEY
CITY OF NEWPORT BEACH
ATTEST:
By:
Leilani Brown
Title: CITY CLERK
CITY OF NEWPORT BEACH
Morningside Recovery, LLC Zoning Agreement
Exhibit "A" to Settlement Agreement
15
Exhibit "1" to Zoning Agreement
City of Newport Beach
Morningside Recovery, LLC
EXHIBIT "1"
OPERATIONAL CONDITIONS
for
MORNINGSIDE RECOVERY, LLC
1. Occupancy Level. The operator of Morningside Recovery, LLC, hereinafter
referred to as "Operator," is limited to housing a total of thirty-six (36) clients in
recovery from drug and alcohol abuse in the City of Newport Beach, and shall
limit occupancy of its current facilities to the following:
a. 4823 A River Avenue — 6 client maximum
b. 4823 B River Avenue — 6 client maximum
c. 5015 A River Avenue — 6 client maximum
d. 5015 B River Avenue — 6 client maximum
e. 112 39`n Street — 6 client maximum
f 29 Ima Loa Court — 6 client maximum
The above occupancy levels reflect a maximum of thirty (30) clients in the
Peninsula Zone and a maximum of six (6) outside of the Peninsula Zone. The
boundaries of the Peninsula Zone are more particularly defined in Exhibit "2" of
the corresponding Zoning Agreement. Operator may move clients from the above
properties into other properties but must maintain the 30 client cap in the
Peninsula Zone and 36 total client cap citywide, provided that Operator maintain
the dispersion standards in Section III A, subsections 5 (a) & (b) of the Zoning
Agreement.
2. Staffing. Operator shall have enough staff to appropriately and responsibly
manage each facility; including at least one qualified manager on -site or on -call at
all times (24 hours a day, seven days each week).
3. Governmental Referrals. Operator shall not provide any services to any client or
house any client who has been referred or caused to be referred to a Morningside
Recovery facility by any governmental agency, including but not limited to
probationers or parolees, due to the limitations that Section 509.9 of the California
Building Code places on Group I and R occupancies.
11287-0007\1204428v1.doc
Exhibit "2" to Settlement Agreement
City of Newport Beach
Morningside Recovery, LLC
4. Assembly Uses. Assembly uses are prohibited in these facilities, except those that
are limited solely to client residents of the facility and facility staff (and in some
cases small meetings of a client's family members with facility staff).
5. Medical Waste. Any and all medical waste generated through the operation of
the facility shall be disposed of in accordance with the City of Newport Beach's
Municipal Code, all other laws and best industry standards and practices.
6. Trash and Trash Enclosures. Operator shall comply with City code provisions
pertaining to trash enclosures, and if directed by the Planning Director, shall
secure and maintain commercial bin service at the subject properties. Operator
shall provide a sufficient number of plastic trash cans with sealable covers to
contain all of the refuse generated by the facility, which are to be used at all times.
Trash cans shall be put out for pick up no earlier than 7.00 p.m. and before 8:00
p.m. on the evening before trash collection day, and shall be put back within the
property by 6:00 p.m. on the day of collection.
7. Smoking and Tobacco Products. Per NBMC Section 20.91A.050(A), no clients,
guests, or any other users of the subjectproperty may smoke in an area from
which the secondhand smoke may be detected on any parcel other than the parcel
upon which the use is located. Operator shall use its best efforts to contain
secondhand smoke generated by patients, clients, customers, and staff within the
lot line of the subject property. In addition, Operator will not allow clients, staff,
or residents to litter cigarette butts on the ground, floor, deck, sidewalk, gutter,
boardwalk or street. Operator's administrators and managers shall use their best
efforts to ensure that its clients comply with the City's prohibition on clients'
tobacco use on beaches, boardwalks, and piers (NBMC § 11.08.080). This
includes any meetings Morningside's clients participate in "off -site."
8. Parking. Operator shall keep garages and other parking spaces at its facilities
open and available for parking for staff, and visiting family members' vehicles,
cleaning persons' vehicles, and client transport vans at all times Clients to the
facility are not permitted to have personal vehicles at the facility.
9. Client Transport. Operator shall ensure that loading and unloading of passengers
of the facility's transportation van shall occur only in open parking spaces or
garage spaces. The van driver is prohibited from stopping or double-parking in a
traffic lane to load and unload passengers. In addition, client drivers shall respect
all City rules regarding parking and/or stopping and waiting to load residents.
Client transport vehicles shall not block adjacent alleys or street ends. Client
drivers shall not leave vehicles in reverse gear if reverse has an audible back-up
11287-0007\1204428v1.doc
Exhibit "2" to Settlement Agreement
City of Newport Beach
Momingside Recovery, LLC
warning sound. Client drivers shall speak to residents at a level protective of
neighborhood peace, cognizant of the hour, to avoid waking neighbors.
10. Profanity and Lewd Behavior. Operator shall not tolerate lewd behavior, lewd
speech, or profanity at the subject property. Profanity at a level audible to
neighboring residents may result in an administrative citation issued by the City
upon the property owner and operator.
11. Noise. Operator shall strictly adhere to the City's noise standards (NBMC
§10.26.025; 10.26.030). Operator shall be responsible for minimizing clapping,
stomping, or other noises at meetings or gatherings at the subject property,
consistent with NBMC § 10.26.030.
12. Route Plans. Operator shall adhere to the Route Plans for transport of its staff,
residents, clients, and customers. The Route Plans for all Morningside facilities
are attached hereto as "Exhibit 4." Short-term interruptions, such as medical
emergencies or street maintenance beyond Operator's control, are allowable
modifications to the Route Plans.
13. Deliveries. Staff members in their private vehicles may deliver business products
and other packages and goods to the facility during weekdays between the hours
of 9:00 a.m. to 5:00 p.m.
14. Hotline. Operator shall establish, provide public notice of, and operate a hotline
for receiving inquiries and/or complaints in reference to its operation of its facility.
The phone number need not be staffed 24 hours a day seven days a week, but
callers should be responded to within the next 24-hour period. Alternatively, the
Operator shall provide area residents and the City with a contact name, phone
number, and e-mail address that is available 24 hours a day, seven days each
week. This contact shall be available to assist residents and the City with any
problems or concerns arising from the facility. E-mails or messages left for the
Operator's designated contact shall be returned promptly within a 24-hour period
from receipt.
15. Stakeholder Group. Upon invitation by the City, Operator shall participate in the
activities of any stakeholder committee or group established by the City to address
complaints and concerns of residents of the City regarding the operation of
Residential Care Facilities in the City.
16. Persons per Bedroom. Operator shall not allow more than three clients to sleep
in one bedroom.
11287-000711204428v1.doc
Exhibit "2" to Settlement Agreement
City of Newport Beach
Morningside Recovery, LLC
17. Building and Zoning. Operator recognizes that each of its facilities have specific
setbacks from the side yards, front yard, and/or back yards per the City's Building
and Zoning Codes. Operator will keep these setbacks clear of obstruction,
including building obstruction. The orderly storage of trashcans is acceptable in
setbacks.
18. Facility Nuisances. The subject properties shall not be unsafe, unsightly or
poorly maintained. If Operator receives a nuisance violation from the City in
regards to any of these issues, Operator shall correct the violation within seven
days or contact the City directly to negotiate a mutually agreeable timeline.
19. Beaches and Other Common Gathering Areas. Operator's use of the beaches
for meetings, prayer, conversation, or other gatherings shall show due respect to
non-resident visitors, residents, and other beachgoers, thus allowing them to take
full enjoyment of the beach. Operator shall not conduct business on the beach (per
NBMC § 10.08.030).
20. Federal, State and Local Laws. Operator shall comply with all federal, state,
and local laws. The issuance of this use permit shall not constitute a waiver of the
requirements of any federal, state or local law, including the requirements of the
California Building Code.
21. Affidavit of Disability. The Operator shall execute an affidavit declaring that all
clients receiving services from this facility are disabled persons, as that term is
defined by federal and state fair housing laws.
11287-0007\1204428v1.doc
Exhibit "2"
Depiction and Description of "Peninsula Zone"
Depiction of Peninsula Zone:
Description of Peninsula Zone:
Starting at the mouth of the Santa Ana River:
• The land area southerly of the Newport and Seminouk Sloughs known as Newport Shores, and
• The land coastward of Pacific Coast Highway to Newport Boulevard known as Balboa Coves, West
Newport Beach, Lido Sands, and Newport Island; and
• The land southerly of a line extending along the Federal Navigational Channel between Newport
Boulevard and the Newport Harbor Jetty, known as the Balboa Peninsula, Lido Peninsula, Lido Isle,
Bay Island, and Cannery Village; and
• Southward on Newport Boulevard about 50 feet to Lower Newport Bay; and
• All lands southerly of Lower Newport Bay between Newport Boulevard down the Federal Navigational
Channel within the Lower Bay, inclusive of Lido Isle and Bay Island and inclusive of the Balboa
Peninsula.
Exhibit "3" to the Zoning Agreement
Compliance Report Template
(Date Report Submitted)
This form covers the period of (month, day) through
20 .
(month, day),
During the above period, Morningside Recovery, LLC, managed or controlled the following
facilities in Newport Beach:
Property Address
Peninsula
Zone?
(Y or N)
Bed Count
Peninsula
Off Peninsula
ADP
License?
(Y or N)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
Total Bed Count
11287-0007\1213146v4.doc
Morningside Recovery
Travel Routes (draft #1)
Legend:
Acceptable Route = i—o.
NOTES:
1— Within the boundaries of the above chart, Morningside's Client Transport routes are limited the following streets, except during emergencies
or if approved routes are closed:
• Balboa Boulevard
• Newport Boulevard
• River Avenue (only between 51st Street and Balboa Boulevard — not the section of River Ave between 45th and 32nd Street)
• 32nd Street
• Coast Highway
2 —The General Rule for Morningside's Client Transport vans shall be that Morningside shall use major thoroughfares (Newport Boulevard and
Balboa Boulevard) whenever possible, avoiding narrow neighborhood streets such as River Avenue between 45th and 32nd Street).
3 —Access to Morningside's facility at 112 39th Street shall be from 39th Street, 40th Street or 38th Street, and Seashore Drive.
4 —The City and Morningside shall work cooperatively to amend these routes whenever Morningside moves a facility.