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HomeMy WebLinkAbout14 - Newport Beach Country Club Golf Realty Fund - PA2005-140Q SEW PpRr CITY OF \T NEWPORT BEACH City Council Staff Report Agenda Item No. 14 March 13, 2012 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Community Development Department Kimberly Brandt, Director 949 - 644 -3226, kbrandt @newportbeachca.gov PREPARED BY: Rosalinh Ung, Associate Planner APPROVED: 0, TITLE: NEWPORT BEACH COUNTRY CLUB (PA2005 -140) Golf Realty Fund 1600 & 1602 East Coast Highway ABSTRACT: Consideration of the Planned Community Development Plan, Site Development Review, and Development Agreement related to the Newport Beach Country Club proposed by the property owner, Golf Realty Fund. RECOMMENDATIONS: 1) Conduct a public hearing; and 2) Introduce Ordinance No. 2012 -2 (Attachment No. CC1) approving Planned Community Development Plan Amendment No. PC2005 -002 to adopt the development standards for the development on the Tennis Club site and pass to second reading for adoption on March 27, 2012; 3) Adopt Resolution No. 2012 -10A (Attachment No. CC2): a. Reconfirming the January 24, 2012, approval of Site Development Review No. SD2011 -002 by Resolution No. 2010 -10 for 1602 East Coast Highway; and b. Approving an Alternative Site Plan for the Golf Club site located at 1600 East Coast Highway. 4) Introduce Ordinance No. 2012 -3 (Attachment No. CC3) approving Development Agreement No. DA2008 -001 and pass to second reading for adoption on March 27, 2012. 1 Newport Beach Country Club -Golf Realty Fund March 13, 2012 Page 2 BACKGROUND: On January 24, 2012, the City Council took the following actions: a. Adopted Resolution No. 2012 -9 approving Mitigated Negative Declaration No. ND2010 -008; b. Introduced Ordinance No. 2012 -2 approving Planned Community Development Plan No. PC2005 -002 for the entire project site which includes the Golf Club and Tennis Club sites; C. Adopted Resolution 2012 -10 approving a conversion of 17 tennis courts to 27 hotel rooms and denying Transfer of Development Rights No. TD2010- 003; approving Site Development Review No. SD2011 -002, Limited Term Permit No. XP2011 -004, and Vesting Tentative Tract Map No. NT2005- 003 for the improvements to the Tennis Club portion of the project site; and reserving the Golf Club site for future consideration; and d. Introduced Ordinance No. 2012 -3 approving Development Agreement No. DA2008 -001. An excerpt of the January 24, 2012, City Council meeting minutes reflecting these actions is provided in Attachment CC4. At the same meeting, the City Council introduced Ordinance No. 2012 -04 approving Planned Community Development Plan No. PC2008 -001 and approved Site Development Review No. SD2011 -003, submitted by the Newport Beach Country Club Inc. (NBCC), to allow the construction of a golf clubhouse, associated parking lot, and maintenance facility on the Golf Club site (1600 East Coast Highway). On February 14, 2012, the City Council granted the applicant's request for a continuance of the second reading of the ordinances approving their Planned Community Development Plan and Development Agreement to February 28, 2012. At the same meeting, the City Council re- introduced Ordinance No. 2012 -4 approving Planned Community Development Plan No. PC2008 -001 proposed by NBCC, Inc. at 1600 East Coast Highway. Subsequent to the City Council's action on February 14, 2012, the applicant presented the following requests: a. Modify the Development Agreement to apply to the development of the Tennis Club site only located at 1602 East Coast Highway; b. Accept the applicant's proposed "Alternative Site Plan" for the Golf Club site, located at 1600 East Coast Highway, as an alternative to the NBCC, Inc. plan without the Alternative Site Plan being "vested" by the applicant's Development Agreement. 2 Newport Beach Country Club -Golf Realty Fund March 13, 2012 Page 3 On February 28, 2012, the City Council took the following actions: a. Continued the consideration of applicant's Planned Community Development Plan to March 13, 2012. b. Waived City Council Policy A10 regarding "Voting Procedures - Reconsideration" in order to reconsider the applicant's Site Development Review No. SD2011 -002 on March 13, 2012. C. Continued the consideration of applicant's Development Agreement to March 13, 2012. The City Council also adopted Planned Community Development Plan No. PC2008 -001 as proposed by NBCC, Inc. for the Golf Club site located at 1600 East Coast Highway. DISCUSSION: Planned Community Development Plan (PCDP) The adopted PCDP does not include the Tennis Club site located at 1602 E. Coast Highway. In order for the applicant to implement the proposed improvements at the Tennis Club site, an amendment to the adopted PCDP is required. The amendment would add the zoning and design standards for the Tennis Club site to allow the development of twenty -seven (27) hotel units with a 2,170 square -foot concierge and guest meeting facility and a 7,490 square -foot spa /fitness center; five (5) single -unit residential dwellings; a 3,725 square -foot tennis clubhouse; and seven (7) tennis courts including one lighted stadium - center tennis court. The amendment and is provided in Attachment CC5 and is substantially different from what the City Council considered on January 24, 2012; therefore, a new first reading of the ordinance is required. Proposed Alternative Site Plan The applicant's Site Development Review application was initially submitted for the Golf Club and Tennis Club sites and as indicated, on January 24, 2012, the City Council approved the Site Development Review application for the improvements to the Tennis Club site only and reserved the improvements to the Golf Club site for future consideration by Resolution No. 2010 -10. Since the applicant has not proposed any changes to the Tennis Club site, staff is requesting that City Council reconfirm its approval of Site Development Review No. SD2011 -002 for the Tennis Club site (1602 East Coast Highway). The applicant's proposed Alternative Site Plan is limited to the Golf Club site, and it would allow the construction of a 35,000 square -foot golf clubhouse and associated parking lot (Attachment CC6). The key differences between the "Alternative Site Plan" and the approved site plan are as follows: 3 Newport Beach Country Club -Golf Realty Fund March 13, 2012 Page 4 1. Reduction in the golf clubhouse size from 54,819 sq. ft. to 35,000 sq. ft.; 2. Reorientation of the parking aisles and parking spaces; and 3. Elimination of the frontage driveway access and connection to Armstrong Garden Center. Additionally the proposed deceleration lane on East Coast Highway is eliminated, as well as the relocation of the easterly driveway on the Armstrong Garden Center site to the project site. Staff has expressed significant concerns with the concept of having two approved site development plans for one property, particularly if both are individually vested through separate development agreements. To address this concern, the applicant has proposed that the Alternative Site Plan not be included in their development agreement, and therefore not become a vested right. The applicant has proposed a revised Development Agreement (see following section). Furthermore, to clarify the precedence of Site Development Review No. SD2011 -003 (Newport Beach Country Club, Inc.) over Site Development Review No. 2011 -002 (Golf Realty Fund alternative), staff is recommending the following Condition of Approval ( #3): "3. The Alternative Site Plan for the Golf Club site of Site Development Review No. SD2011 -002 shall not be effective until such time the Newport Beach Country Club, Inc. or its successor in interest in Development Agreement No. 2010 -005 elects to waive its right to construct Site Development Review No. SD2011 -003 in favor of constructing the Alternative Site Plan. This waiver shall be made in writing to the City Manager for review and approval. " Should the City Council chose to approve the applicant's Alternative Site Plan for the Golf Club site, staff has prepared a draft resolution and attached as CC2. Modify the Development Agreement to apply to only the new development on the Tennis Club site located at 1602 East Coast Highway The Development Agreement that covered both the Golf Club and Tennis Club sites has been modified to be applicable only to the Tennis Club site (Attachment CC7). The duration of the revised Development Agreement remains the same (10 years) with no changes to the negotiated terms. The revised Development Agreement would provide the vested right to proceed with the development on the Tennis Club site only as ultimately approved by the City and the Coastal Commission since the property is within the Coastal Zone. NOTICING: The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). Submitted y: Kimberly Brandt, Al up Director 4 Attachment: CC1 CC2 CC3 CC4 CC5 CC6 CC7 Newport Beach Country Club -Golf Realty Fund March 13, 2012 Page 5 Ordinance No. 2012 -2 Resolution No. 2012 -10A Ordinance No. 2012 -3 Excerpt of City Council Minutes, dated January 24, 2012 PCDP — Tennis Club Site Alternative Site Plan Revised Development Agreement 0 0 City Council Attachment M Ordinance #2012 -2 7 q ORDINANCE NO. 2012 -2 AN ORDINANCE OF THE CITY OF NEWPORT BEACH APPROVING PLANNED COMMUNITY DEVELOPMENT PLAN AMENDMENT NO. PC2005 -002 FOR THE NEWPORT BEACH COUNTRY CLUB PROPERTY LOCATED AT 1602 EAST COAST HIGHWAY (PA2005 -140) THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. An application was filed by Golf Realty Fund, with respect to property located at 1600 & 1602 East Coast Highway, and legally described as Parcels 1 and 3 of Parcel Map No. 79 -704 and Parcel 1 and Parcel 2 of Parcel Map 94 -102, requesting an approval to redevelop the existing private golf club and tennis club sites of the Newport Beach Country Club. The application included the following requests: a. A Planned Community Development Plan adoption to provide development standards and design guidelines for the golf club and tennis club sites and their ancillary uses, pursuant to Chapter 20.63 of the Municipal Code. b. A Transfer of Development Rights to transfer 27 hotel units from Anomaly No. 43 (Newport Beach Marriott Hotel and Spa site) to Anomaly No. 46 (the Tennis Club site), pursuant to General Plan Land Use Policies LU4.3 and LU6.14.3. C. A Site Development Review to allow the construction of a 35,000 square -foot golf clubhouse and parking lot, twenty -seven (27) hotel units with a 2,170 square -foot concierge and guest meeting facility and a 7,490 square -foot spa /fitness center, five (5) single -unit residential dwellings, a 3,725 square -foot tennis clubhouse, and seven (7) tennis courts including one lighted stadium - center tennis court, pursuant to the Section 4.3 of the Newport Beach Country Planned Community Development Plan. d. A Vesting Tentative Tract Map to create separate lots for five (5) single -unit residential dwellings, twenty (27) hotel units, tennis club facility, lettered lots for common areas and a private street, pursuant to Title 19 of the Municipal Code. e. A Limited Term Permit (Temporary Structures and Uses) to allow temporary use of structures during construction pursuant to Section 20.60.015 of the Municipal Code. f. A Development Agreement pursuant to Section 15.45.020.A.2.c of the Municipal Code which requires a development agreement as the project includes a zoning code amendment and new non - residential development in Statistical Area L1 (Newport Center /Fashion Island) and General Plan Land Use Policy LU6.14.8 which requires a development agreement since the proposed project is a mixed -use development project and the proposed five (5) I City Council Ordinance No. 2012 -2 Page 2 of 7 single - family units will be drawn from the 450 residential units allocated for the Newport Center /Fashion Island. 2. The application was deemed complete on November 5, 2009; and pursuant to Ordinance No. 2010 -21, the application is being considered and evaluated pursuant to the Zoning Code in effect prior to November 25, 2010. 3. The Planning Commission held public hearings on August 4, 2011 and October 20, 2011, and November 17, 2011. At the November 17th hearing with a vote of 3 -2, the Planning Commission adopted Resolution No. 2011 -1861, recommending the City Council to: a. Adopt Mitigated Negative Declaration No. ND2010 -008, an Errata to the Mitigated Negative Declaration, and the Mitigation Monitoring and Reporting Program; b. Approve Planned Community Development Plan No. PC2005 -002, as proposed by staff, for the entire project site which includes the Golf Club and Tennis Club sites; C. Approve a conversion of 17 tennis courts to 27 hotel units and deny Transfer of Development Rights No. TD2010 -003; d. Approve Site Development Review No. SD2011 -002 and Limited Term Permit No. XP2011 -004, as proposed by the applicant, for the improvements to the Tennis Club portion of the project site. The approval of Site Development Review No. SD2011 -002 did not include the Golf Club site as proposed by the applicant, but it was reserved for future consideration; e. Approve Vesting Tentative Tract Map No. NT2005 -003 as proposed by the applicant; and f. Approve of Development Agreement No. DA2008 -001. 4. The City Council conducted a public hearing on January 24, 2012, in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time, place and purpose of the meeting was given in accordance with the Newport Beach Municipal Code. Evidence, both written and oral, was presented to, and considered by, the City Council at this meeting. At the conclusion of the hearing, the City Council approved the project as recommended by the Planning Commission. 5. On February 14, 2012, the City Council granted a continuance of the second reading of the ordinances approving Planned Community Development Plan No. PC2005 -002 and Development Agreement No. DA2008 -001 to February 28, 2012, as requested by the applicant. 6. On February 14, 2012, the City Council re- introduced Ordinance No. 2012 -004 approving Planned Community Development Plan No. PC2008 -001, submitted by the Tmplt: 11/23/09 10 City Council Ordinance No. 2012 -2 Paoe 3 of 7 Newport Beach Country Club, Inc. to provide development standards and design guidelines for the Golf Club site located at 1600 East Coast Highway. 7. Subsequent to the City Council's action on February 14, 2012, the applicant presented the following requests: a. Modify the Development Agreement to apply only to the new development on the Tennis Club site located at 1602 East Coast Highway; b. Approve an alternative site plan (Alternative Site Plan) for the Golf Club site located at 1600 East Coast Highway and acknowledge that the Alternative Site Plan would not be "vested" by the Development Agreement. 8. The applicant's additional requests required the City Council to take action to reconsider its approval of the Site Development Review application on January 24, 2012, since any alternative site plan approval must be considered as part of that application. 9. On February 28, 2012, the City Council took the following actions: a. Continued consideration of Ordinance No. 2012 -2 approving Planned Community Development Plan No. PC2005 -002 to March 13, 2012. b. Waived City Council Policy A10 regarding "Voting Procedures- Reconsideration" in order to reconsider Resolution No. 2012 -10 approving Site Development Review No. SD2011 -002 on March 13, 2012. C. Continued consideration of Ordinance No. 2012 -3 approving Development Agreement No. DA2008 -001 to March 13, 2012. 10. On February 28, 2012, the City Council adopted Ordinance No. 2012 -004 approving Planned Community Development Plan No. PC2008 -001 as proposed by NBCC, Inc. for the Golf Club site located at 1600 East Coast Highway. 11. The City Council held public hearing on March 13, 2012, in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time, place and purpose of the meeting was given in accordance with the Newport Beach Municipal Code. Evidence, both written and oral, was presented to, and considered by, the City Council at this meeting. SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. 1. An Initial Study and Mitigated Negative Declaration have been prepared in compliance with the California Environmental Quality Act (CEQA), the State CEQA Guidelines, and City Council Policy K -3. Tmpit: 11/23/09 11 City Council Ordinance No. 2012 -2 Paqe 4 of 7 2. The Mitigated Negative Declaration, an Errata to the Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program were adopted by City Council on January 24, 2012, by adopting certain CEQA determinations containing within Resolution No. 2012 -9, which are hereby incorporated by reference. 3. The City Council finds that judicial challenges to the City's CEQA determinations and approvals of land use projects are costly and time consuming.. In addition, project opponents often seek an award of attorneys' fees in such challenges. As project applicants are the primary beneficiaries of such approvals, it is appropriate that such applicants should bear the expense of defending against any such judicial challenge, and bear the responsibility for any costs, attorneys' fees, and damages which may be awarded to a successful challenger. SECTION 3. FINDINGS 1. The proposed project is consistent with the General Plan and Coastal Land Use Plan as follows: a. The project site is located within Newport Center /Fashion Island. The Land Use Element of the General Plan designates the Tennis Club site Mixed Use Horizontal 3 /Park and Recreation (MU- H3 /PR). The MU -H3 /PR designation on the Tennis Club site provides for the horizontal intermixing of regional commercial office, hotel, single - family and multi - family residential and ancillary commercial uses. The PR designation allows active public or private recreational uses including parks (both active and passive), golf courses, marina support facilities, aquatic facilities, tennis clubs and courts, private recreation, and similar facilities. b. The General Plan limits total development at the Tennis Club site to 3,725 square feet and 24 tennis courts (Anomaly No. 46). Residential is also permitted in Anomaly No. 46, in accordance with MU -H3 /PR designation. The existing 3,725 square -foot tennis clubhouse will be replaced with a new tennis clubhouse of same the square footage established for Anomaly No. 46. The five (5) single -unit dwellings will be drawn from the maximum 450 dwelling units that are allowed in the Newport Center /Fashion Island Statistical Area (there are unallocated 20 units remaining at this time). C. In order to accommodate the development of the proposed 27 hotel -unit development (bungalows), the 17 tennis courts shall be converted to 27 hotel units. The conversion of eliminated 17 tennis courts to 27 hotel units is consistent with the General Plan based upon the recognition that the General Plan provides for additional retail opportunities at Fashion Island, hotel rooms, and housing units within Newport Center. Additionally, the proposed conversion revitalizes an area wherein the General Plan encourages hotel development and the conversion does not create traffic impacts. TmpIC 11/23/09 12 City Council Ordinance No. 2012 -2 Paae 5 of 7 2. The Coastal Land Use Plan designates the Tennis Club portion of the project site as Mixed Use Horizontal /Park and Recreation (MU- H /PR). The MU -H /PR designation recognizes the private recreational tennis courts and the potential development of short-term rental visitor accommodations and single- family residential units. Policy 2.1.8 -1 allows the horizontal intermixing of short-term rental units and single- family homes with the expanded tennis club facilities, Permitted uses include those permitted by the MU -H and PR categories. MU -H allows horizontally distributed mix of uses, which may include general or neighborhood commercial, commercial offices, multi- family residential, visitor- serving and marine - related uses, and /or buildings that vertically integrate residential with commercial uses. PR category allows active public or private recreational use including parks (both active and passive), golf courses, marina support facilities, aquatic facilities, tennis clubs and courts, private recreation, and similar facilities. The amendment of planned community district development plan (PCDP) to include the Tennis Club site will ensure building design and siting regulations will protect coastal resources, including protection of views, and public access through height, setback, floor area, lot coverage, building bulk, and improved pedestrian access in accordance with Policy 2.2.2 -4. The proposed project will provide visitor - serving and recreational facilities as required in Policy 2.3.2 -2. The proposed redevelopment of the project site is therefore consistent with the Coastal Land Use designations. SECTION 4. DECISION. THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH DOES HEREBY ORDAIN AS FOLLOWS: 1. Planned Community Development Plan No. PC2005 -002 shall be approved as an amendment to Planned Community Development Plan No. PC2008 -001 to expand the Newport Beach Country Club Planned Community Plan to include the Tennis Club site and to provide use and zoning development standards for twenty -seven (27) hotel units with a 2,170 square -foot concierge and guest meeting facility and a 7,490 square -foot spa /fitness center, five (5) single -unit residential dwellings, a 3,725 square -foot tennis clubhouse, and one lighted stadium - center tennis court as depicted in Exhibit "A" attached hereto and incorporated by reference. 2. If any section, subsection, sentence, clause or phrase of this ordinance is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this ordinance. The City Council hereby declares that it would have passed this ordinance, and each section, subsection, clause or phrase hereof, irrespective of the fact that anyone or more sections, subsections, sentences, clauses and phrases be declared unconstitutional. 3. This action shall become final and effective thirty days after the adoption of this Ordinance. Tmpll 11/23/09 1-71 City Council Ordinance No. 2012 -2 Pace 6 of 7 4. The Mayor shall sign and the City Clerk shall attest to the passage of this Ordinance. This Ordinance shall be published once in the official newspaper of the City, and the same shall become effective thirty (30) days after the date of its adoption. This Ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach held on the 13th of March, 2012, and adopted on the 27th day of March, 2012, by the following vote, to wit: AYES, COUNCIL MEMBERS NOES, COUNCIL MEMBER ABSENT, COUNCIL MEMBERS Z, RIT167.0 ATTEST: Leilani Brown, City Clerk APPROVED AS TO FORM, M(DFFI-E ATTORNEY. , y Attorney 5� 12 for the City of Newport BEJ@ch Tmpll: 11123/09 -14 STATE OF CALIFORNIA) ) SS. COUNTY OF ORANGE ) I am a citizen of the United States and a resident of the County of Los Angeles; I am over the age of eighteen years, and not a party to or interested in the notice published. I am a principal clerk of the NEWPORT BEACH/COSTA MESA DAILY PILOT, which was adjudged a newspaper of general circulation on September 29, 1961, case A6214, and June 11, 1963, case A24831, for the City of Costa Mesa, County of Orange, and the State of California. Attached to this Affidavit is a true and complete copy as was printed and published on the following date(s): Saturday, March 3, 2012 I certify (or declare) under penalty of perjury that the foregoing is true and correct. Executed on March 9, 2012 at Los Angeles, California Signature 3`3f1z NOTICE OF PUBLIC HEARING NOTICE IS HEREBY GIVEN that ofi Tues- day, March 13, 2012, r-- r"t '30W at 7:00 p.m., a public t"" (_, F 1 / hearing will be conduct - @d in the City Council Chambers (Building A) at 3300 Newport Boule- `'t vard, Newport Beach IJI2 MAR i 2 AN 10; 16 The City Council of the City of Newport Beach will consider the follow- ing application: ` ; ,CE OF Annual Review of De- '�: 0;velopment Agreement P IL E, i I I CLERK for Fletcher Jones- n (PA2009-052) - An an-�"r' I �i. �� nual review of Develop- ment Agreement No. 9 for Fletcher Jones Mo- torcars, pursuant to Section 15.45.080 of the Municipal Code and Section 65865.1 of the California Government Code. On September 11, 1995, the City Council approved Development Agreement 'No. 9 be- tween'the City of New- port Beach and Fletcher Jones Motorcars, Inc. The purpose of the De- velopment Agreement was to allow for the development of a pre- viously undeveloped site, known as the San Diego Creek North, with the Fletcher Jones Mer- cedes Benz automobile dealership. The City Council will review Fletcher Jones go faith compliance with the provisions of the D e v e l o p m e n t Agreement. Fletcher Jones Motorcars is lo- cated, at 3300 Jamboree Road. The project is exempt from the California En- vironmental Quality Act ("CEQA") pursuant to Section 15321 (En- forcement Actions by Regulatory Agencies) of the CEQA Guidelines, California Code of Reg- ulations, Title 14, Chap- ter 3, because it has no potential to have a sig- nificant effect on the environment. All interested parties may appear and present testimony in regard to this* application. If you challenge this project in court, you may be limited to raising only those issues you or someone else raised at the public hearing (de- scribed in this notice) or in written corre- spondence delivered to the City, at, or prior to, the public hearing. The agenda, staff report, and documents may be reviewed at the City Clerk's Office (Building B), 3300 Newport Bou- levard, Newport Beach, California, 92663 or at the City of Newport Beach website at www. newportbeachca.gov on the Friday prior to the hearing. For questions regarding details of the project Please contact Fern Nueno, Assistant Plan- ner, at 949-644-3227 or Fnueno'@newport- beach ca.gov. Leilani Brown, City Clerk City of Newport Beach 'ublished Newport 3each/Costa Mesa Daily 'ilot March 3, 2012. City Council Ordinance No. 2012 -2 Paqe 7 of 7 EXHIBIT "A" NEWPORT BEACH COUNTRY CLUB PLANNED COMMUNITY DEVELOPMENT PLAN AMENDMENT Tmpit: 11/23/09 ZJ5 10 City Council Attachment CC2 Resolution #2012 -10A 17 12 RESOLUTION NO. 2012 -10A A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH RECONFIRMING ITS APPROVAL OF SITE DEVELOPMENT REVIEW NO. SD2011 -002 BY RESOLUTION 2012 -10 FOR 1602 EAST COAST HIGHWAY AND APPROVING AN ALTERNATIVE SITE PLAN AS A PART OF SITE DEVELOPMENT REVIEW NO. SD2011 -002 FOR THE NEWPORT BEACH COUNTRY CLUB PROPERTY LOCATED AT 1600 EAST COAST HIGHWAY (PA2005 -140) THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. The applicant, Golf Realty Fund, with respect to property located at 1600 and 1602 East Coast Highway, and legally described as Parcels 1 and 3 of Parcel Map No. 79 -704 and Parcel 1 and Parcel 2 of Parcel Map 94 -102, requesting an approval to redevelop the existing private golf club and tennis club sites of the Newport Beach Country Club as described in PC2005 -002, TD2010 -003, SD2011 -002, NT2005 -003, XP2011 -004, and DA2008 -001. 2. On January 24, 2012 the City Council adopted Resolution No. 2012 -10 for Site Development Review No. 'SD2011 -002 to allow the development of the Tennis Club Site located at 1602 East Coast Highway to include of twenty -seven (27) hotel units with a 2,170 square -foot concierge and guest meeting facility and a 7,490 square -foot spa /fitness center, five (5) single -unit residential dwellings, a 3,725 square -foot tennis clubhouse, and seven (7) tennis courts including one lighted stadium - center tennis court. 3. On January 24, 2012, the City Council also approved Site Development Review No. SD2011 -003, submitted by the Newport Beach Country Club Inc., to allow the construction of a golf clubhouse, associated parking lot, and maintenance facility at the Golf Club Site located at 1600 East Coast Highway, 4. On February 14, 2012, the City Council granted a continuance of the second reading of the ordinances approving Planned Community Development Plan No. PC2005 -002 and Development Agreement No. DA2008 -001 to February 28, 2012, as requested by the applicant. 5. On February 14, 2012, the City Council re- introduced an ordinance approving Planned Community Development Plan No. PC2008 -001, submitted by the Newport Beach Country Club; Inc. to provide development standards and design guidelines for the Golf Club site located at 1600 East Coast Highway. 6. Subsequent to the City Council's action on February 14, 2012, the applicant presented the following requests: 19 City Council Resolution No. 2012 -10A Paae 2 of 13 a. Modify the Development Agreement to apply to only the new development on the Tennis Club site located at 1602 East Coast Highway; b. Approve an alternative site plan (Alternative Site Plan) for the Golf Club site located at 1600 East Coast Highway and acknowledge that the Alternative Site Plan would not be "vested" by the Development Agreement. 7. The applicant's additional requests required the City Council to take action to reconsider its approval of the Site Development Review application on January 24, 2012, since any alternative site plan approval must be considered as part of that application. 8. On February 28, 2012, the City Council took the following actions: a. Continued consideration of Ordinance No. 2012 -2 approving Planned Community Development Plan No. PC2005 -002 to March 13, 2012. b. Waived City Council Policy A10 regarding "Voting Procedures- Reconsideration" in order to reconsider Resolution No. 2012 -10 approving Site Development Review No. SD2011 -002 on March 13, 2012. C. Continued consideration of Ordinance No. 2012 -3 approving Development Agreement No. DA2008 -001 to March 13, 2012. 9. On February 28, 2012, the City Council adopted Ordinance No. 2012 -004 approving Planned Community Development Plan No. PC2008 -001 as proposed by NBCC, Inc. for the Golf Club site located at 1600 East Coast Highway. 10. The City Council held public hearing on March 13, 2012, in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time, place and purpose of the meeting was given in accordance with the Newport Beach Municipal Code. Evidence, both written and oral, was presented to, and considered by, the City Council at this meeting. SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. 1. An Initial Study and Mitigated Negative Declaration have been prepared in compliance with the California Environmental Quality Act (CEQA), the State CEQA Guidelines, and City Council Policy K -3. 2. The Mitigated Negative Declaration, an Errata to the Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program were adopted by City Council on January 24, 2012, by adopting certain CEQA determinations containing within Resolution No. 2012 -9, which are hereby incorporated by reference. Tmplt: 03/08111 20 City Council Resolution No. 2.012 -10A Paae 3 of 13 3. The City Council finds that judicial challenges to the City's CEQA determinations and approvals of land use projects are costly and time consuming. In addition, project opponents often seek an award of attorneys' fees in such challenges. As project applicants are the primary beneficiaries of such approvals, it is appropriate that such applicants should bear the expense of defending against any such judicial challenge, and bear the responsibility for any costs, attorneys' fees, and damages which may be awarded to a successful challenger. SECTION 3. REQUIRED FINDINGS. Pursuant to Section 4.3 of the PCDP, the following findings and facts in support of such findings are set forth: Finding: A. The Alternative Site Development Plan shall be in compliance with all other provisions of the PCDP (Newport Beach Country Club Planned Community Development Plan). Facts in Support of Finding: A -1. The PCDP provides a requirement that a site development review process be completed for construction of any new major building structure located on the subject site and would require consideration and approval by the Planning Commission prior to the issuance of grading or building permits. A site development review application has been submitted for the construction of the golf clubhouse and meets provisions stated in the PCDP in that and thereby meets the intent specified in Section 20.52.080 (Site Development Reviews) of the Municipal Code. Finding: B. The Alternative Site Development Plan shall be compatible with the character of the neighboring uses and surrounding sites and shall not be detrimental to the orderly and harmonious development of the surroundings and of the City. Facts in Support of Finding: B -1. The golf course is an existing use that has been in place since the 1950's. The reconstruction and modernization of the golf clubhouse will enable the golf course to retain its reputation as a world class sporting venue. The reconstruction represents a significant upgrade to an aging facility with modern amenities for its members and also to the greater Newport Beach community during special events, while retaining both active and passive open space in an urban environment. B -2. The proposed golf clubhouse is designed to be compatible with the new development on the Tennis Club site and the character of the neighboring uses and surrounding sites The California Coastal architecture, landscaping components, circulation design, all other project components reflected in the site development review application will TmpIC 03/08/11 21 City Council Resolution No. 2012 -10A Page 4 of 13 not detrimental to the orderly and harmonious development of the surroundings and the City. Finding: C. The Alternative Site Development Plan shall be sited and designed to maximize of aesthetic quality of the Newport Beach Country Club Planned Community Development Plan as viewed from surrounding roadways and properties, with special consideration given to the mass and bull( of buildings and the streetscape on East Coast Highway. Facts in Support of Finding: C -1. The proposed clubhouse will be 49 feet in height, within the maximum permitted building height of 50 feet. The proposed detailed architectural plans illustrate the clubhouse's building height, mass and design and demonstrate the project's compatibility with existing development and the City's adopted policies and standards. The size, mass and location of golf clubhouse, the architectural detailing, landscaping, circulation, and signage maximize the aesthetic quality of the project. The proposed golf clubhouse is located over 400 feet from East Coast Highway and adequate landscaping and open space separate the proposed development from East Coast Highway. Finding: D. Site plan and layout of buildings, parking areas, pedestrian and vehicular access ways, landscaping and other site features shall give proper consideration to functional aspects of site development. Facts in Support of Finding: D -1. The alternative site plan proposed for the golf clubhouse and its parking areas, pedestrian and vehicular access ways, and landscaping, maximize the functionality of the golf course and its ancillary uses. The applicant's parking lot design meets City standards and will adequately serve the golf clubhouse. SECTION 4. DECISION. NOW, THEREFORE, BE IT RESOLVED: 1. The City Council of the City of Newport Beach does hereby reconsider and reconfirm its approval of Resolution 2012 -10 approving Site Development Review No. SD2011- 002 regarding the Tennis Club site located at 1602 East Coast Highway), subject to the findings and conditions contained within Resolution No. 2012 -10. 2. The City Council does hereby approve the Alternative Site Plan for the Golf Club site (1600 East Coast Highway) as a part of Site Development Review No. SD2011 -002, to Tmpll: 03/08/11 22 City Council Resolution No. 2012 -10A Paae 5 of 13 allow the construction of a 35,000 square -foot golf clubhouse and associated parking lot and maintenance facility, subject to the conditions set forth in Exhibit "A" attached hereto. 3. The Alternative Site Plan shall not be a part of the terms and conditions stated in the applicant's Development Agreement (Development Agreement No. DA2008 -001). 4. The Alternative Site Plan for the Golf Club site of Site Development Review No. SD2011 -002 shall not be effective until such time the Newport Beach Country Club, Inc. or its successor in interest in Development Agreement No. 2010 -005 elects to waive its right to construct Site Development Review No. SD2011 -003 in favor of constructing the Alternative Site Plan. This waiver shall be made in writing to the City Manager for review and approval. 5. This approval was based on the particulars of the individual case and does not in and of itself or in combination with other approvals in the vicinity or Citywide constitute a precedent for future approvals or decisions. 6. This resolution was approved, passed and adopted at a regular meeting of the City Council of the City of Newport Beach, held on the 13th day of March, 2012, by the following vote, to wit: AYES, COUNCIL MEMBERS NOES, COUNCIL MEMBERS ABSENT, COUNCIL MEMBE MAYOR ATTEST: Leilani Brown, City Clerk APPROVED AS TO FORM, �8FF CE F CITY ATTORNEY: Aaron Harp City Attotn y 3 5f i Z for the City of Newport Beach Tmpll 03/08/11 23 City Council Resolution No. 2012 -10A Page 6 of 13 EXHIBIT "A" CONDITIONS OF APPROVAL (Project- specific conditions are in italics) COMMUNITY DEVELOPMENT DEPARTMENT 1. Development shall be in substantial conformance with the Alternative Site Plan of Site Development Review No. SD2011 -002, stamped and dated with the date of this approval (Except as modified by applicable conditions of approval.) 2. The Alternative Site Plan of Site Development Review No. SD2011 -002 is approved for the construction of a 35,000 square -foot golf clubhouse with the associate parking lot and maintenance facility. 3. The Alternative Site Plan for the Golf Club site of Site Development Review No. SD2011 -002 shall not be effective until such time the Newport Beach Country Club, Inc. or its successor in interest in Development Agreement No. 2010 -005 elects to waive its right to construct Site Development Review No. SD2011 -003 in favor of constructing the Alternative Site Plan. This waiver shall be made in writing to the City Manager for review and approval. 4. The Alternative Site Plan for the Golf Curb site of Site Development Review No. SD2011 -002 shall expire in accordance with the Zoning Ordinance, unless an extension is otherwise granted consistent with the Zoning Ordinance (i.e. 24 months from the effective date of a Coastal Development Permit, which shall not occur prior to the effectiveness of the Alternative Site Plan pursuant to Condition No. 3). 5. Any substantial change to the approved Alternative Site Plan for the Golf Club site, shall require an amendment to Site Development Review No. SD2011 -002 or the processing of new permits. 6. A minimum of 334 parking spaces shall be provided and maintained for the Golf Course and its clubhouse. The design of the parking lot may be modified provided it meets applicable safety and design regulations or standards as determined by the City Traffic Engineer. The final parking lot layout including the orientation of the drive aisles and parking spaces shall be subject to the review and approval by the Community Development Director, with appropriate notification to the Planning Commission and City Council. 7. The applicant shall comply with all federal, state, and local laws. Material violation of any of those laws in connection with the use may be cause for revocation of this Site Development Review. 8. The project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval. Tmplf: 03/08/11 24 City Council Resolution No. 2012 -10A Page 7 of 13 9. Should this business or property be sold or otherwise come under different ownership, any future owners or assignees shall be notified in writing of the conditions of this approval by the current owner or leasing company. 10. The Alternative Site Plan for the Golf Club site of Site Development Review No. SD2011 -002 may be modified or revoked by the City Council or Planning Commission should they determine that the proposed development, uses, and/ or conditions under which it is being operated or maintained is detrimental to the public health, welfare or materially injurious to property or improvements in the vicinity or if the property is operated or maintained so as to constitute a public nuisance. 11. Prior to the issuance of building permit of the golf clubhouse, the applicant shall submit a landscape and irrigation plan for the Golf Club site prepared by a licensed landscape architect. These plans shall incorporate drought tolerant plantings and water efficient irrigation practices, and the plans shall be approved by the Planning Division and the Municipal Operations Department. All planting areas shall be provided with a permanent underground automatic sprinkler irrigation system of a design suitable for the type and arrangement of the plant materials selected. The irrigation system shall be adjustable based upon either a signal from a satellite or an on -site moisture - sensor. Planting areas adjacent to vehicular activity shall be protected by a continuous concrete curb or similar permanent barrier. Landscaping shall be located so as not to impede vehicular sight distance to the satisfaction of the Traffic Engineer. 12. All landscape materials and landscaped areas shall be installed and maintained in accordance with the approved landscape plan. All landscaped areas shall be maintained in a healthy and growing condition and shall receive regular pruning, fertilizing, mowing and trimming. All landscaped areas shall be kept free of weeds and debris. All irrigation systems shall be kept operable, including adjustments, replacements, repairs, and cleaning as part of regular maintenance. 13. Prior to the issuance of a certificate of occupancy of the golf clubhouse, the applicant shall schedule an inspection by the Planning Division to confirm that all landscaping was installed in accordance with the approved plan. 14. Reclaimed water shall be used for all landscape areas to the maximum extent practicable recognizing that potable water is necessary in some areas of the golf course. Water for landscaped areas shall be used in accordance with the agreement between the Orange County Water District, the City of Newport Beach, and the Newport Beach Country Club, dated December 18, 1996. Potable water may be used consistent with approvals from .the City of Newport Beach, at mutually agreeable times. 15. Water leaving the project site due to over - irrigation of landscape shall be minimized to maximum extent feasible. Tmpit: 03/08/11 215 City Council Resolution No. 2012 -10A Page 8 of 13 16. Watering of landscape areas shall be done during the early morning or evening_ hours (between 4:00 p.m. and 9:00 a.m.). 17. Water shall not be used to clean paved surfaces such as sidewalks, driveways, parking areas, etc. except to alleviate immediate safety or sanitation hazards. 18. Prior to issuance of any permit for the golf clubhouse approval from the California Coastal Commission shall be required. 19. All noise generated by the proposed use shall comply with the provisions of Chapter 10.26 and other applicable noise control requirements of the Newport Beach Municipal Code. The maximum noise shall be limited to no more than depicted below for the specified time periods unless the ambient noise level is higher: 20. Construction activities shall comply with Section 10.28.040 of the Newport Beach Municipal Code, which restricts hours of noise - generating construction activities to between the hours of 7:00 a.m. and 6:30 p.m., Monday through Friday and 8:00 a.m. and 6:00 p.m. on Saturday. Noise - generating construction activities are not permitted outside of these hours or on Sundays or Holidays. 21. The applicant shall ensure that the trash dumpsters and /or receptacles are maintained to control odors. This may include the provision of either fully self- contained dumpsters or periodic steam cleaning of the dumpsters, if deemed necessary by the Community Development Department. Cleaning and maintenance of trash dumpsters shall be done in compliance with the provisions of Title 14, including all future amendments (including Water Quality related requirements). 22. Storage outside of buildings or within the parking lot of the property shall be prohibited, with the exception of the required trash container enclosure. Outdoor storage of golf course- related equipment and supplies shall be permitted within the screened maintenance yard. 23. A Special Event Permit is required for any event or promotional activity outside the normal operational characteristics of the approved use, as conditioned, or that would attract large crowds, involve the sale of alcoholic beverages, include any form of on- site media broadcast, or any other activities as specified in the Newport Beach Municipal Code to require such permits. 24. All proposed signs shall be in conformance with the provision of the Newport Beach Tmplt: 03/08/11 20 Between the hours of 7:OOAM and 10:OOPM Between the hours of 10:OOPM and 7:OOAM Location Interior Exterior Interior Exterior Residential Property 45dBA 55dBA 40dBA 5OdBA Residential Property located within 100 feet of a commercial property 45dBA 60dBA 45dBA 50dBA Mixed Use Property 45dBA 60dBA 45dBA 50dBA- Commercial Property N/A 65dBA N/A 60dBA 20. Construction activities shall comply with Section 10.28.040 of the Newport Beach Municipal Code, which restricts hours of noise - generating construction activities to between the hours of 7:00 a.m. and 6:30 p.m., Monday through Friday and 8:00 a.m. and 6:00 p.m. on Saturday. Noise - generating construction activities are not permitted outside of these hours or on Sundays or Holidays. 21. The applicant shall ensure that the trash dumpsters and /or receptacles are maintained to control odors. This may include the provision of either fully self- contained dumpsters or periodic steam cleaning of the dumpsters, if deemed necessary by the Community Development Department. Cleaning and maintenance of trash dumpsters shall be done in compliance with the provisions of Title 14, including all future amendments (including Water Quality related requirements). 22. Storage outside of buildings or within the parking lot of the property shall be prohibited, with the exception of the required trash container enclosure. Outdoor storage of golf course- related equipment and supplies shall be permitted within the screened maintenance yard. 23. A Special Event Permit is required for any event or promotional activity outside the normal operational characteristics of the approved use, as conditioned, or that would attract large crowds, involve the sale of alcoholic beverages, include any form of on- site media broadcast, or any other activities as specified in the Newport Beach Municipal Code to require such permits. 24. All proposed signs shall be in conformance with the provision of the Newport Beach Tmplt: 03/08/11 20 City Council Resolution No. 2012 -10A Page 9 of 13 Country Club Planned Community Development Plan and Chapter 20.42 of the Newport Beach Municipal Code and shall be reviewed and approved by the City Traffic Engineer if located adjacent to the vehicular ingress and egress. 25. The final location of the signs shall be reviewed by the City Traffic Engineer and shall conform to City Standard 110 -L to ensure that adequate vehicular sight distance is provided. 26. Lighting shall be in compliance with applicable standards of the Newport Beach Country Club Planned Community Development Plan and Section 20.30.070 of the Newport Beach Municipal Code. Exterior on -site lighting shall be shielded and confined within site boundaries. No direct rays or glare are permitted to shine onto public streets or adjacent sites or create a public nuisance. "Walpak" and up- lighting type fixtures are not permitted. Parking area lighting shall have zero cut -off fixtures. 27. The site shall not be excessively illuminated based on the outdoor lighting standards contained within Section 20.30.070 of the Zoning Code, or, if in the opinion of the Community Development Director, the illumination creates an unacceptable negative impact on surrounding land uses or environmental resources. The Community Development Director may order the dimming of light sources or other remediation upon finding that the site is excessively illuminated. 28. Prior to the issuance of building permit of the golf clubhouse the applicant shall prepare photometric study in conjunction with a final lighting plan for approval by the Planning Division. The survey shall show that lighting values are "1" or less at all property lines. 29. Prior to issuance of the certificate of occupancy or final of building permits of the golf clubhouse the applicant shall schedule an evening inspection by the Code Enforcement Division to confirm control of all lighting sources. 30. Kitchen exhaust fans shall be installed /maintained in accordance with the Uniform Mechanical Code and with pollution control units to filter and control odors. 31. The construction and equipment staging area shall be located in the least visually prominent area on the site and shall be properly maintained and /or screened to minimize potential unsightly conditions. 32. A screen and security fence that is a minimum of six feet high shall be placed around the construction site during construction. 33. Construction equipment and materials shall be properly stored on the site when not in use. 34. Prior to the issuance of any building permit, the applicant shall pay any unpaid administrative costs associated with the processing of this application to the Planning Division. Tmplt; 03/08111 27 City Council Resolution No. 2012 -10A Page 10 of 13 35. To the fullest extent permitted by law, applicant shall indemnify, defend and hold harmless City, its City Council, its boards and commissions, officials; officers, employees, and agents from and against any and all claims, demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever which may arise from or in any manner relate (directly or indirectly) to City's approval of the Newport Beach Country Club development including, but not limited to Planned Community Development Plan Amendment No. PC2005 -002, Vesting Tentative Tract Map No. NT2005 -003, Transfer of Development Rights No. TD2010 -003, Development Agreement No. DA2008 -001, Limited Term Permit No, XP2011 -004, Mitigated Negative Declaration No. ND2010 -008, and Site Development Review No. SD2011 -002. This indemnification shall include, but not be limited to, damages awarded against the City, if any, costs of suit, attorneys' fees, and other expenses incurred in connection with such claim, action, causes of action, suit or proceeding whether incurred by applicant, City, and /or the parties initiating or bringing such proceeding. The applicant shall indemnify the City for all of City's costs, attorneys' fees, and damages which City incurs in enforcing the indemnification provisions set forth in this condition. The applicant shall pay to the City upon demand any amount owed to the City pursuant to the indemnification requirements prescribed in this condition. 36. The applicant is required to obtain all applicable permits from the City's Building Division and Fire Department. The construction plans must comply with the most recent, City - adopted version of the California Building Code. The construction plans must meet all applicable State Disabilities Access requirements. Approval from the Orange County Health Department is required prior to the issuance of a building permit. 37. Prior to the issuance of grading permits, a Storm Water Pollution Prevention Plan (SWPPP) and Notice of Intent (NOI) to comply with the General Permit for Construction Activities shall be prepared, submitted to the State Water Quality Control Board for approval and made part of the construction program. The project applicant will provide the City with a copy of the NO] and their application check as proof of filing with the State Water Quality Control Board. This plan will detail measures and practices that will be in effect during construction to minimize the project's impact on water quality. 38. Prior to issuance of qradinq permits, the applicant shall prepare and submit a Water Quality Management Plan (WQMP) for the proposed project, subject to the approval of the Building Division and Code and Water Quality Enforcement Division. The WQMP shall provide appropriate Best Management Practices (BMPs) to ensure that no violations of water quality standards or waste discharge requirements occur. TmpIC 03/08/11 M City Council Resolution No. 2012 -10A Paqe 11 of 13 39. The applicant shall comply with SCAQMD Rule 403 requirements as follows: Land Clearing /Earth - Moving a. Exposed pits (i.e., gravel, soil, dirt) with five percent or greater silt content shall be watered twice daily, enclosed, covered, or treated with non -toxic soil stabilizers according to manufacturers' specifications. b. All other active sites shall be watered twice daily. C. All grading activities shall cease during second stage smog alerts and periods of high winds (i.e., greater than 25 mph) if soil is being transported to off -site locations and cannot be controlled by watering. d. All trucks hauling dirt, sand, soil, or other loose materials off -site shall be covered or wetted or shall maintain at least two feet of freeboard (i.e., minimum vertical distance between the top of the load and the top of the trailer). e. Portions of the construction site to remain inactive longer than a period of three months shall be seeded and watered until grass cover is grown or otherwise stabilized in a manner acceptable to the City. f. All vehicles on the construction site shall travel at speeds less than 15 mph. g. All diesel- powered vehicles and equipment shall be properly operated and maintained. h. All diesel - powered vehicles and gasoline- powered equipment shall be turned off when not in use for more than five minutes. The construction contractor shall utilize electric or natural gas - powered equipment instead of gasoline or diesel - powered engines; where feasible. Paved Roads k. All construction roads internal to the construction site that have a traffic volume of more than 50 daily trips by construction equipment, or 150 total daily trips for all vehicles, shall be surfaced with base material or decomposed granite, or shall be paved. I. Streets shall be swept hourly if visible soil material has been carried onto adjacent public paved roads. M. Construction equipment shall be visually inspected prior to leaving the site and loose dirt shall be washed off with wheel washers as necessary. Tmplt: 03108/11 �9 City Council Resolution No. 2012 -10A Paae 12 of 13 Unpaved Staging Areas or Roads n. Water or non -toxic soil stabilizers shall be applied, according to manufacturers' specifications, as needed to reduce off -site transport of fugitive dust from all unpaved staging areas and unpaved road surfaces. FIRE DEPARTMENT 40. Automatic fire sprinklers shall be required for all new construction that exceeds 5,000 square feet in size, is located more than 150 feet from an approved fire access road, and /or based on occupancy classification. The sprinkler system shall be monitored by a UL certified alarm service company. 41. All buildings may require a fire alarm system depending upon occupancy classification. 42. Fire hydrant(s) shall be provided every 300 feet along fire access road. The number and location of the fire hydrant shall be determined by the Fire Department. 43. All elevators shall be gurney accommodating. 44. The use or storage of portable propane heaters is prohibited. Heaters for future outdoor areas shall be fixed and plumbed with natural gas. MUNICIPAL OPERATIONS DEPARTMENT 45. The applicant shall conduct a cross- connection shut down test annually with the Orange County Health Department, City and State Health Department due to recycled water on the premises. Documentation of successful tests shall be submitted to the Municipal Operation Department within 30 days of the test. PUBLIC WORKS DEPARTMENT 46. All runoff discharges shall comply with the City's water quality and on -site non -storm runoff retention requirements. 47. Traffic signal modifications may be needed to the existing traffic signal at the intersection of Irvine Terrace /East Coast Highway due to the modified main entry, including but not limited to new traffic signal poles, loop detection, conduit, striping, etc. The applicant is responsible for costs associated with the design and installation of all traffic signal modification improvements. The limits and extent of work will be determined based on the final approved Irvine Terrace /Coast Highway entry configuration. 48. All on -site drainage, sanitary sewer, water, and electrical systems shall be privately owned, operated, and maintained. Tmplt: 03/08/11 so City Council Resolution No. 2012 -10A Paqe 13 of 13 49. The parking lot and vehicle circulation system shall be subject to further review by the City Traffic Engineer. Parking lot layout shall comply with City Standard STD - 805 -L -A and STD - 805 -L -B. Main driveways, service access, and driveways to parking areas shall be controlled by appropriate signage (i.e. stop signs). 50. All improvements shall be constructed as required by Ordinance and the Public Works Department. 51. The intersection of the public streets, internal roadways, and drive aisle shall be designed to provide adequate sight distance per City of Newport Beach Standard Drawing STD - 110 -L. Slopes, landscaping, walls, signs, and other obstructions shall be considered in the sight distance requirements. Landscaping within the sight lines (sight cone) shall not exceed 24- inches in height and the monument identification sign must be located outside the line of sight cone. The sight distance may be modified at non - critical locations, subject to approval by the Traffic Engineer. 52. An encroachment permit is required for all construction activities within the public right - of -way. 53. An encroachment agreement is required for all private encroachments in the public right -of -way. All private encroachments shall comply with City Council Policy L -6, Private Encroachments in the Public Right -of -Way. 54. Any damage to public improvements within the public right -of -way attributable to on- site development may require additional reconstruction within the public right -of -way at the discretion of the Public Works Inspector. 55. ADA compliant curb ramps shall be installed at all intersections on Irvine Terrace, Coast Highway and within the interior parking area. 56. The domestic water supply shall have a separate water meter and back flow preventer. The domestic water proposed off of the water main on Irvine Terrace shall have a water meter and back flow preventer. Identify the size of the proposed domestic water line. MITIGATION MEASURES 57. The applicant shall comply with all mitigation measures and standard conditions contained within the approved Mitigation Monitoring and Reporting Program of the adopted Mitigated Negative Declaration (Exhibit "A ") for the project. Tmpll: 03/08/11 �2 �2 City Council Attachment CC3 Ordinance #2012 -3 33 ORDINANCE NO. 2012 -3 AN ORDINANCE OF THE CITY OF NEWPORT BEACH APPROVING DEVELOPMENT AGREEMENT NO. DA2008 -001 FOR THE NEWPORT BEACH COUNTRY CLUB PROPERTY LOCATED AT 1602 EAST COAST HIGHWAY (PAA2005 -140) THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. An application was filed by Golf Realty Fund, with respect to property located at 1600 & 1602 East Coast Highway and legally described as Parcels 1 and 3 of Parcel Map No. 79 -704 and Parcel 1 and Parcel 2 of Parcel Map 94 -102, requesting an approval to redevelop the existing private Golf Club and Tennis Club Sites of the Newport Beach Country Club. The application included the following requests: a. A Planned Community Development Plan adoption to provide development standards and design guidelines for the Golf Club and Tennis Club Sites and their ancillary uses; pursuant to Chapter 20.63 of the Municipal Code. b. A Transfer of Development Rights to transfer 27 hotel units from Anomaly No. 43 (Newport Beach Marriott Hotel and Spa site) to Anomaly No. 46 (the Tennis Club site), pursuant to General Plan Land Use Policies LU4.3 and LU6.14.3. C. A Site Development Permit to allow the construction of 35,000 square -foot golf clubhouse and parking lot, twenty -seven (27) hotel units with a 2,170 square - foot concierge and guest meeting facility and a 7,490 square -foot spa /fitness center, five (5) single -unit residential dwellings, a 3,725 square -foot tennis clubhouse, and seven (7) tennis courts including one lighted stadium - center tennis court, pursuant to the Section 4.3 of the Newport Beach Country Planned Community Development Plan. d. A Vesting Tentative Tract Map to create separate lots for five (5) single -unit residential dwellings, twenty (27) hotel units, tennis facility, lettered lots for common areas and a private street, pursuant to Title 19 of the Municipal Code. e. A Limited Term Permit (Temporary Structures and Uses) to allow temporary use of structures during construction pursuant to Section 20.60.015 of the Municipal Code. f. A Development Agreement pursuant to Section 15.45.020.A.2.c of the Municipal Code which requires a development agreement as the project includes a zoning code amendment and new non- residential development in Statistical Area L1 (Newport Center /Fashion Island) and General Plan Land Use Policy LU6.14.8 which requires a development agreement since the proposed project is a mixed -use development project and the proposed five (5) 35 City Council Ordinance No. 2012 -3 Page 2 of 7 single - family units will be drawn from the 450 residential units allocated for the Newport Center /Fashion Island. 2. The application was deemed complete on November 5, 2009; and pursuant to Ordinance No. 2010 -21, the application is being considered and evaluated pursuant to the Zoning Code in effect prior to November 25, 2010. 3. The Planning Commission held public hearings on August 4, 2011 and October 20, 2011, and November 17, 2011. At the November 171h hearing with a vote of 3 -2, the Planning Commission adopted Resolution No. 2011 -1861, recommending the City Council to: a. Adopt Mitigated Negative Declaration No. ND2010 -008, an Errata to the Mitigated Negative Declaration, and the Mitigation Monitoring and Reporting Program; b. Approve Planned Community Development Plan No. PC2005 -002, as proposed by staff, for the entire project site which includes the Golf Club and Tennis Club sites; C. Approve a conversion of 17 tennis courts to 27 hotel units and deny Transfer of Development Rights No. TD2010 -003; d. Approve Site Development Review No. SD2011 -002 and Limited Term Permit No. XP2011 -004, as proposed by the applicant, for the improvements to the Tennis Club portion of the project site. The approval of Site Development Review No. SD2011 -002 did not include the Golf Club site as proposed by the applicant, but it was reserved for future consideration; e. Approve Vesting Tentative Tract Map No. NT2005 -003 as proposed by the applicant; and f. Approve of Development Agreement No. DA2008 -001. 4. The City Council conducted a public hearing on January 24, 2012, in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time, place and purpose of the meeting was given in accordance with the Newport Beach Municipal Code. Evidence, both written and oral, was presented to, and considered by, the City Council at this meeting. At the conclusion of the hearing, the City Council approved the project as recommended by the Planning Commission. 5. On February 14, 2012, the City Council granted a continuance of the second reading of the ordinances approving Planned Community Development Plan No. PC2005 -002 and Development Agreement No. DA2008 -001 to February 28, 2012, as requested by the applicant. 6. On February 14, 2012, the City Council re- introduced Ordinance No. 2012 -004 approving Planned Community Development Plan No. PC2008 -001, submitted by the Tmpll: 11/23/09 City Council Ordinance No. 2012 -3 Page 3 of 7 Newport Beach Country Club, Inc. to provide development standards and design guidelines for the Golf Club site located at 1600 East Coast Highway. 7. Subsequent to the City Council's action on February 14, 2012, the applicant presented the following requests: a. Modify the Development Agreement to apply only to the new development on the Tennis Club site located at 1602 East Coast Highway; b. Approve an alternative site plan (Alternative Site Plan) for the Golf Club site located at 1600 East Coast Highway and acknowledge that the Alternative Site Plan would not be "vested" by the Development Agreement. 8. The applicant's additional requests required the City Council to take action to reconsider its approval of the Site Development Review application on January 24, 2012, since any alternative site plan approval must be considered as part of that application. 9. On February 28, 2012, the City Council took the following actions: a. Continued consideration of Ordinance No. 2012 -2 approving Planned Community Development Plan No. PC2005 -002 to March 13, 2012. b. Waived City Council Policy A10 regarding "Voting Procedures - Reconsideration" in order to reconsider Resolution No. 2012 -10 approving Site Development Review No. SD2011 -002 on March 13, 2012. C. Continued consideration of Ordinance No. 2012 -3 approving Development Agreement No. DA2008 -001 to March 13, 2012. 10. On February 28, 2012, the City Council adopted Ordinance No. 2012 -004 approving Planned Community Development Plan No. PC2008 -001 as proposed by NBCC, Inc. for the Golf Club site located at 1600 East Coast Highway. 11. The City Council held public hearing on March 13, 2012, in the City Hall Council Charnbers, 3300 Newport Boulevard, Newport Beach, California. A notice of time, place and purpose of the meeting was given in accordance with the Newport Beach Municipal Code. Evidence, both written and oral, was presented to, and considered by, the City Council at this meeting. SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. 1. An Initial Study and Mitigated Negative Declaration have been prepared in compliance with the California Environmental Quality Act (CEQA), the State CEQA Guidelines, and City Council Policy K -3. Tmplt: 11/23/09 City Council Ordinance No. 2012 -3 Paqe 4 of 7 2. The Mitigated Negative Declaration, an Errata to the Mitigated Negative Declaration, and. Mitigation Monitoring and Reporting Program were adopted by City Council on January 24, 2012, by adopting certain CEQA determinations containing within Resolution No,2012 -9, which are hereby incorporated by reference. 3. The City Council finds that judicial challenges to the City's CEQA determinations and approvals of land use projects are costly and time consuming. In addition, project opponents often seek an award of attorneys' fees in such challenges. As project applicants are the primary beneficiaries of such approvals, it is appropriate that such applicants should bear the expense of defending against any such judicial challenge, and bear the responsibility for any costs, attorneys' fees, and damages which may be awarded to a successful challenger. SECTION 3. FINDINGS 1. According to General Plan Land Use Element Policy LU6.14.8, a development agreement is required since the proposed project is a mixed -use development project and the proposed five (5) single - family units will be drawn from the 450 residential units allocated for the Newport Center /Fashion Island. Furthermore, Municipal Code Section 15.45.020.A.2.c (Development Agreement Required) requires a development agreement as the project includes a zoning code amendment and new non - residential development in Statistical Area L1 (Newport Center /Fashion Island). The development agreement includes all the mandatory elements for consideration and includes public benefits that are appropriate to support conveying the vested development rights. 2,. Consistent with Government Code Section 65867.5, the Development Agreement provides vested rights and public benefits for the proposed development which is consistent with the General Plan based on the following findings: a. The project site is located within Newport Center /Fashion Island. The Land Use Element of the General Plan designates Tennis Club site as Mixed Use Horizontal 3 /Park and Recreation (MU- H3 /PR). The MU -H3 /PR designation on the Tennis Club site provides for the horizontal intermixing of regional commercial office, hotel, single - family and multi - family residential and ancillary commercial uses. The PR designation allows active public or private recreational uses including parks (both active and passive), golf courses, marina support facilities, aquatic facilities, tennis clubs and courts, private recreation, and similar facilities. b. The General Plan limits total development at the Tennis Club site to 3,725 square feet and 24 tennis courts for Anomaly No. 46. Residential is also permitted, in accordance with MU -H3 /PR designation. The existing 3,725 square -foot tennis clubhouse will be replaced with a new tennis clubhouse of same the square footage. The five (5) single -unit dwellings will be drawn from the maximum 450 dwelling units that are allowed in the Newport Tmplt: 11/23109 � City Council Ordinance No. 2012 -3 Page 5 of 7 Center /Fashion Island Statistical Area (there are unallocated 20 units remaining at this time). d. In order to accommodate the development of the proposed 27 hotel -unit development (bungalows), the 17 tennis courts shall be converted to 27 hotel units. The General Plan provides for additional retail opportunities at Fashion Island and hotel rooms and housing units in Newport Center and the proposed conversion does not require a general plan amendment. The proposed conversion revitalizes an area wherein the General Plan encourages hotel development. 3. As Planned Community Development Plan No. PC2005 -002 has been modified to provide use and zoning development standards for the Tennis Club site only, the Development Agreement is thereby adjusted to provide vested rights and public benefits for the Tennis Club site only. SECTION 4. DECISION. THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH DOES HEREBY ORDAIN AS FOLLOWS: 1. The Development Agreement shall be adopted as depicted in Exhibit "A" attached hereto and incorporated by reference, for the development on the Tennis Club site. 2. If any section, subsection, sentence, clause or phrase of this ordinance is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this ordinance. The City Council hereby declares that it would have passed this ordinance, and each section, subsection, clause or phrase hereof, irrespective of the fact that anyone or more sections, subsections, sentences, clauses and phrases be declared unconstitutional. 3. This action shall become final and effective thirty days after the adoption of this Ordinance. 4. The Mayor shall sign and the City Clerk shall attest to the passage of this Ordinance. This Ordinance shall be published once in the official newspaper of the City, and the same shall become effective thirty (30) days after the date of its adoption. TmpIC 11123/09 S9 City Council Ordinance No. 2012 -3 Page 6 of 7 This Ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach held on the 13th of March, 2012, and adopted on the 27th day of March, 2012, by the following vote, to wit: AYES, COUNCIL MEMBERS NOES, COUNCIL MEMBERS ABSENT, COUNCIL MEMBERS Irlwke- ATTEST: Leilani Brown, City Clerk APPROVED AS TO FORM, OFFIE OP�C1I TTORNEY: Aaron Hay, City Attorney for the City of Newport Beach Tmpll: 11/23/09 40 City Council Ordinance No. 2012 -3 Paqe 7 of 7 EXHIBIT "A" DEVELOPMENT AGREEMENT Tmpll: 11/23109 41 42 City Council Attachment CC4 Excerpt of CC Minutes, dated Jan 24, 2012 43 44 City of Newport Beach City Council Minutes January 24, 2012 be placed on the subdivision map that will alleviate the view problem. City ttorney Harp reported that if the applicant wants to voluntarily put deed restric 'one on their pi arty that would limit the size and mass, then tha/consideration eptable d will be what the anning Commission would be considering. Discussion ens d relative to the Planning Commission's bron the item. Jim Mosher believe thaC the item needs clarification and inuing the item for proper consideration o vhat is being requested. Jeff DuFine wondered wha leed restriction could be placed at would change the lot size. He believed that this not about the house but rath er. Melinda Luthin, representing man f the residents of Yock 34, noted that the item must not be detrimental to residents and must'* consistent ' h the legislative intent of Title 19, the General Plan, and the Local Coastal Pla . She sty ed that the Iota should be consistent with the surrounding areas and not create an ex ssiv y large lot. Clifford Jones spoke in opposition /erties mer et• and expressed concerns with the delays in the process. Dan Purcell reported that both pve starts o deteriorate and wanted assurances that the property owner will confi tain the prop hies. Hearing no further testi ony, Mayor Gardner closed the ublic hearing. Council Member Hen equested that the item be expedited as much s possible. Motion b Cou il Member Henn seconded by aver Pro Tem t rr to continue this item for the p pose of referring the matter to the Planning Commission a d requesting that the Plannin Commission provide a recommendation to the City Council on he approval o denial of t e merger application based on the proposed design restrictions. The 9y6tion carried by the following roll call vote: Council Member Hill, Council Member Rosansky, Mayor Pro Tern Carry, Mayor Ga Council Member Selich, Council Member Henn, Council Member Daigle 14. NEWPORT BEACH COUNTRY CLUB (PA2005 -140) - GOLF REALTY FUND - 1600 AND 1602 EAST COAST HIGHWAY - PROPOSAL FOR REDEVELOPMENT OF THE EXISTING PRIVATE GOLF COURSE CLUBHOUSE AND TENNIS CLUB (C- 5068). (100 -20121 Community Development Director Brandt provided general comments for Public Hearing Items 14 and 15 related to the Newport Beach Country Club (NBCC). She addressed its location, boundaries, and specific areas to be considered, including the golf course and tennis club. She noted that the NBCC is located in a unique statistical area with very specific land use and vehicle trip allocations to its various sub- areas. Additionally, she stated that there are specific policies that allow transfers of development allocations between the sub - areas. She addressed General Plan considerations, displayed the General Plan Land Use Map, project site, the overlap between the two applications; and provided project summary comparisons, entitlements needed, and the actions required of Council. She discussed the need for approval of a Mitigated Negative Declaration (MND) for both applications, approval of a General Plan Amendment for the Newport Beach Country Club Inc. proposal, adoption of a Planned Development Volume 60 - Page 353 City of Newport Beach City Council Minutes January 24, 2012 Community Plan for both applications, and the site development plan components Community Development Director Brandt emphasized that Items 14 and 15 are two separate applications that, although related, are independent of one another. She reported that staff believes that both applications cannot be approved as submitted because of the overlap to the 133-acre golf club component. She added that the Planning Commission recommended that Council adopt a series of actions that include environmental clearance and appropriate legislative standards to set the framework to consider the site development plans for both applications. She noted that the Planning Commission also recommended adoption of the site development plan for the tennis club component since there was only one proposal. Additionally, she reported thnt the Planning Commission reviewed both site development plans for the golf club component and recommended only one of the plans. Principal Planner Campbell provided a PowerPoint presentation to address the necessary approvals, allowed uses; and details of the applicant's requests. fie addressed the Golf Realty Fund site plan, new parking lot area, new clubhouse, tennis club site, the five single - family residential units (villas), tennis courts, the new stadium court, hotel units (bungalows), and compliance with the California Environmental Quality Act (CEQA). He stated that there were no significant impacts, but included mitigating measures. Mayor Gardner expressed disappointment with the errors in the MNDs, and with the recreational and traffic impacts. Principal Planner Campbell reported that the analysis is Based on the number of tennis cotu•ts, addressed the formulas used by traffic engineers and schedules for playing tennis. He further addressed the development transfer request, recommendations of the Planning Commission, and details of the development agreement. He reported that there are changes to the development agreement regarding the public benefit fees. Discussion ensued regarding whether the clubhouse design has the consent of the Country Club members; and the peak traffic activity and analysis, and current uiderutiliration of the Facility. Regarding property ownership, City Attorney Harp noted that not all owners need to sign the development agreements; however, he recommended continuing the item to have all entities sign it before the item returns to Council. Principal Planner Campbell discussed the recommendations and referenced two exhibits that should be attached to the Planned Community Development Plan. Mayor Gardner invited the applicant to address the City Council. Robert OHill, applicant, utilized a PowerPoint presentation to provide a brief history, background of the property, and the Master Plan. He also displayed the proposed bungalows and discussed the community outreach, rezoning of the property, previous General Plan Amendments, evolution of the plan, frontage roads, and termination of the easement. He discussed the number of parking stalls, landscnpe buffers, the parking lot design, hazards related to the frontage road, improvements along Coast Highway, and Coastal Commission concerns relative to preserving views. lie addressed the existing tennis court fencing, visitor serving uses, stadium tennis court, clubhouse and meeting center. He displayed the bungalow amenities, architectural style, site plan, and bungalow floor plans. He expressed the opinion that this is a planned community and believed that both sites had balanced grading. He addressed cart - storage areas, aesthetic enhancements,, banquet facilities, senior classic tournament staging, plan comparisons, elevations, and grading. He reported that some of the co- owners have different plans but pointed out that he is the managing Omer. Volume 60 - Page 354 40 City of Newport Beach City Council Minutes January 24, 2012 Mr. OHill affirmed that lie has read and agrees with all Conditions of Approval. Motion by Council Member Rosanskv, seconded by Mayor Pro Tern Curry to table Item 14 in order to hear and discuss Item 15. The motion carried by the following roll call vote: Ayes: Council Member Hill, Council Member Rosansky, Mayor Pro Tern Curry, Mayor Gardner, Council Member Selich, Council Member Henn, Council Member Daigle City Attorney Harp reported that he received a legal memorandum from Latham and Watkins regarding the conversion analysis and noted that copies were made available for public review. 15. IyEWPORT BEACH COUNTRY CLUB (PA2008 -162) - NEWPORT BEACH COUNTI CD B, INC. - 1600 EAST COAST HIGHWAY - PROPOSAL TO REDEVELOP �ND EXPAND THE EXISTING EXISTING GOLF CLUBHOUSE TO 66,000 SQUARE 7EET, ASSO ATED PARKING LOT, AND RECONSTRUCT THE ENTRY DRIVE EAST COAST GHWAY (C- 6046). [100- 20121 // Principal Plan r Campbell provided a PowerPoint presentation to discuss 1 dislative actions and the dpplica I . He reviewed the site plan, parking lot, access, new gre s keeper facility, secondary access f the project site, existence of an access easement, commendatiens for approval of the. site velopmeat plan by the Planning Commission, c ages agreed to by the applicant, compliance ' h the California Environmental Quality A (CEQA), areas of focus, and mitigation of possible pacts. Mayor Gardner expressed con rn with the underground cart t rrage building as it relates to water quality• excessive parltiinn , a larger banquet Facility the need for additional meeting space, and the possibility of nacre d public events believed that the bigger banquet facility will have a bigger impact th n what is sugge d in the report. Principal Planner Campbell noted that it will not have a 'gaificant i act on the environment and the City is trying to avoid regulating the types of vents o urring in the new banquet facility. He addressed the basis for determining trip 6 ne• tion rates. He discussed the development agreement and public benefit fees related to a clubhouse, and reported on the amendment recommended for the public benefit fees. Mayor Gardner invited the applicant to dress the Ci Council. David Wooten, CEO of the Newpo • Beach Country Club nc. (NBCC), requested approval to build a new clubhouse for the untry club and introduce various interested parties. He expressed appreciation to staff nd requested that Council act on the recommendation of the Planning Commission to app ove the project. Shawna Schaffner, C Planning, spoke on behalf of NBCC Inc. and presented a brief background and hry of the project, need for modernization of the cL�' house, and the new fitness facility: Sddressed significant changes to the plan, ae well as tjigsite plan, features of the plan, addi l landsca ping, an entry gate, setbacks, number of part', g stalls, entries into the golf cl house, delivery access, service yard, one -way access road, reel al of planters, the business yodel and the banquet facility with expectation of a slight increas in demand. She addi ed the number of events and tournaments they anticipate, proposed crease in usage o he banquet facility. She discussed technical components, including the lands ping o1 the a re perimeter of the parting lot and along Coast Highway, grading, and the reduc 'on of lcihuck haLBc associated with the input of fill material, building height, trafficd j culation analyses, and parking lot orientation and elevation. She stated that all conditio q Volume 60 - Page 356 42 City Council Attachment CC5 PCDP — Tennis Club Site 49 50 Newport Beach Country Club Planned Community Development Plan Amendment Date: March 13, 2012 Ordinance No. _ Adopted 51 TABLE OF CONTENTS 1.0 Introduction and Purpose ................................................ ............................... 4 2.0 General Conditions and Regulations ............................... ............................... 5 3.0 Land Use and Development Regulations ........................ ............................... 10 3.1 Golf Club ............................................................... ............................... 10 A. Golf Course ..................................................... ............................... 10 B. Golf Clubhouse and Ancillary Uses ................. ............................... 10 1. Building Area .............................................. ............................... 10 2. Building Height ........................................... ............................... 10 3. Permitted Ancillary Uses ............................ ............................... 10 4. Parking ....................................................... ............................... 11 5. Fencing ...................................................... ............................... 11 3.2 Tennis Club ........................................................... ............................... 11 A. Tennis Courts .................................................. ............................... 11 1. Number of Courts ....................................... ............................... 11 B. Tennis Clubhouse and Ancillary Uses ............. ............................... 12 1. Building Area .............................................. ............................... 12 2. Building Height ........................................... ............................... 12 3. Permitted Ancillary Uses ............................ ............................... 12 4. Parking. ..... ............................................................................. - 12 3.3 The Villas .............................................................. ............................... 12 1. Number of Units ......................................... ............................... 12 2. Development Standards ............................. ............................... 12 3.4 The Bungalows ..................................................... ............................... 13 1. Number of Units ......................................... ............................... 13 2. Permitted Ancillary Uses ............................ ............................... 13 3. Building Area .............................................. ............................... 14 4. Building Height ........................................... ............................... 14 5. Building Setbacks ....................................... ............................... 14 6. Parking ....................................................... ............................... 14 3.5 Signs ..................................................................... ............................... 14 A. Sign Allowance ................................................ ............................... 14 B. Sign Standards ................................................ ............................... 15 4.0 Site Development Review ............................................... ............................... 16 4.1 Purpose ................................................................ ............................... 16 4.2 Application ............................................................ ............................... 16 4.3 Findings ................................................................ ............................... 16 4.4 Contents ............................................................... ............................... 17 4.5 Public Hearing - Required Notice ......................... ............................... 17 4.6 Expiration and Revocation Site Plan Review Approvals ...................... 18 4.7 Fees ...................................................................... ............................... 18 2 52 4.8 Minor Changes by the Community Development Director ................... 18 LIST OF EXHIBITS Exhibit Name Exhibit Number VicinityAerial Map ................................................................ ............................... A Conceptual Master Site Plan ................................................ ............................... B LIST OF TABLES Table Name Page The Villas Development Standards ....................................... ............................... 13 3 53 1.0 INTRODUCTION AND PURPOSE The Newport Beach Country Club Planned Community District (the PCD) is composed of the Golf Club, Tennis Club, Bungalows and Villas facilities, totaling approximately 433 140 acres. The PCD has been developed in accordance with the Newport Beach General Plan and is consistent with the Local Coastal Land Use Plan. The purpose of this PCD is to provide for the classification and development of coordinated, cohesive, comprehensive planning project with limited mixed uses, including the private Golf Club, Tennis Club, 27 short-term rental units called the Bungalows with a spa /fitness area, and 5 semi - custom single -unit residential dwellings called the Villas. Whenever the regulations contained in the PCD Regulations conflict with the regulations of the Newport Beach Municipal Code, the regulations contained in the PCD Regulations shall take precedence. The Newport Beach Municipal Code shall regulate all development within the PCD when such regulations are not provided within the PCD Regulations. 0 54 2.0 GENERAL CONDITIONS AND REGULATIONS 1. Alcoholic Beverage Consumption The consumption of alcoholic beverages within the PCD shall be in compliance with the State of California Department of Alcoholic Beverage Control and the Newport Beach Municipal Code. A use permit shall be required if the establishment operates past 11:00 p.m. any day of the week and a minor use permit shall be required if the establishment operates until 11:00 p.m. any day of the week. 2. Amplified Music All amplified music played after 10:00 p.m. within the PCD shall be confined within the interior of a building unless a Special Events Permit is obtained. 3. Archaeological /Paleontological Resources Development of the site is subject to the provisions of City Council Policies K -5 and K -6 regarding archaeological and paleontological resources. 4. Architectural Design All development shall be designed with high quality architectural standards and shall be compatible with the surrounding uses. The development should be well- designed with coordinated, cohesive architecture and exhibiting the highest level of architectural and landscape quality in keeping with the PCD's prominent location in the Newport Center Planning Area. Massing offsets, variation of roof lines, varied textures, openings, recesses, and design accents on all building elevations shall be provided to enhance the architectural style. Architectural treatments for all ancillary facilities (i.e. storage, truck loading and unloading, and trash enclosures) shall be provided. 5. Building Codes Construction shall comply with applicable provisions of the California Building Code and the various other mechanical, electrical and plumbing codes related thereto as adopted by the Newport Beach Municipal Code. 6. Exterior Storage Areas There shall be no exterior storage areas permitted with the exception of the greenskeeper /maintenance area which shall be enclosed by a minimum six foot plastered block wall. 5 515 7. Flood Protection Development of the subject property will be undertaken in accordance with the flood protection policies of the City. 8. Grading and Erosion Control Grading and erosion control measures shall be carried out in accordance with the provisions of the Newport Beach Excavation and Grading Code and shall be subject to permits issued by the Community Development Department. 9. Gross Floor Area Gross floor area shall be defined as the total area of a building including the surrounding exterior walls. 10. Height and Grade The height of any structure within the PCD shall not exceed fifty (50) feet, unless otherwise specified. The height of a structure shall be the vertical distance between the highest point of the structure and the grade directly below. In determining the height of a sloped roof, the measurement shall be the vertical distance between the grade and the midpoint of the roof plane, provided that no part of the roof shall be extend more than five (5) feet above the permitted height in the height limitation zone, and any amendments shall be subject to the review and approval of the Community Development Director 11. Landscaping /Irrigation Landscaping and irrigation shall be provided in all areas not devoted to structures, parking lots, driveways, walkways, and tennis courts to enhance the appearance of the development, reduce heat and glare, control soil erosion, conserve water, screen adjacent land uses, and preserve the integrity of PCD. Landscaping and irrigation shall consist of a combination of trees, shrubs, groundcover and hardscape improvements. Landscaping shall be prepared in accordance with the Landscaping Standards and Water- Efficient Landscaping Sections of the Newport Beach Municipal Code and installed in accordance with the approved landscape plans prepared by a licensed landscape architect. 12. Lighting — Outdoor All new outdoor lighting shall be designed, shielded, aimed, located and maintained to shield adjacent uses /properties and to not produce glare onto adjacent uses /properties. Lighting plans shall be prepared in compliance with the Outdoor Lighting Section of the Newport Beach Municipal Code and shall be prepared by a licensed electrical 0 50 engineer. All lighting and lighting fixtures that are provided shall be maintained in accordance with the approved lighting plans. 13. Lighting — Parking & Walkways All lighting and lighting fixtures that are provided shall be maintained in accordance with the approved lighting plans. Light standards within parking lots shall be the minimum height required to effectively illuminate the parking area and eliminate spillover of light and glare onto adjoining uses /properties and roadways. Parking lots and walkways accessing buildings shall be illuminated with a minimum of 0.5 foot - candle average on the driving or walking surface during the hours of operation and one hour thereafter. Lighting plans shall be prepared in compliance with the Outdoor Lighting Section of the Newport Beach Municipal Code and shall be prepared by a licensed electrical engineer. If the applicant wishes to deviate from this lighting standard, a lighting plan may be prepared by the applicant and submitted to the Community Development Director for review and approval. 14. Loading Areas for Non - Residential Uses All loading and unloading of goods delivery shall be performed onsite. Loading platforms and areas shall be screened from public view. 15. Parking Areas Parking spaces, driveways, maneuvering aisles, turnaround areas, and landscaping areas of the parking lots shall be kept free of dust, graffiti, and litter. All components of the parking areas including striping, paving, wheel stops, walls, and light standards of the parking lots shall be permanently maintained in good working condition. Access, location, parking space and lot dimensions, and parking lot improvements shall be in compliance with the Development Standards for Parking Areas Section of the Newport Beach Municipal Code. 16. Property Owner Approval Written property owner approval shall be required for the submittal of any site development review application and /or prior to grading and /or building permit issuance. 17. Outdoor Paging Outdoor paging shall be permitted at the Golf Club to call individuals to the tees and at the Tennis Club to call points during tennis tournaments. 7 57 18. Sewage Disposal Sewage disposal service facilities for the PCD will be provided by Orange County Sanitation District No. 5 and shall be subject to applicable regulations, permits and fees as prescribed by the Sanitation District. 19. Screening of Mechanical Equipments All new mechanical appurtenances (e.g., air conditioning, heating, ventilation ducts and exhaust vents, swimming pool and spa pumps and filters, transformers, utility vaults and emergency power generators) shall be screened from public view and adjacent land uses. The enclosure design shall be approved by the Community Development Department. All rooftop equipment (other than vents, wind turbines, etc.) shall be architecturally treated or screened from off -site views in a manner compatible with the building materials prior to final building permit clearance for each new or remodeled building. The mechanical appurtenances shall be subject to sound rating in accordance with the Exterior Noise Standards Section of the Newport Beach Municipal Code. Rooftop screening and enclosures shall be subject to the applicable height limit. 20. Screening of the Villas from Tennis Courts Adequate buffering between the Villas and tennis courts shall be provided and subject to the Site Development Review process. The exterior perimeter of the tennis courts facing Granville Condominiums, Granville Drive, and the Tennis Clubhouse parking lot shall be screened by a minimum ten -foot high chain link fence covered by a wind screen. Wind screen shall be maintained in good condition at all time. 21. Screening of the Villas' Pool /Spa Equipment All pool and /or spa equipment shall be enclosed by a minimum five -foot high block wall plastered or otherwise textured to match the building. 22. Special Events Temporary special community events, such as such as PGA Senior Classic golf tournaments, Team Tennis, Davis Cup Matches, and other similar events, are permitted in the PCD, and are subject to the Special Events Chapter of the Newport Beach Municipal Code. Temporary exterior storage associated with approved special events may be permitted provided it is appropriately screened and regulated with an approved Special Event Permit. 0 WN 23. Temporary Structures and Uses Temporary structures and uses, including modular buildings for construction - related activities are permitted. 24. Trash Container Storage for Residential Dwellings Trash container storage shall be out of view from public places, and may not be located in the required parking areas. If trash container storage areas cannot be located out of public view, they shall be screened from public view. Screening shall consist of fences, walls, and landscaping to a height at least 6 inches above the tops of the containers. 25. Trash Enclosures for Non - Residential Uses All trash enclosures for non - residential uses shall be provided and in accordance with the Solid Waste and Recyclable Materials Storage of the Newport Beach Municipal Code. 26. Tennis Club Site Phasing Plan- The phasing plan for the tennis club site which consists of the tennis club, villas and bungalows shall be subject to a site development review process. 27. Water Service Water service to the PCD will be provided by the City of Newport Beach and will be subject to applicable regulations, permits and fees as prescribed by the City. 0 59 3.0 LAND USE AND DEVELOPMENT REGULATIONS 3.1 Golf Club Refer to Exhibit B - Conceptual Master Site Plan for the general location and placement of the golf course and clubhouse. A. Golf Course An 18 -hole championship golf course and related facilities (i.e. putting green, driving range, snack bar, starter shack, restroom facilities, etc.). B. Golf Clubhouse and Ancillary Uses 1. Building Area The maximum allowable gross floor area for a golf clubhouse building shall be 56,000 square feet, exclusive of any enclosed golf cart storage areas ramp and washing area. The greens keeper /maintenance buildings, snack bar, separate golf course restroom facilities, starter shack, and similar ancillary buildings are exempt from this development limit. 2. Building Height The maximum allowable building height for the Golf Clubhouse shall be 50 feet and shall be measured in accordance with the Height and Grade definition of Section 2.0 General Conditions and Regulation of the PCD. 3. Permitted Ancillary Uses The following ancillary uses are allowed: • Golf shop • Administrative Offices • Dining, and event areas • Kitchen & Bar areas • Banquet Rooms • Men and Women's Card Rooms • Health and fitness facility • Restroom and Locker facilities • Golf Club storage areas • Employee lounge /lunch areas • Meeting rooms • Golf Cart Parking Storage and Washing Area • Separate Snack Bar 10 N• • Separate Starter Shack • Separate Golf Course Restrooms • Hand Carwash Area • Greenskeeper Maintenance Facility • Temporary Construction Facilities • Guard House • Others (subject to an approval of the Community Development Director) 4. Parking Parking for the Golf Course and Golf Clubhouse shall be in accordance with following parking ratios (source: from Table 2 of the Circulation and Parking Evaluation by Kimley -Horn and Associates, Inc., September 2009 for Newport Beach Country Club — Clubhouse Improvement Project): Golf Course: 8 spaces per hole Golf Clubhouse: Dining, assembly & meeting rooms: 1 per 3 seats or 1 per 35 square feet Administrative Office: 4 per 1,000 square feet Pro Shop: 4 per 1,000 square feet Maintenance Facility: 2 per 1,000 square feet Health and Fitness Facility: 4 per 1,000 square feet The design of the parking lot and orientation of vehicular aisles and parking spaces shall be subject to the review and approval of the City Traffic Engineer and Community Development Director. 5. Fencing Golf Course perimeter fencing shall be wrought -iron with a maximum permitted height of six (6) feet. 3.2 Tennis Club Refer to Exhibit B - Conceptual Master Site Plan for the general location and placement of the tennis courts and clubhouse. A. The Tennis Courts 1. Number of courts The maximum allowable tennis courts shall be seven lighted tennis courts (six lighted championship courts and one lighted stadium - center court). 11 01 B. Tennis Clubhouse and Ancillary Uses 1. Building Area The maximum allowable gross floor area for the Tennis Clubhouse shall be 3,725 square feet. 2. Building Height The maximum allowable building height for the Tennis Clubhouse shall be 30 feet, and shall be measured in accordance with the Height and Grade definition of Section 2.0 General Conditions and Regulations of the PCD. 3. Permitted Ancillary Uses The following ancillary uses are allowed: • Tennis Shop • Administrative Offices • Concessions • Restroom and Locker facilities • Storage areas • Spectator seating • Others (sublect to an approval of the Community Development Director 4. Parkin Parking for the Tennis Clubhouse and Courts shall be a minimum of 28 parking spaces. 3.3. The Villas Refer to Exhibit B - Conceptual Master Site Plan for the general location and placement of the villas. Number of Units The maximum allowable number of single - family residential units shall be five (5). 2. Development Standards The following development standards shall apply to the Villas: 12 02 The Villas Development Standards Table Villa Designation Villa A TTM Lot #1 Villa B TTM Lot #2 Villa C TTM Lot #3 Villa D TTM Lot #4 Villa E TTM Lot #5 Lot Size 5,000 square feet minimum Lot Coverage (Maximum) 70% 650/6 550% 400/6 55% Building Height 39 feet, measured in accordance with the Height and Grade definition of Section 2.0 General Conditions and Regulations Building Side Yard 3 feet minimum Setbacks Building Front and 5 feet minimum Rear Yard Setbacks Enclosed Parking 2 2 3 3 2 Space for Each Unit Open Guest Parking Space for One space - could be located on the private driveway — No overhang to the private street /cul -de -sac is allowed Each Unit 3.4. The Bungalows Refer to Exhibit B - Conceptual Master Site Plan for the general location and placement of the bungalows, concierge and quest center, and spa facility. Number of Units The maximum allowable number of the Bungalows shall be 27 short -term quest rental units to be built in a clustered setting of single and two -story buildings. 2. Permitted Ancillary Uses The following ancillary uses are allowed: Concierge office and quest meeting facility Swimming pool and Jacuzzi Spa facility that includes treatment rooms, fitness areas, and snack bar serving drinks, snacks and light breakfast and lunch items 13 03 3. Buildinq Area The maximum allowable gross floor area for the bungalows shall be 28,300 square feet with a 2,200 square foot concierge & quest center and a 7,500 square -foot spa facility. 4. Building Height The maximum allowable building height for the bungalows shall be 31 feet, measured in accordance with the Height and Grade definition of Section 2.0 General Conditions and Regulations of the PCD. 5. Building Setbacks The setback requirement shall be a minimum of 5 feet from any property line. 6. Parking Parking for the bungalows shall be a minimum of 34 parking spaces located in proximity to the use. 3.5 Signs A. Sign Allowance One (1) single or double- faced, ground- mounted entrance identification sign shall be allowed at Newport Beach Tennis Club's main entrance (Country Club Drive and Irvine Terrace). Total maximum signage area shall not exceed seventy -five (75) square feet and shall not exceed five (5) feet in height. 2. One (1) single or double- faced, ground- mounted entrance identification sign shall be allowed at or near the vicinity of the Newport Beach Country Club's secondary entrance (Granville). Total maximum signage area shall not exceed seventy -five (75) square feet and shall not exceed five (5) feet in height. 3. Building identification signs shall be allowed; one for each street frontage. If freestanding, this sign type shall not exceed a maximum height of five (5) feet in height. The maximum signage area shall not exceed seventy (70) square feet. 4. Vehicular and pedestrian directional signs shall be allowed. This sign type may occur as a single -faced or double -faced sign. The sign shall be sized to allow for proper readability given the number of lines of copy, speed of traffic, setback off the road and viewing 14 04 distance. This sign type shall not exceed a maximum of six (6) feet in height. 5. One (1) single or double faced, ground- mounted identification sign shall be allowed at the entrance road to the Bungalows. Total maximum signage area shall not exceed seventy -five (75) square feet and shall not exceed five (5) feet in height and fifteen 05) feet in length. B. Sign Standards The design and materials of all permanent signs in the Newport Beach Country Club Planned Community District shall be in accordance with Sign Section 3.5, unless otherwise approved by the Community Development Director. 2. All permanent signs shall be subject to a sign permit issued by the Community Development Department. 3. All signs shall be subject to the review of the City Traffic Engineer to ensure adequate sight distance in accordance with the provisions of the Newport Beach Municipal Code. 4. Sign illumination is permitted for all sign types. No sign shall be constructed or installed to rotate, gyrate, blink or move, or create the illusion of motion, in any fashion. 5. All permanent signs together with the entirety of their supports, braces, guys, anchors, attachments and decor shall be properly maintained, legible, functional and safe with regards to appearance, structural integrity and electrical service. 6. Temporary signs that are visible from any public right -of -way shall be allowed up to a maximum of sixty (60) days and subject to a temporary sign permit issued by the Community Development Department. 7. If the applicant wishes to deviate from the sign standards identified herein, a comprehensive sign program may be prepared or a modification permit application may be submitted for review and consideration by the Zoning Administrator in accordance with the applicable provisions of the Newport Beach Municipal Code. 15 05 4.0 SITE DEVELOPMENT REVIEW 4.1 Purpose The purpose of the Site Development Review process is to ensure new development proposals within the Newport Beach Country Club Planned Community Development are consistent with the goals and policies of the General Plan, provisions of this Planned Community Development Plan, the Development Agreement and the findings set forth below in sub - section 4.3. 4.2 Application An approval of Site Development Review application by the Planning Commission shall be required for the construction of any new structure prior to the issuance of a grading or building permit or issuance of an approval in concept for Coastal Commission. Signs, tenant improvements to any existing buildings, kiosks, and temporary structures are exempt from the site development review process and subject to the applicable City's permits. The decision of Planning Commission is the final, unless appealed in accordance with the Newport Beach Municipal Code. 4.3. Findings In addition to the general purposes set forth in sub - section 4.1 and in order to carry out the purposes of this chapter as established by said section, the Site Development Review procedures established by this Section shall be applied according to and in compliance with the following findings: 1. The development shall be in compliance with all other provisions of the Planned Community District Plan; 2. The development shall be compatible with the character of the neighboring uses and surrounding sites and shall not be detrimental to the orderly and harmonious development of the surroundings and of the City; 3. The development shall be sited and designed to maximize the aesthetic quality of the project as viewed from surrounding roadways and properties, with special consideration given to the mass and bulk of buildings and the streetscape on Coast Highway; and 16 NN 4. Site plan and layout of buildings, parking areas, pedestrian and vehicular access ways, landscaping and other site features shall give proper consideration to functional aspects of site development. 4.4. Contents The Site Development Review application shall include all of the information and materials specified by the Community Development Director and any additional information review by the Planning Commission in order to conduct a thorough review of the project in question. The following plans /exhibits may include, but not limited to the following: 1. An aerial map showing the subject property, adjacent properties and identifying their uses. 2. Comprehensive elevations and floor plans for new structures with coordinated and complimentary architecture, design, materials and colors. 3. A parking and circulation plan showing golf cart and pedestrian paths in addition to streets and fire lanes. 4. A comprehensive, cohesive and coordinated preliminary landscape plan. 5. A comprehensive, cohesive and coordinated lighting plan showing type, location and color of all exterior lighting fixtures. 6. Comprehensive text and graphics describing the design philosophy for the architecture, landscape architecture, material and textures, color palette, lighting, and signage. 7. Text describing drainage and water quality mitigation measures. 8. A statement that the proposed new structure is consistent with the goals, policies, and actions of the General Plan and Planned Community Development Plan. 4.5 Public Hearing — Required Notice A public hearing shall be held on all site development review applications. Notice of such hearing shall be mailed not less than ten (10) days before the hearing date, postage prepaid, using addresses from the last equalized assessment roll or, alternatively, from such other records as contain more recent addresses, to owners of property within a radius of three hundred (300) feet of the exterior boundaries of the subject property. It shall be the responsibility of the applicant to obtain and provide to the City the names and addresses of owners as required by this Section. In addition to the mailed notice, such hearing shall be posted in 17 M not less than two (2) conspicuous places on or close to the property at least ten (10) days prior to the hearing. 4.6 Expiration and Revocation Site Development Review Approvals 1. Expiration. Any site development review approved in accordance with the terms of this planned community development plan shall expire within twenty -four (24) months from the effective date of final approval as specified in the Time Limits and Extensions Section of the Newport Beach Municipal Code, unless at the time of approval the Planning Commission has specified a different period of time or an extension is otherwise granted. 2. Violation of Terms. Any site development review approved in accordance with the terms of this planned community development plan may be revoked if any of the conditions or terms of such site development review are violated or if any law or ordinance is violated in connection therewith. 3. Public Hearing. The Planning Commission shall hold a public hearing on any proposed revocation after giving written notice to the permittee at least ten (10) days prior to the hearing, and shall submit its recommendations to the City Council. The City Council shall act thereon within sixty (60) days after receipt of the recommendation of the Planning Commission. 4.7. Fees The applicant shall pay a fee as established by Resolution of the Newport Beach City Council to the City with each application for Site Development Review under this planned community development plan. 4.8 Minor Changes by the Director 1. The following minor changes to an approved site plan may be approved by the Director in compliance with Section 20.54.070 (Changes to an approved project) of the Newport Beach Municipal Code: a) Minor relocation of any proposed structure. b) Reduction in the square footage of any structure and a commensurate reduction in required parking, if applicable. c) Reconfiguration of the golf clubhouse parking lot, including drive aisles and /or parking spaces, subject to review and approval of the City Traffic Engineer. d) Reconfiguration of parking lot landscaping. e) Modification of the approved architectural style. f) Any other minor change to the site plan provided it does not IN W: increase any structure area, height, number of units, number of hotel rooms, and /or change of use. 2. Any proposed changes that are not deemed minor shall be subject to review and approval by the Planning Commission. 19 70 Exhibit A 20 7-1 Exhibit B �lQ' 4 r ' 1 a • I� S.4,, rL 4e Ei • p •� Q • , to c o z . 3 \ o� ° 10 PO y�P � ^ • � Golf Course , LGolf Clubhouse \ ' Tennis Clubhouse, � Parking Lot • Bungalows & Villas ' O A W :T HWYF 0� �� S E 000HE TER • ♦ {'� Z y m O 0 JL A uj Q4 S lF i� m < FOR 1?� yty : �'• y A �(` F '9 f Uj 0 899tt 21 73 74 City Council Attachment CC6 Alternative Site Plan i �� 70 THE VILLAS � THE GOLF CLUB THE >l� 4 E I n s t\ 9, ) Loom -� I ' - -- - �� i3c5 nY II MASTER PLAN ALTERNATE SITE PLAN GOLF CLUB SUB -AREA •GOLF CLUBHOUSE -SNACK STAND •GREENSKEEPER BUILDINGS -HAND CAR WASH AREA This Alternative Site Plan for the Golf Club site of Site Development Review No. SD2011 -002 shall not be effective until such time the Newport Beach Country Club, Inc. or its successor in interest in Development Agreement No. 2010 -005 elects to waive its right to construct Site Development Review No. SD2011 -003 in favor of constructing the Alternative Site Plan. This waiver shall be made in writing to the City Manager for review and approval. NRCC Planned Community s r . E%HIBIT ARCHITECTURE f 0o e�lsr// b¢na 9aq G YNS 1 9199M ilfill fnM 9993M KfiG I OF1 77 �Lg City Council Attachment CC7 Revised Development Agreement �9 20 RECORDING REQUES7TD BY AND WHEN RECORDED RETURN T0: City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92663 -3884 Attn: City Clerk (Space Above This Line Is for Recorder's Use Only) This Agreement is recorded at the request and for the benefit of the City of Newport Beach and is exempt from the payment of a recording fee pursuant to Government Code §§ 6103 and 27383. DEVELOPMENT AGREEMENT between CITY OF NEWPORT BEACH and GOLF REALTY FUND CONCERNING PROPERTIES LOCATED IN NEWPORT CENTER WITHIN THE NEWPORT BEACH COUNTRY CLUB PLANNED COMMUNITY DISTRICT I AlOW773 IIi115 � U DEVELOPMENT AGREEMENT (Pursuant to California Government Code Sections 65864- 65869.5) This DEVELOPMENT AGREEMENT (the "Agreement ") is dated for reference purposes as of the _ day of , 20124- (the "Agreement Date'), and is being entered into by and between the City of Newport Beach ( "City "), and Golf Realty Fund, a California limited partnership "AwneFProperty Owner "). City and AwneFProoeny Owner are sometimes collectively referred to in this Agreement as the `Parties' and individually as a "Party." RECITALS A. ro rt OwneF Owner is the managing owner of and owns a fee interest in title to that certain real property located in the City of Newport Beach, County of Orange, State of California which is more particularly described in the legal description attached as Exhibit "A" and depicted on the site map attached hereto as Exhibit B (the, "Property "). The Property 6 Weated within and consists of approximately 7 44-$ -acres within of-die area shown on the City's Zoning Map as the Newport Beach Country Club Planned Community District. The Property comprises the area shown on Exhibit B as The Villas Sub- Area, The Tennis Club Sub -Area. and The Bungalows Sub -Area. B. In order to encourage investment in, and commitment to, comprehensive planning and public facilities financing, strengthen the public planning process and encourage private implementation of the local general plan, provide certainty in the approval of projects in order to avoid waste of time and resources, and reduce the economic costs of development by providing assurance to property owners eWn@FS that they may proceed with projects consistent with existing land use policies, rules, and regulations, the California Legislature adopted California Government Code sections 65864- 65869.5 (the "Development Agreement Statute ") authorizing cities and counties to enter into development agreements with persons or entities having a legal or equitable interest in real property located within their jurisdiction. C. On March 13, 2007, the City Council adopted Ordinance No. 2007 -6, entitled "Ordinance Amending Chapter 15.45 of City of Newport Beach Municipal Code Regarding Development Agreements" (the "Development Agreement Ordinance'). This Agreement is consistent with the Development Agreement Ordinance. D. As detailed in Section 3 of this Agreement, AwoeFPm2tay Owner has agreed to provide the following significant public benefits as consideration for this Agreement: Develepmenle- Visitor- Serving Uses within the Coastal Zone, and other economic contributions including the payment of a Public Benefit Fee. E. This Agreement is consistent with the City of Newport Beach General Plan ( "General Plan"), including without limitation the General Plan's designation of the Property as •inn 7n.._,.. and Reef...,:.,_ MU- H3/PR" (Mixed Use Horizontal /(Parks and Recreation) (Anomaly 46). the Coastal Land Use Plan's designation as "MU-H/PR (Mixed Use Horizontal / Parks & Recreation ". and -the Newport Beach Country Club Planned Community District (P 29944 °54that was adopted in 1997 by Ordinance No. 97 -10 in order to establish appropriate zoning to regulate land use and development of the Property consistent with A10 W773 W01M II MW 4- t• the General Plan. and the Newport Beach Country Club Planned Community Development Plan No PC2005 -002 approved for the Property on March 27. 2012 by Ordinance No. F. In recognition of the significant public benefits that this Agreement provides, the City Council has found that this Agreement: (i) is consistent with the City of Newport Beach General Plan as of the date of this Agreement; (ii) is in the best interests of the health, safety, and general welfare of City, its residents, and the public; (iii) is entered into pursuant to, and constitutes a present exercise of, City's police power; (iv) is consistent and has been approved consistent with the Final Environmental Impact Report for the City of Newport Beach General Plan 2006 Update (State Clearinghouse No. 2006011119) and the Mitigated Negative Declaration No. ND2010 -008 for the Newport Beach Country Club Planned Community District (PA 4009452) approved by the City Council on or before the Agreement Date, both of which analyze the environmental effects of the proposed development of the Project on the Property; and (v) is consistent and has been approved consistent with provisions of California Government Code section 65867 and City of Newport Beach Municipal Code chapter 15.45. G. On October 20. 2011 and November 17. 2011 -, City's Planning Commission held ti- public hearings on this Agreement, and on November 17. 2011. made findings and determinations with respect to this Agreement, and recommended to the City Council that the City Council approve this Agreement. H. On January 24. 2012 and March 13, 2012 ,201 the City GCouncil also held e,--public hearings on this Agreement and considered the Planning Commission's recommendations and the testimony and information submitted by City staff, 9wfw rocertv Owner, and members of the public. On March 27. 2012 29+_, consistent with applicable provisions of the Development Agreement Statute and Development Agreement Ordinance, the City Council adopted its Ordinance No. 2012- (the "Adopting Ordinan ce "), finding this Agreement to be consistent with the City of Newport Beach General Plan and approving this Agreement. AGREEMENT NOW, THEREFORE, City and OwnefEmperty Owner agree as follows: 1. Definitions. In addition to any terms defined elsewhere in this Agreement, the following terms when used in this Agreement shall have the meanings set forth below: "Action" shall have the meaning ascribed in Section 8.10 of this Agreement. " Adopting Ordinance" shall mean City Council Ordinance No. 2012 -3— _approving and adopting this Agreement. "AAmement" shall mean this Development Agreement, as the same may be amended from time to time. "Agreement Date" shall mean March 27. 2012, a-•- abe e, which date is the date the City Council adopted the Adopting Ordinance. A10-W73 w01 %11 KNa �3 "CE A" shall mean the California Environmental Quality Act (California Public Resources Code Sections 21000 - 21177) and the implementing regulations promulgated thereunder by the Secretary for Resources (California Code of Regulations, Title 14, section 15000 er seq.) ( "CEQA Guidelines "), as the same may be amended from time to time. A 1 W773 oUI.06.11 IlNA �4 "C- ty" shall mean the City of Newport Beach, a California charter city. "City Council" shall mean the governing body of City. "City's Affiliated Parties" shall have the meaning ascribed in Section 109.1 of this Agreement. "Claim" shall have the meaning ascribed in Section 109.1 of this Agreement. "CPI Index" shall mean the Consumer Price Index published from time to time by the United States Department of Labor for all urban consumers (all items) for the smallest geographic area that includes the City or, if such index is discontinued, such other similar index as may be publicly available that is selected by City in its reasonable discretion. "Cure Period" shall have the meaning ascribed in Section 87.1 of this Agreement. "Default" shall have the meaning ascribed to that term in Section 89.1 of this Agreement. "Develoo" or "Development" shall mean to improve or the improvement of the Property for the purpose of completing the structures, improvements, and facilities comprising the Project, including but not limited to: grading; the construction of infrastructure and public facilities related to the Project, whether located within or outside the Property; the construction of all of the private improvements and facilities comprising the Project; the preservation or restoration, as required of natural and man -made or altered open space areas; and the installation of landscaping. The terms "Develop" and "Development," as used herein, do not include the maintenance, repair, reconstruction, replacement, or redevelopment of any structure, improvement, or facility after the initial construction and completion thereof. "Development Agreement Ordinance' shall mean Chapter 15.45 of the City of Newport Beach Municipal Code. "Development Agreement Statute" shall mean California Government Code Sections 65864 - 65869.5, inclusive. "Development Exactions" shall mean any requirement of City in connection with or pursuant to any ordinance, resolution, rule, or official policy for the dedication of land, the construction or installation of any public improvement or facility, or the payment of any fee or charge in order to lessen, offset, mitigate, or compensate for the impacts of Development of the Project on the environment or other public interests. "Development Plan" shall mean the Newport Beach Planned Community BistriefDevelooment Plan No. PC2005 -002 fur the Property adopted by Ordinance No. 2012 -2, Vesting Tentative Tract Map No. NT2005 -003. Site Development Review No. SD2011 -002 as approved by Resolution No. 2012 -10 for the Proceny, Limited Term Permit No. XP2011 -004 and Conversion of Development Rights as approved by City Council -end on or before the Agreement Date, as the same may be amended from time to time consistent with this Agreement. A1nm773 WOIWAIMN 8s "Development Regulations" shall mean the following regulations as they are in effect as of the Agreement Date and to the extent they govern or regulate the development of the Property, but excluding any amendment or modification to the Development Regulations adopted, approved, or imposed after the Agreement Date that impairs or restricts 9wnei:PfODerty Owner's rights set forth in this Agreement, unless such amendment or mollification is expressly authorized by this Agreement or is agreed to by Property 9waeFOwner in writing: the General Plan; the Development Plan; and, to the extent not expressly superseded by the Development Plan or this Agreement, all other land use and subdivision regulations governing the permitted uses, density and intensity of use, design, improvement, and construction standards and specifications, procedures for obtaining required City permits and approvals for development, and similar matters that may apply to development of the Project on the Property during the Term of this Agreement that are set forth in Title 15 of the Municipal Code (buildings and construction), Title 19 of the Municipal Code (subdivisions), and Title 20 of the Municipal Code (planning and zoning), but specifically excluding all other sections of the Municipal Code, including without limitation Title 5 of the Municipal Code (business licenses and regulations). Notwithstanding the foregoing, the term `Development Regulations," as used herein, does not include any City ordinance, resolution, code, rule, regulation or official policy governing any of the following: (i) the conduct of businesses, professions, and occupations; (ii) taxes and assessments; (iii) the control and abatement. of nuisances; (iv) the granting of encroachment permits and the conveyance of rights and interests which provide for the use of or the entry upon public property; or (v) the exercise of the power of eminent domain. "Effective Dale" shall mean the latest of the following dates, as applicable: (i) the date that is thirty (30) days after the Agreement Date; (ii) if a referendum concerning the Adopting Ordinance or any of the Development Regulations approved on or before the Agreement Date is timely qualified for the ballot and a referendum election is held concerning die Adopting Ordinance or any of such Development Regulations, the date on which the referendum is certified resulting in upholding and approving the Adopting Ordinance and such Development Regulations and becomes effective, if applicable; (iii) ifa lawsuit is timely filed challenging the validity or legality of the Adopting Ordinance, this Agreement, and /or any of the Development Regulations approved on or before the Agreement Date, the date on which said challenge is finally resolved in favor of the validity or legality of die Adopting Ordinance, this Agreement, and/or the applicable Development Regulations, whether such finality is achieved by a final non - appealablejudgment, voluntary or involuntary dismissal (and the passage of any time required to appeal an involuntary dismissal), . or binding written settlement agreement; or (iv) the date of approval of a coastal development permit for the Project; (v) the date of or if a lawsuit is timely filed challenging the validity or legality of the approval of a coastal development permit for the Project, the date on which said challenge is finally resolved in favor of the validity or legality of the coastal development permit for the Project, whether such finality is achieved by a final non - appealable judgment, voluntary or involuntary dismissal (and the passage of any time required to appeal an involuntary dismissal), or binding written settlement agreement. Notwithstanding the foregoing, the Effective Date shall be no later than one hundred eighty (180) days from the Agreement Date. Promptly after the Effective Date occurs, the Parties agree to cooperate in causing an appropriate instrument to be executed and recorded against the Property memorializing the Effective Date. "Environmental Laws" means all federal, state, regional, county, municipal, and local laws, statutes, ordinances, rules, and regulations which are in effect as of the Agreement Date, A ia►amt ,a W.M. a FINAI. • i and all federal, state, regional, county, municipal, and local laws, statutes, rules, ordinances, rules, and regulations which may hereafter be enacted and which apply to the Property or any part thereof, pertaining to the use, generation, storage, disposal, release, treatment, or removal of any Hazardous Substances, including without limitation the following: the Comprehensive Environmental Response Compensation and Liability Act of 1980, 42 U.S.C. Sections 9601, Lt M., as amended ( "CERCLA "); the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976, 42 U.S.C. Sections 6901, et seq., as amended ("RJR 1'); the Emergency Planning and Community Right to Know Act of 1986, 42 U.S.C. Sections 11001 et sea., as amended; the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et sec., as amended; the Clean Air Act, 42 U.S.C. Sections 7401 et sea., as amended; the Clean Water Act, 33 U.S.C. Section 1251, et M., as amended; the Toxic Substances Control Act, 15 U.S.C. Sections 2601 et seg., as amended; the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. Sections 136 et seg., as amended; the Federal Safe Drinking Water Act, 42 U.S.C. Sections 300f et sea., as amended; the Federal Radon and Indoor Air Quality Research Act, 42 U.S.C. Sections 7401 et sea., as amended; the Occupational Safety and Health Act, 29 U.S.C. Sections 651 et sea., as amended; and California Health and Safety Code Section 25100, et seq. "General Plan" shall mean City's 2006 General Plan adopted by the City Council on July 25, 2006, by Resolution No. 2006 -76, as amended through the Agreement Date but excluding any amendment after the Agreement Date that impairs or restricts OwfwEmpgrty Owner's rights set forth in this Agreement, unless such amendment is expressly authorized by this Agreement, is authorized by Sections 8 or 9, or is specifically agreed to by OweerPmpgry Owner. The Land Use Plan of the Land Use Element of the General Plan was approved by City voters in a general election on November 7, 2006. "Hazardous Substances" means any toxic substance or waste, pollutant, hazardous substance or waste, contaminant, special waste, industrial substance or waste, petroleum or petroleum- derived substance or waste, or any toxic or hazardous constituent or additive to or breakdown component from any such substance or waste, including without limitation any substance, waste, or material regulated under or defined as "hazardous" or "toxic" under any Environmental Law. "Morteaee' shall mean a mortgage, deed of trust, sale and leaseback arrangement, or any other form of conveyance in which the Property, or a part or interest in the Property, is pledged as security and contracted for in good faith and for fair value. " Morteagee" shall mean the holder of a beneficial interest under a Mortgage or any successor or assignee of the Mortgagee. "Notice of Default" shall have the meaning ascribed in Section 8.1 of this Agreement. `Tartu" or "Parties' shall mean either City or HwuerProoerty Owner or both, as determined by the context. AI0 (XM3 W 01061 It ANAL 9-7 "Project„ shall mean all on -site and off -site improvements that 9w wProoerty Owner is authorized and/or may be required to construct with respect to each parcel of the Property, as provided in this Agreement and the Development Regulations, as the same may be modified or amended from time to time consistent with this Agreement and applicable law. "Property" is described in Exhibit A and generally depicted on Exhibit B as The Tennis Club. The Villas, and The Bungalows Sub -Areas shown on Exhibit B.. "Property AwneFOwner' shall mean Golf Realty Fund. a California limited nartnership and any successor or assignee, including lessees, 0 111 ur any n=In of the right. title, and interest pf Golf Realty Fund in and o ownership ^&ftrj:'` "`W pf all or a poop of the Pmnerty. "Public Benefit Fee" shall have the meaning ascribed in Section 3.1 of this Agreement. "Subsequent Development Approvals" shall mean all discretionary development and building approvals that (w.oeFProperty Owner is permitted rehired -to obtain to Develop the Project on and with respect to the Property after the Agreement Date consistent with the Development Regulations. "Term" shall have the meaning ascribed in Section 2.4 of this Agreement. 'Termination Date' and "Lot Termination Date" shall have the meaning ascribed in Section 2.4 of this Agreement. 'Transfer' shall have the meaning ascribed in Section 11 of this Agreement. 2. General Provisions. 2.1 Plan Consistency- Zoning Implementation. This Agreement and the Development Regulations applicable to the Property are consistent with the General Plan. 2.2 Binding Effect of Agreement. The Property is hereby made subject to this Agreement. Development of the Property is hereby authorized and shall be carried out in accordance with the terms of this Agreement. 2.3 AwneFProoerty Owner Representations and Warranties Regarding 8wvteF Ownership of the Property and Related Matters Pertaining to this Agreement. Owp"EMoerty Owner and each person executing this Agreement on behalf of twweWroperty Owner hereby represents and warrants to City as follows: (i) AwnefaQMM Owner or any co -owner owner comprising Ownt-Wrooerty Owner is a legal entity and that such entity is duly formed and existing and is authorized to do business in the State of California; (ii) if QmfrffProperty Owner or any co -owner owner- comprising GwweFProoerty Owner is a natural AIRMM 001.06.11 HNAI. Formatted: Default Paragraph Font. Font color: Auto Formatted: Body Tent, Left EL. person that such natural person has the legal right and capacity to execute this Agreement; (iii) that all actions required to be taken by all persons and entities comprising OwReWrOnerty Owner to enter into this Agreement have been taken and that AwxerProcerty Owner has the legal authority to enter into this Agreement; (iv) that to the best of 9wfwE[2 ertv Owner's knowledge, Owff"Property Owner's entering into and performing its obligations set forth in this Agreement will not result in a violation of any obligation, contractual or otherwise, that F3wneeProoertv Owner or any person or entity comprising Q,~Property Owner has to any third party; (v) that neither AwmrPrgper[y Owner nor any co -owner ewfw comprising QwaerPr22Lrtv Owner is the subject of any voluntary or involuntary petition in bankruptcy; and (vi) that to the best of 0%aerProperty Owner's knowledge, 9wnefProperty Owner has the authority and ability to enter into or perform any of its obligations set forth in this Agreement. 2.4 Term. The term of this Agreement (the "Term ") shall commence on the Effective Date and shall terminate on the `Termination Date." Fc tted: No undetlire Notwithstanding any other provision set forth in this Agreement to the contrary, if either Party reasonably determines that the Effective Date of this Agreement will not occur because (i) the Adopting Ordinance or any of the Development Regulations approved on or before the Agreement Date for the Project has/have been disapproved by City's voters at a referendum election or (ii) a final non - appealable judgment is entered in a judicial action challenging the validity or legality of the Adopting Ordinance, this Agreement, a coastal development permit for the Project and/or any of the Development Regulations for the Project approved on or before the Agreement Date such that this Agreement and/or any of such Development Regulations is/are invalid and unenforceable in whole or in such a substantial part that the judgment substantially impairs such Parry's rights or substantially increases its obligations or risks hereunder or thereunder, then such Party shall have the right to terminate this Agreement upon delivery of a written notice of termination to the other Party, in which event neither Party shall have any further rights or obligations hereunder except that 0wFwProoerty Owner's indemnity obligations set forth in Article 10 shall remain in full force and effect and shall be enforceable, and the Development Regulations applicable to the Project and the Property only (but not those general Development Regulations applicable to other properties in the City) shall similarly be null and void at such time. The Termination Date shall be the earliest of the following dates: (i) the tenth (10 =th) anniversary of the Effective Date, as said date may be extended in accordance with Section 5 of this Agreement; (ii) such earlier date that this Agreement may be terminated in accordance with Articles 5, 7, and/or Section 8.3 of this Agreement and/or Sections 65865.1 and/or 65868 of the Development Agreement Statute; (iii) as to any separate legal lot within the Property (but not as to the balance of the Property or the portion thereof that remains subject to this Agreement at such time), upon the "Lot Termination Date" (defined below); or (iv) completion of the Project in accordance with the terms of this Agreement, including BwfwRrnneny Owner's complete satisfaction, performance, and payment, as applicable, of all Development Exactions, the issuance of all required final occupancy permits, and acceptance by City or applicable public agency(ies) or private entity(ies) of all required offers of dedication. A fflg771 WQIIMMPINA qq As used herein, the term "Lot Termination Date' for any separate legal lot within the f Formatted: no underane Property means the date on which all of the following conditions have been satisfied with respect to said lot: (i) the lot has been finally subdivided and sold or leased (for a period longer than one year), individually or in a "bulk" of four or fewer lots, to a member of the public or other ultimate user; (ii) a final Certificate of Occupancy or "Release of Utilities" has been issued for the building or buildings approved for construction on said lot. Notwithstanding any other provision set forth in this Agreement to the contrary, the provisions set forth in Article 10 and Section 13.10 (as well as any other 0wa0FPmDegy Owner obligations set forth in this Agreement that are expressly written to survive the Termination Date) shall survive the Termination Date of this Agreement. 3. Public Benefits. 3.1 Public Benefit Fee. As consideration for City's approval and performance of its obligations set forth in this Agreement, OwaffProperty Owner shall pay to City a fee that shall be in addition to any other fee or charge to which the Property and the Project would otherwise be subject (herein, the ")?ublic Benefit Fee ") in the sum of (i) Ninety -three thousand Dollars ($ Formatted: No underline 93,000Fper each residential dwelling units; and (ii) Ten dollars ($10) per square foot of construction for the proposed golf clubhouse; and (iii) Ten dollars ($10) per square foot of xew-construction to the or000sed ertistixg- tennis clubhouse, with the unpaid balance of said Public Benefit Fee increased on the first January 1 following the Effective Date of this Agreement by the percentage increase in the CPI Index between the Effective Date and said January I" date (the first "Adjustment Date ") and thereafter with the unpaid balance of said Public Benefit Fee increased on each subsequent January I during the Term of this Agreement (each, an "Adjustment Date ") by the percentage increase in the CPI Index in the year prior to the applicable Adjustment Date. The amount of the percentage increase in the CPI Index on the applicable Adjustment Dates shall in each instance be calculated based on the then most recently available CPI Index figures such that, for example, if the Effective Date of this Agreement falls on July I and the most recently available CPI Index figure on the first Adjustment Date (January 1 of the following year) is the CPI Index for November of the preceding year, the percentage increase in the CPI Index for that partial year (a 6 -month period) shall be calculated by comparing the CPI Index for November of the preceding year with the CPI Index for May of the preceding year (a 6 -month period). In no event, however, shall application of the CPI Index reduce the amount of the Public Benefit Fee (or unpaid portion thereof) below the amount in effect prior to any applicable Adjustment Date. Ovm"Prop rty Owner shall pay the Public Benefit Fee at the following time(s): (i) As to the residential dwelling units, at the issuance of the building permit for each individual residential unit; and (ii) as to the golf clubhouse and tennis clubhouse construction, at the time each building permit is issued to AwnffProperty Owner or on 14Jhe City has entered into a separate Development Agreement with The Newport Beach Country Club, Inc.. Development Asrecment No. (the "NBCC DA's, pertaining to the development of a golf clubhouse on the adjacent iProperty_ (this requirement to pay a Public Benefit Fee for the construction of the golf clubhouse shall not apply to 9wn Ecgiierty Owner, unless Ow Ptit2em Owner itself, grits successors or assignees, is seeking issuance of permits for the construction of a thrgolf clubhouse on the adiacent propene. AMM`?Y W OLA A RN V. OwnefProperty Owner's behalf. Notwithstanding any other provision set forth in this Agreement to the contrary, during the Term of this Agreement City shall not increase the Public Benefit Fee except pursuant to the CPI Index as stated in this Section 3.1. The Public Fee Benefit Fee shall be calculated based on the total square feet of construction for the proposed golf clubhouse and groposed tennis clubhouse Oweeff roperty Owner shall not be entitled to any credit or offset to the Public Benefit Fee for any existing buildings or structures. OwnefPropertv Owner acknowledges by its approval and execution of this Agreement that it is voluntarily agreeing to pay the Public Benefit Fee, that its obligation to pay the Public Benefit Fee is an essential term of this Agreement and is not severable from City's obligations and OwnefProcerty Owner's vesting rights to be acquired hereunder, and that GwNefPrg2erty Owner expressly waives any constitutional, statutory, or common law right it might have in the absence of this Agreement to protest or challenge the payment of such fee on any ground whatsoever, including without limitation pursuant to the Fifth and Fourteenth Amendments to the United States Constitution, California Constitution Article I Section 19, the Mitigation Fee Act (California Government Code Section 66000 et seg.), or otherwise. In addition to any other remedy set forth in this Agreement for AwttefPfODertv Owner's default, if AwwefProoerty Owner shall fail to timely pay any portion of the Public Benefit Fee when due City shall have the right to withhold issuance of any further building permits, occupancy permits, or other development or building permits for the Project. 3.2 Other Public Benefits. The development of the Project will include the addition of Visitor- Serving Uses consistent with the City's Coastal Land Use Plan and will provide a unique amenity for those visitors whose interests include tennis. It is anticipated that the Property will continue to host numerous events of significant social and economic benefit to the City, its citizens, businesses and charitable institutions. 4. Development of Project. 4.1 Applicable Regulations: AwneWropertv Owner's Vested Rights and City's Reservation of Discretion With Respect to Subsequent Development Approvals Other than as expressly set forth in this Agreement, during the Term of this Agreement, (i) 9wn Property Owner shall have the vested right to Develop the Project on and with respect to the Property in accordance with the terms of the Development Regulations and this Agreement and (ii) City shall not prohibit or prevent development of the Property on grounds inconsistent with the Development Regulations or this Agreement. Notwithstanding the foregoing, nothing herein is intended to limit or restrict City's discretion with respect to (i) review and approval requirements contained in the Development Regulations, (ii) exercise of any discretionary authority City retains under the Development Regulations, (iii) the approval, conditional approval, or denial of any Subsequent Development Approvals applied for by GwaefPro ert Owner, or that are required, for Development of the Project as of the Agreement Date provided that all such actions are consistent with the Development Regulations, or (iv) any environmental approvals that may be required under CFQA or any other federal or state law or regulation in conjunction with any Subsequent Development Approvals that may be required for the Project, and in this regard, as to future actions referred to in clauses (i) -(iv) of this sentence, City reserves its full discretion to the same extent City would have such discretion in the absence of this Ala 773 .40i.M11 Fora 10 Comment "N TO fN 1:1M TO INSERT DA 0 POR NBCC AGRafiMPNT H Agreement. In addition, it is understood and agreed that nothing in this Agreement is intended to vest GwfwProcertv Owner's rights with respect to any laws, regulations, rules, or official policies of any other governmental agency or public utility company with jurisdiction over the Property or the Project; or any applicable federal or state laws, regulations, rules, or official policies that may be inconsistent with this Agreement and that override or supersede the provisions set forth in this Agreement, and regardless of whether such overriding or superseding laws, regulations, rules, or official policies are adopted or applied to the Property or the Project prior or subsequent to the Agreement Date. AwnerProperty Owner has expended and will continue to expend substantial amounts of time and money in the planning and entitlement process end preryer+ng-14)r —to permit Development of the Project in the future. AwnerProperty Owner represents and City acknowledges that HwwProce t Owner would not make these expenditures without this Agreement, and that QwneFProperty Owner is and will be making these expenditures in reasonable reliance upon obtaining its vested rights to Develop the Project as set forth in this Agreement. AwweFProperty Owner may apply to City for permits or approvals necessary to modify or amend the Development specified in the Development Regulations, provided that unless this Agreement also is amended, the request does not propose an increase in the maximum density, intensity, height, or size of proposed structures, or a change in use that generates more peak hour traffic or more daily traffic. In addition, OwnerProperty Owner may apply to City for approval of minor amendments to existing tentative tract maps, tentative parcel maps, or associated conditions of approval, consistent with City of Newport Beach Municipal Code section 19.12.090. This Agreement does not constitute a promise or commitment by City to approve any such permit or approval, or to approve the same with or without any particular requirements or conditions, and City's discretion with respect to such matters shall be the same as it would be in the absence of this Agreement. 4.2 No Conflicting Enactments. Except to the extent City reserves its discretion as expressly set forth in this Agreement, during the Term of this Agreement City shall not apply to the Project or the Property any ordinance, policy, rule, regulation, or other measure relating to Development of the Project that is enacted or becomes effective after the Agreement Date to the extent it conflicts with this Agreement. This Section 4.2 shall not restrict City's ability to enact an ordinance, policy, rule, regulation, or other measure applicable to the Project pursuant to California Government Code Section 65866 consistent with the procedures specified in Section 4.3 of this Agreement. In Pardee Construction Co. v. Ciy of Camarillo (1984) 37 Cal.3d 465, the California Supreme Court held that a construction company was not exempt from a city's growth control ordinance even though the city and construction company had entered into a consent judgment (tantamount to a contract under California law) establishing the company's vested rights to develop its property consistent with the zoning. The California Supreme Court reached this result because the consent judgment failed to address the timing of development. The Parties intend to avoid the result of the Pardee case by acknowledging and providing in this Agreement that 9wneFProoertv Owner shall have the vested right to Develop the Project on and with respect to the Property at the rate, timing, and sequencing that G3#w Pro rtv Owner deems appropriate within the exercise of Owr* Property Owner's sole subjective business judgment, provided that AI0J 3 "01.M.1 I HNA 11 I such Development occurs in accordance with this Agreement and the Development Regulations, notwithstanding adoption by City's electorate of an initiative to the contrary after the Agreement Date. No City moratorium or other similar limitation relating to the rate, timing, or sequencing of the Development of all or any part of the Project and whether enacted by initiative or another method, affecting subdivision maps, building permits, occupancy certificates, or other entitlement to use, shall apply to the Project to the extent such moratorium or other similar limitation restricts Awaer ro env Ownei s vested rights in this Agreement or otherwise conflicts with the express provisions of this Agreement. 4.3 Reservations of Authority. Notwithstanding any other provision set forth in this Agreement to the contrary, the laws, rules, regulations, and official policies set forth in this Section 4.3 shall apply to and govern the Development of the Project on and with respect to the Property. 4.3.1 Procedural Regulations. Procedural regulations relating to hearing bodies, petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals, and any other matter of procedure shall apply to the Property, provided that such procedural regulations are adopted and applied City -wide or to all other properties similarly situated in City. 4.3.2 Processing and Permit Fees. City shall have the right to charge and AwnetProperty Owner shall be required to pay all applicable processing and permit fees to cover the reasonable cost to City of processing and reviewing applications and plans for any required Subsequent Development Approvals, building permits, excavation and grading permits, encroachment permits, and the like, for performing necessary studies and reports in connection therewith, inspecting the work constructed or installed by or on behalf of 9wneeProperty Owner, and monitoring compliance with any requirements applicable to Development of the Project, all at the rates in effect at the time fees are due. 4.3.3 Consistent Future City Regulations. City ordinances, resolutions, regulations, and official policies governing Development which do not conflict with the Development Regulations, or with respect to such regulations that do conflict, where 0%netProcerty Owner has consented in writing to the regulations, shall apply to the Property. 4.3.4 Development Exactions Applicable to Property. During the Term of this Agreement, OwfwProperty Owner shall be required to satisfy and pay all Development Exactions at the time performance or payment is due to the same extent and in the same amount(s) that would apply to 9wnerPr�rtv Owner and the Project in the absence of this Agreement; provided, however, that to the extent the scope and extent of a particular Development Exaction (excluding any development impact fee) for the Project has been established and fixed by City in the conditions of approval for any of the Development Regulations approved on or before the Agreement Date, City shall not alter, increase, or modify said Development Exaction in a manner that is inconsistent with such Development Regulations without OwwProperty Owner's prior written consent or as may be otherwise required pursuant to overriding federal or state laws or regulations (Section 4.3.5 hereinbelow). In addition, nothing in this Agreement is intended or shall be deemed to vest AwaeFProoerty Owner against the obligation to pay any of the following (which are not included within the definition of "Development Exactions ") in the full amount that would apply in the absence of this Agreement: AIo 3aorMI nNN 12 0 (i) City's normal fees for processing, environmental assessment and review, tentative tract and parcel map review, plan checking, site review and approval, administrative review, building permit, grading permit, inspection, and similar fees imposed to recover City's costs associated with processing, reviewing, and inspecting project applications, plans, and specifications; (ii) fees and charges levied by any other public agency, utility, district, or joint powers authority, regardless of whether City collects those fees and charges; or (iii) community facility district special taxes or special district assessments or similar assessments, business license fees, bonds or other security required for public improvements, transient occupancy taxes, sales taxes, property taxes, sewer lateral connection fees, water service connection fees, new water meter fees, and the Property Development Tax payable under Chapter 3.12 of City's Municipal Code. 4.3.5 Overridin¢ Federal and State Laws and Regulations. Federal and state laws and regulations that override QwnefProperty Owner's vested rights set forth in this Agreement shall apply to the Property, together with any City ordinances, resolutions, regulations, and official policies that are necessary to enable City to comply with the provisions of any such overriding federal or state laws and regulations, provided that (i) Ownefprocerty Owner does not waive its right to challenge or contest the validity of any such purportedly overriding federal, state, or City law or regulation; and (ii) upon the discovery of any such overriding federal, state, or City law or regulation that prevents or precludes compliance with any provision of this Agreement, City or HwneFPropertv Owner shall provide to the other Party a written notice identifying the federal, state, or City law or regulation, together with a copy of the law or regulation and a brief written statement of the conflict(s) between that law or regulation and the provisions of this Agreement. Promptly thereafter City and Qm% fProperty Owner shall meet and confer in good faith in a reasonable attempt to determine whether a modification or suspension of this Agreement, in whole or in part, is necessary to comply with such overriding federal, state, or City law or regulation. In such negotiations, City and OwnefProperty Owner agree to preserve the terms of this Agreement and the rights of GwaefProoerty Owner as derived from this Agreement to the maximum feasible extent while resolving the conflict. City agrees to cooperate with OwnefEmperty Owner at no cost to City in resolving the conflict in a manner which minimizes any financial impact of the conflict upon 9wnefProoerty Owner. City also agrees to process in a prompt manner OwnefProperty Owner's proposed changes to this Agreement, the Project and any of the Development Regulations as may be necessary to comply with such overriding federal, state, or City law or regulation; provided, however, that the approval of such changes by City shall be subject to the discretion of City, consistent with this Agreement. 4.3.6 Public Health and Safety. Any City ordinance, resolution, rule, regulation, program, or official policy that is necessary to protect persons on the Property or in the immediate vicinity from conditions dangerous to their health or safety, as reasonably determined by City, shall apply to the Property, even though the application of the ordinance, resolution, rule regulation, program, or official policy would result in the impairment of 9wnefProperty Owner's vested rights under this Agreement. 4.3.7 Uniform Building Standards. Existing and future building and building - related standards set forth in the uniform codes adopted and amended by City from time to time, including building, plumbing, mechanical, electrical, housing, swimming pool, and fire codes, and any modifications and amendments thereof shall all apply to the Project and the Property to the same extent that the same would apply in the absence of this Agreement. AID W773 W01.06 I I FINAL 13 0 4.3.8 Public Works Improvements. To the extent 9wvteFE[g2 v Owner constructs or installs any public improvements, works, or facilities, the City standards in effect for such public improvements, works, or facilities at the time of City's issuance of a permit, license, or other authorization for construction or installation of same shall apply. 4.3.9 No Guarantee or Reservation of Utility Capacity. Notwithstanding any other provision set forth in this Agreement to the contrary, nothing in this Agreement is intended or shall be interpreted to require City to guarantee or reserve to or for the benefit of 9wwefProcenv Owner or the Property any utility capacity, service, or facilities that may be needed to serve the Project, whether domestic or reclaimed water service, sanitary sewer transmission or wastewater treatment capacity, downstream drainage capacity, or otherwise, and City shall have the right to limit or restrict Development of the Project if and to the extent that City reasonably determines that inadequate utility capacity exists to adequately serve the Project at the time Development is scheduled to commence. 4.4 Tentative Subdivision Maps City agrees that 9wnefPLoperty Owner may file and process new and existing vesting tentative maps for the Property consistent with California Government Code sections 66498.1- 66498.9 and City of Newport Beach Municipal Code chapter 19.20. Pursuant to the applicable provision of the California Subdivision Map Act (California Government Code section 66452.6(a)), the life of any tentative subdivision map approved for the Property, whether designated a "vesting tentative map" or otherwise, shall be extended for the Term of this Agreement. 5. Amendment or Cancellation of Agreement. Other than modifications of this Agreement under Section 8.3 of this Agreement, this Agreement may be amended or canceled in whole or in part only by mutual written and executed consent of the Parties in compliance with California Government Code section 65868 and City of Newport Beach Municipal Code section 15.45.060 or by unilateral termination by City in the event of an uncured default of 0%noFProWnv Owner. 6. Enforcement. Unless this Agreement is amended, canceled, modified, or suspended as authorized herein or pursuant to California Government Code section 65869.5, this Agreement shall be enforceable by either Party despite any change in any applicable general or specific plan, zoning, subdivision, or building regulation or other applicable ordinance or regulation adopted by City (including by City's electorate) that purports to apply to any or all of the Property. 7. Annual Review of OwvtefProperty Owner's Compliance With Agreement. 7.1 General. City shall review this Agreement once during every twelve (12) month period following the Effective Date for compliance with the terms of this Agreement as provided in Government Code Section 65865.1. Qwa fPropeny Owner (including any successor to the ewnefProoenv Owner executing this Agreement on or before the Agreement Date) shall pay City a reasonable Am�nnn 0 01os.n rw,a. 14 Q� fee in an amount City may reasonably establish from time to time to cover the actual and necessary costs for the annual review. City's failure to timely provide or conduct an annual review shall not constitute a Default hereunder by City. 7.2 AwmrProvertv Owner Obligation to Demonstrate Good Faith Compliance. During each annual review by City, 9wm*Property Owner is required to demonstrate good faith compliance with the terms of the Agreement. AwneFPr pertv Owner agrees to furnish such evidence of good faith compliance as City, in the reasonable exercise of its discretion, may require, thirty (30) days prior to each anniversary of the Effective Date during the Term. 7.3 Procedure. The City Council of City shall conduct a duly noticed hearing and shall determine, on the basis of substantial evidence, whether or not AweefPropertv Owner has, for the period under review, complied with the terms of this Agreement. If the City Council finds that OweeFProperty Owner has so complied, the annual review shall be concluded. If the City Council finds, on the basis of substantial evidence, that OwnefPropeny Owner has not so complied, written notice shall be sent to OwfwProcerty Owner by first class mail of the City Council's finding of non - compliance, and AwwEgpo erty Owner shall be given at least ten (10) days to cure any noncompliance that relates to the payment of money and thirty (30) days to cure any other type of noncompliance. If a cure not relating to the payment of money cannot be completed within thirty (30) days for reasons which are beyond the control of OwttefProoerty Owner, OwwefProoerty Owner must commence the cure within such thirty (30) days and diligently pursue such cure to completion. If OwnefProoerty Owner fails to cure such noncompliance within the time(s) set forth above, such failure shall be considered to be a Default and City shall be entitled to exercise the remedies set forth in Article 8 below. 7.4 Annual Review a Non - Exclusive Means for Determining and Requiring Cure of 9wwefProoerty Owner's Default. The annual review procedures set forth in this Article 7 shall not be the exclusive means for City to identify a Default by Ow n"Prooerty Owner or limit City's rights or remedies for any such Default. 8. Events of Default. 8.1 General Provisions. In the event of any material default, breach, or violation of the terms of this Agreement ( "Default "), the Party alleging a Default shall have the right to deliver a written notice (each, a "Notice of Default ") to the defaulting Party. The Notice of Default shall specify the nature of the alleged Default and a reasonable manner and sufficient period of time (ten (10) days if the Default relates to the failure to timely make a monetary payment due hereunder and not less than thirty (30) days in the event of non - monetary Defaults) in which the Default must be cured (the "Cure Period'). During the Cure Period, the Party charged shall not be considered in Default for the purposes of termination of this Agreement or institution of legal proceedings. If the alleged Default is cured within the Cure Period, then the Default thereafter shall be deemed not to exist. If a non - monetary Default cannot be cured during the Cure Period with the exercise of AK6 773 W 01.06.11 FINAL 15 G(" commercially reasonable diligence, the defaulting Party must promptly commence to cure as quickly as possible, and in no event later than thirty (30) days after it receives the Notice of Default, and thereafter diligently pursue said cure to completion. 8.2 Default by Own"Prooerty Owner. If AweefProperty Owner is alleged to have committed a non - monetary Default and it disputes the claimed Default, it may make a written request for an appeal hearing before the City Council within ten (10) days of receiving the Notice of Default, and a public hearing shall be scheduled at the next available City Council meeting to consider Own fProoertv Owner's appeal of the Notice of Default. Failure to appeal a Notice of Default to the City Council within the ten (10) day period shall waive any right to a hearing on the claimed Default. If Aw"Pronerty Owner's appeal of the Notice of Default is timely and in good faith but after a public hearing of OwnefPmt)erty Owner's appeal the City Council concludes that 9wnefProoertv Owner is in Default as alleged in the Notice of Default, the accrual date for commencement of the thirty (30) day Cure Period provided in Section 8.1 shall be extended until the City Council's denial of OwwneF— rooerty Owner's appeal is communicated to AwmfProcerty Owner. 8.3 City's Option to Terminate Agreement. In the event of an alleged OwwwefProperty Owner Default, City may not terminate this Agreement without first delivering a written Notice of Default and providing 9wwefPrm rt Owner with the opportunity to cure the Default within the Cure Period, as provided in Section 8.1, and complying with Section 8.2 if OwnefEroXertV Owner timely appeals any Notice of Default with respect to a non - monetary Default. A termination of this Agreement by City shall be valid only if good cause exists and is supported by evidence presented to the City Council at or in connection with a duly noticed public hearing to establish the existence of a Default. The validity of any termination may be judicially challenged by 0-%a Prgperty Owner. Any such judicial challenge must be brought within thirty (30) days of service on 0wa fProperty Owner, by first class mail, postage prepaid, of written notice of termination by City or a written notice of City's determination of an appeal of the Notice of Default as provided in Section 8.2. It is the intention of the Parties that, while the City Council may declare a default and initiate termination of this Agreement on the basis of substantial evidence in the administrative record, if the declaration of default is contested in court, the court will review the default claim de novo and base its decision on whether the preponderance of evidence supports the City Council's finding of breach. 8.4 Default by City, If OwnefFmperty Owner alleges a City Default and alleges that the City has not cured the Default within the Cure Period, GwaufProoerty Owner may pursue any equitable remedy available to it under this Agreement, including, without limitation, an action for a writ of mandamus, injunctive relief, or specific performance of City's obligations set forth in this Agreement. Upon a City Default, any resulting delays in OwaefPropertv Owner's performance hereunder shall neither be a C ww EmptL Owner Default nor constitute grounds for termination or cancellation of this Agreement by City and shall, at OwxefProperty Owner's option (and provided OwttefPropertv Owner delivers written notice to City within thirty (30) A10 U"73 W 0106.11 FINAL 16 &Z days of the commencement of the alleged City Default), extend the Term for a period equal to the length of the delay. 8.5 Waiver. Failure or delay by either Party in delivering a Notice of Default shall not waive that Party's right to deliver a future Notice of Default of the same or any other Default. 8.6 Soecific Performance Remedy. Due to the size, nature, and scope of the Project, it will not be practical or possible to restore the Property to its pre- existing condition once implementation of this Agreement has begun. After such implementation, both GwnerProoertv Owner and City may be foreclosed from other choices they may have had to plan for the development of the Property, to utilize the Property or provide for other benefits and alternatives. QwnerPro rtv Owner and City have invested significant time and resources and performed extensive planning and processing of the Project in agreeing to the terms of this Agreement and will be investing even more significant time and resources in implementing the Project in reliance upon the terms of this Agreement. It is not possible to determine the sum of money which would adequately compensate OwneFProoerty Owner or City for such efforts. For the above reasons, City and OwweeProperty Owner agree that damages would not be an adequate remedy if either City or GwrterPrtmertv Owner fails to carry out its obligations under this Agreement. Therefore, specific performance of this Agreement is necessary to compensate BiwteFProperty Owner if City fails to carry out its obligations under this Agreement or to compensate City if 9wnffPr�erty Owner falls to cant' out its obligations under this Agreement. 8.7 Monetary Damages. The Parties agree that monetary damages shall not be an available remedy for either Party for a Default hereunder by the other Party; provided, however, that (i) nothing in this Section 8.7 is intended or shall be interpreted to limit or restrict City's right to recover the Public Benefit Fees due from 9wneFProperty Owner as set forth herein; and (ii) nothing in this Section 8.7 is intended or shall be interpreted to limit or restrict GwneWrooe t Owner's indemnity obligations set forth in Article 10 or the right of the prevailing Party in any Action to recover its litigation expenses, as set forth in Section 8.10. 8.8 Additional City Remedy for OwfwProoerty Owner's Default. In the event of any Default by 9wFwWr0 rtv Owner, in addition to any other remedies which may be available to City, whether legal or equitable, City shall be entitled to receive and retain any Development Exactions applicable to the Project or the Property, including any fees, grants, dedications, or improvements to public property which it may have received prior to 0,AnerProperty Owner's Default without recourse from Qwmf roprty Owner or its successors or assigns. 8.9 No Personal Liability of City Officials. Employees, or Agents. No City official, employee, or agent shall have any personal liability hereunder for a Default by City of any of its obligations set forth in this Agreement. %IOM iwo1.ia.n Flea. 17 q q 8.10 Recovery of Legal Expenses by Prevailing Party in Any Action. In any judicial proceeding, arbitration, or mediation (collectively, an "Action') between the Parties that seeks to enforce the provisions of this Agreement or arises out of this Agreement, the prevailing Party shall recover all of its actual and reasonable costs and expenses, regardless of whether they would be recoverable under California Code of Civil Procedure section 1033.5 or California Civil Code section 1717 in the absence of this Agreement. These costs and expenses include expert witness fees, attorneys' fees, and costs of investigation and preparation before initiation of the Action. The right to recover these costs and expenses shall accrue upon initiation of the Action, regardless of whether the Action is prosecuted to a final judgment or decision. 9. Force Maieure Neither Party shall be deemed to be in Default where failure or delay in performance of any of its obligations under this Agreement is caused, through no fault of the Party whose performance is prevented or delayed, by floods, earthquakes, other acts of God, fires, wars, riots or similar hostilities, strikes or other labor difficulties, state or federal regulations, or court actions. Except as specified above, nonperformance shall not be excused because of the act or omission of a third person. In no event shall the occurrence of an event of force majeure operate to extend the Term of this Agreement. In addition, in no event shall the time for performance of a monetary obligation, including without limitation Owneff`m2crty Owner's obligation to pay Public Benefit Fees, be extended pursuant to this Section. 10. Indemnity Obligations of OvawProyertv Owner. 10.1 Indemnity Arising From Acts or Omissions of QwoerProyerty Owner. AwaeePro my Owner shall indemnify, defend, and hold harmless City and City's officials, employees, agents, attorneys, and contractors (collectively, the "City's Affiliated Parties') from and against all suits, claims, liabilities, losses, damages, penalties, obligations, and expenses (including but not limited to attorneys' fees and costs) (collectively, a "Claim ") that may arise, directly or indirectly, from the acts, omissions, or operations of OwaerPropeny Owner or Gv.4wProptny Owner's agents, contractors, subcontractors, agents, or employees in the course of Development of the Project or any other activities of OwnerPropertv Owner relating to the Property or pursuant to this Agreement. City shall have the right to select and retain counsel to defend any Claim filed against City and/or any of City's Affiliated Parties, and Owner Property Owner shall pay the reasonable cost for defense of any Claim. The indemnity provisions in this Section 10.1 shall commence on the Agreement Date, regardless of whether the Effective Date occurs, and shall survive the Termination Date. 10.2 Third Party Litigation. In addition to its indemnity obligations set forth in Section 10. 1, 9AVaeePrcRLrty Owner shall indemnify, defend, and hold harmless City and City's Affiliated Parties from and against any Claim against City or City's Affiliated Parties seeking to attack, set aside, void, or annul the approval of this Agreement, the Adopting Ordinance, any of the Development Regulations for the Project (including without limitation any actions taken pursuant to CEQA with respect thereto), any Subsequent Development Approval, or the approval of any permit granted pursuant A10Mn 1401 WAI aria. 18 q to this Agreement. Said indemnity obligation shall include payment of attorney's fees, expert witness fees, and court costs. City shall promptly notify 0wnerPrnoerty Owner of any such Claim and City shall cooperate with AwnnFPro x-.rt Owner in the defense of such Claim. If City fails to promptly notify AwvrofProperty Owner of such Claim, HwnefProoerty Owner shall not be responsible to indemnify, defend, and hold City harmless from such Claim until OwxefProperty Owner is so notified and if City fails to cooperate in the defense of a Claim 0waefPr�rty Owner shall not be responsible to defend, indemnify, and hold harmless City during the period that City so fails to cooperate or for any losses attributable thereto. City shall be entitled to retain separate counsel to represent City against the Claim and the City's defense costs for its separate counsel shall be included in 9w n fPrrty Owner's indemnity obligation, provided that such counsel shall reasonably cooperate with Hw*"Rmocrtv Owner in an effort to minimize the total litigation expenses incurred by AwnefProperty Owner. In the event either City or OwaefPrOnerty Owner recovers any attorney's fees, expert witness fees, costs, interest, or other amounts from the party or parties asserting the Claim, OwwefProoert y Owner shall be entitled to retain the same (provided it has fully performed its indemnity obligations hereunder). The indemnity provisions in this Section 10.2 shall commence on the Agreement Date, regardless of whether the Effective Date occurs, and shall survive the Termination Date. 10.3 Environmental Indemnity. In addition to its indemnity obligations set forth in Section 10.1, from and after the Agreement Date 9wmffProperty Owner shall indemnify, defend, and hold harmless City and City's Affiliated Parties from and against any and all Claims for personal injury or death, property damage, economic loss, statutory penalties or fines, and damages of any kind or nature whatsoever, including without limitation attorney's fees, expert witness fees, and costs, based upon or arising from any of the following: (i) the actual or alleged presence of any Hazardous Substance on or under any of the Property in violation of any applicable Environmental Law; (ii) the actual or alleged migration of any Hazardous Substance from the Property through the soils or groundwater to a location or locations off of the Property; and (iii) the storage, handling, transport, or disposal of any Hazardous Substance on, to, or from the Property and any other area disturbed, graded, or developed by HwwefRmperty Owner in connection with Awn"Property Owner's Development of the Project. The foregoing indemnity obligations shall not apply to any Hazardous Substance placed or stored on a separate legal lot within the Property after the Lot Termination Date for said lot, as provided in Section 2.4 of this Agreement. The indemnity provisions in this Section 10.3 shall commence on the Agreement Date, regardless of whether the Effective Date occurs, and shall survive the Termination Date. 11. Assi.ne ment. 9wa Bnaerty Owner shall have the right to sell, transfer, or assign (hereinafter, collectively, a "Transfer ") OvmwEr�rty Owner's fee interest in to the Property, in whole or in part, to any person, partnership, joint venture, firm, or corporation (which successor, as of the effective date of the Transfer, shall become the " OwnefPro2rty Owner' under this Agreement) at any time from the Agreement Date until the Termination Date; provided, however, that no such Transfer shall violate the provisions of the Subdivision Map Act (Government Code Section 66410 et sea.) or City's local subdivision ordinance and any such Transfer shall include the assignment and assumption of AwnefPronerty Owner's rights, duties, and obligations set forth in or arising under this Agreement as to the Property or the portion thereof so Transferred AI0-0 3 W 01 M,11 FlNA 19 too and shall be made in strict compliance with the following conditions precedent: (i) no transfer or assignment of any of AwoeFEMpmv Owner's rights or interest under this Agreement shall be made unless made together with the Transfer of all or a part of the Property; and (ii) prior to the effective date of any proposed Transfer, AwneFProperty Owner (as transferor) shall notify City, in writing, of such proposed Transfer and deliver to City a written assignment and assumption, executed in recordable form by the transferring and successor GwfwEEgperty Owner and in a form subject to the reasonable approval of the City Attorney of City (or designee), pursuant to which the transferring OwneFProperty Owner assigns to the successor 0wfwFProperty Owner and the successor OwneFProperty Owner assumes from the transferring OwneFProcertv Owner all of the rights and obligations of the transferring AwneFProoerty Owner with respect to the Property or portion thereof to be so Transferred, including in the case of a partial Transfer the obligation to perform such obligations that must be performed off of the portion of the Property so Transferred that are a condition precedent to the successor GwneiProV rtY Owner's right to develop the portion of the Property so Transferred. Notwithstanding any Transfer, the transferring Awft"Procerty Owner shall continue to be jointly and severally liable to City, together with the successor 9wneFProoertv Owner, to perform all of the transferred obligations set forth in or arising under this Agreement unless the transferring Q%%"Prooerty Owner is given a release in writing by City, which release shall be only with respect to the portion of the Property so Transferred in the event of a partial Transfer. City shall provide such a release upon the transferring AiwteFProperty Owner's full satisfaction of all of the following conditions: (i) the transferring OwmwProoerty Owner no longer has a legal or equitable interest in the portion of the Property so Transferred other than as a beneficiary under a deed of trust; (ii) the transferring Owp,"Property Owner is not then in Default under this Agreement and no condition exists that with the passage of time or the giving of notice, or both, would constitute a Default hereunder; (iii) the transferring OwneFPropertv Owner has provided City with the notice and the fully executed written and recordable assignment and assumption agreement required as set forth in the first paragraph of this Section 11; and (iv) the successor 0%w" mpl'rtV Owner either (A) provides City with substitute security equivalent to any security previously provided by the transferring AwneFPrope Owner to City to secure performance of the successor AwneFPropertv Owner's obligations hereunder with respect to the Property or the portion of the Property so Transferred or (B) if the transferred obligation in question is not a secured obligation, the successor OwneFPro oerty Owner either provides security reasonably satisfactory to City or otherwise demonstrates to City's reasonable satisfaction that the successor OwfwProperty Owner has the financial resources or commitments available to perform the transferred obligation at the time and in the manner required under this Agreement and the Development Regulations for the Project. 12. Morteaeee Riehts. 12.1 Encumbrances on Property. The Parties agree that this Agreement shall not prevent or limit GwnffEEuRggv LOwner in any manner from encumbering the Property, any part of the Property, or any improvements on the Property with any Mortgage securing financing with respect to the construction, development, use, or operation of the Project. 12.2 Morteaeee Protection. A106 73 ,401NAiHNA 20 (ID ' This Agreement shall be superior and senior to the lien of any Mortgage. Nevertheless, no breach of this Agreement shall defeat, render invalid, diminish, or impair the lien of any Mortgage made in good faith and for value. Any acquisition or acceptance of title or any right or interest in the Property or part of the Property by a Mortgagee (whether due to foreclosure, trustee's sale, deed in lieu of foreclosure, lease termination, or otherwise) shall be subject to all of the terms and conditions of this Agreement. Any Mortgagee who takes title to the Property or any part of the Property shall be entitled to the benefits arising under this Agreement. 12.3 Mortgagee Not Obligated. Notwithstanding the provisions of this Section 12.3, a Mortgagee will not have any obligation or duty under the terms of this Agreement to perform the obligations of QwaffEcQRQgy Owner or other affirmative covenants of owaerPropery Owner or to guarantee this performance except that: (i) the Mortgagee shall have no right to develop the Project under the Development Regulations without fully complying with the terms of this Agreement; and (ii) to the extent that any covenant to be performed by owfwEmMgy Owner is a condition to the performance of a covenant by City, that performance shall continue to be a condition precedent to City's performance. 12.4 Notice of Default to Mortgagee: Right of Mortgagee to Cure. Each Mortgagee shall, upon written request to City, be entitled to receive written notice from City of: (i) the results of the periodic review of compliance specified in Article 7 of this Agreement, and (ii) any default by Qwne Property Owner of its obligations set forth in this Agreement. Each Mortgagee shall have a further right, but not an obligation, to cure the Default within ten (10) days after receiving a Notice of Default with respect to a monetary Default and within thirty (30) days after receiving a Notice of Default with respect to a non - monetary Default. If the Mortgagee can only remedy or cur a non - monetary Default by obtaining possession of the Property, then the Mortgagee shall have the right to seek to obtain possession with diligence and continuity through a receiver or otherwise, and to remedy or cure the non - monetary Default within thirty (30) days after obtaining possession and, except in case of emergency or to protect the public health or safety, City may not exercise any of its judicial remedies set forth in this Agreement to terminate or substantially alter the rights of the Mortgagee until expiration of the thirty (30) -day period. In the case of a non - monetary Default that cannot with diligence be remedied or cured within thirty (30) days, the Mortgagee shall have additional time as is reasonably necessary to remedy or cure the Default, provided the Mortgagee promptly commences to cure the non - monetary Default within thirty (30) days and diligently prosecutes the cure to completion. %WX1773 WOLM.II FINAL 21 top- 13. Miscellaneous Terms. 13.1 Notices. Any notice or demand that shall be required or permitted by law or any provision of this Agreement shall be in writing. If the notice or demand will be served upon a Party, it either shall be personally delivered to the Party; deposited in the United States mail, certified, return receipt requested, and postage prepaid; or delivered by a reliable courier service that provides a receipt showing date and time of delivery with courier charges prepaid. The notice or demand shall be addressed as follows: TO CITY: City of Newport Beach 3300 Newport Boulevard Post Office Box 1768 Newport Beach, California 92663 -3884 Attn: City Manager With a copy to: City Attorney City of Newport Beach 3300 Newport Boulevard Post Office Box 1768 Newport Beach, California 92663 -3884 TO G*R49RPROPERTY Golf Realty Fund OWNER: One Upper Newport Plaza Newport Beach, California 92660 Attn: Robert O Hill With a copy to: Tim Paone Theodora Oringher PC 535 Anton Boulevard, Ninth Floor Costa Mesa, CA 92626 Either Party may change the address stated in this Section 13.1 by delivering notice to the other Party in the manner provided in this Section 13. 1, and thereafter notices to such Party shall be addressed and submitted to the new address. Notices delivered in accordance with this Agreement shall be deemed to be delivered upon the earlier of: (i) the date received or (iii) three business days after deposit in the mail as provided above. 13.2 Freieet-asPrivate Undertakina. Any future Development T+,e-9ere}epx*xt -of the Project is a private undertaking. Neither Party wil a is- acting as the agent of the other in any respect, and each Party will be is an independent contracting entity with respect to the terms, covenants, and conditions set forth in this Agreement. This Agreement forms no partnership, joint venture, or other association of any kind. The only relationship between the Parties is that of a government entity regulating the Development of private property by the owner owner or user of the P operty. AI IMM W 01 06.11 FlNM. 22 03 13.3 C000eration. Each Party shall cooperate with and provide reasonable assistance to the other Party to the extent consistent with and necessary to implement this Agreement. Upon the request of a Party at any Lime, the other Party shall promptly execute, with acknowledgement or affidavit if reasonably required, and file or record the required instruments and writings and take any actions as may be reasonably necessary to implement this Agreement or to evidence or consummate the transactions contemplated by this Agreement. 13.4 Estoppel Certificates. At any time, either Party may deliver written notice to the other Party requesting that that Party certify in writing that, to the best of its knowledge: (i) this Agreement is in full force and effect and is binding on the Party; (ii) this Agreement has not been amended or modified either orally or in writing or, if this Agreement has been amended, the Party providing the certification shall identify the amendments or modifications; and (iii) the requesting Party is not in Default in the performance of its obligations under this Agreement and no event or situation has occurred that with the passage of time or the giving of Notice or both would constitute a Default or, if such is not the case, then the other Party shall describe the nature and amount of the actual or prospective Default. The Parry requested to furnish an estoppel certificate shall execute and return the certificate within thirty (30) days following receipt. Requests for the City to furnish an estoppel certificate shall include reimbursement for all administrative costs incurred by the City including reasonable attorneys fees incurred by the City in furnishing an estoppels certificate. 13.5 Rules of Construction. The singular includes the plural; the masculine and neuter include the feminine; "shall" is mandatory; and "may" is permissive. 13.6 Time Is of the Essence. Time is of the essence regarding each provision of this Agreement as to which time is an element. 13.7 Waiver The failure by a Party to insist upon the strict performance of any of the provisions of this Agreement by the other Party, and failure by a Party to exercise its rights upon a Default by the other Party, shall not constitute a waiver of that Party's right to demand strict compliance by the other Party in the future. 13.8 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be identical and may be introduced in evidence or used for any other purpose without any other counterpart, but all of which shall together constitute one and the same agreement. ANlMM W 01.06.11 FlNA 23 10� 13.9 Entire Agreement. This Agreement constitutes the entire agreement between the Parties and supersedes all prior agreements and understandings, both written and oral, between the Parties with respect to the subject matter addressed in this Agreement. 13.10 Severability. The Patties intend that each and every obligation of the Parties is interdependent and interrelated with the other, and if any provision of this Agreement or the application of the provision to any Party or circumstances shall be held invalid or unenforceable to any extent, it is the intention of the Parties that the remainder of this Agreement or the application of the provision to persons or circumstances shall be rendered invalid or unenforceable. The Parties intend that neither Party shall receive any of the benefits of the Agreement without the full performance by such Party of all of its obligations provided for under this Agreement. Without limiting the generality of the foregoing, the Parties intend that AwnefPrro ertv Owner shall not receive any of the benefits of this Agreement if any of OwnefProperty Owner's obligations are rendered void or unenforceable as the result of any third party litigation, and City shall be free to exercise its legislative discretion to amend or repeal the Development Regulations applicable to the Property and OwttefProoerty Owner shall cooperate as required, despite this Agreement, should third party litigation result in the nonperformance of OwwefProoerty Owner's obligations under this Agreement. The provisions of this Section 13.10 shall apply regardless of whether the Effective Date occurs and after the Termination Date. 13.11 Construction. This Agreement has been drafted after negotiation and revision. Both City and AweefPropertv Owner are sophisticated parties who were represented by independent counsel throughout the negotiations or City and Aw,ft�fProoertv Owner had the opportunity to be so represented and voluntarily chose to not be so represented. City and AwFwProverty Owner each agree and acknowledge that the terms of this Agreement are fair and reasonable, taking into account their respective purposes, terns, and conditions. This Agreement shall therefore be construed as a whole consistent with its fair meaning and applicable principle or presumptions of contract construction or interpretation, if any, shall be used to construe the whole or any par of this Agreement in favor of or against either Party. 13.12 Successors and Assiens: Constructive Notice and Acceptance. The burdens of this Agreement shall be binding upon, and the benefits of this Agreement shall inure to, all successors in interest to the Parties to this Agreement. All provisions of this Agreement shall be enforceable as equitable servitudes and constitute covenants running with the land. Each covenant to do or refrain from doing some act hereunder with regard to Development of the Property: (i) is for the benefit of and is a burden upon every portion of the Property; (ii) runs with the Property and each portion thereof; and (iii) is binding upon each Party and each successor in interest during its ownership uwnefskip of the Property or any portion thereof. Every person or entity who now or later owns or acquires any right, title, or interest in any part of the Project or the Property is and shall be conclusively deemed to have consented and agreed to every provision of this Agreement. This Section 13.12 applies regardless of whether the Aln.wrn vIOLM.n MN, 24 o5, instrument by which such person or entity acquires the interest refers to or acknowledges this Agreement and regardless of whether such person or entity has expressly entered into an assignment and assumption agreement as provided for in Section 11. 13.13 No Third Party Beneficiaries. The only Parties to this Agreement are City and OwflePPro ertv Owner. This Agreement does not involve any third party beneficiaries, and it is not intended and shall not be construed to benefit or be enforceable by any other person or entity. 13.14 Applicable Law and Venue. This Agreement shall be construed and enforced consistent with the internal laws of the State of California, without regard to conflicts of law principles. Any action at law or in equity arising under this Agreement or brought by any Party for the purpose of enforcing, construing, or determining the validity of any provision of this Agreement shall be filed and tried in the Superior Court of the County of Orange, State of California, or the United States District Court for the Central District of California. The Parties waive all provisions of law providing for the removal or change of venue to any other court. 13.15 Section Headings. All section headings and subheadings are inserted for convenience only and shall not affect construction or interpretation of this Agreement. 13.16 Incorporation of Recitals and Exhibits. All of the Recitals are incorporated into this Agreement by this reference. Exhibits A and B are attached to this Agreement and incorporated by this reference as follows: EXHIBIT DESCRIPTION DESIGNATION A Legal Description of Property B Depiction of the Property 13.17 Recordation. The City Clerk of City shall record this Agreement and any amendment, modification, or cancellation of this Agreement in the Office of the County Recorder of the County of Orange within the period required by California Government Code section 65868.5 and City of Newport Beach Municipal Code section 15.45.090. The date of recordation of this Agreement shall not modify or amend the Effective Date or the Termination Date. AlO W773 1401.% 11 RNAI. 25 SIGNATURE PAGE TO DEVELOPMENT AGREEMENT "OWNERPROPERTY OWNER" By: Kyv-ra CITY OF NEWPORT BEACH La Its: Mayor City Clerk APPROVED AS TO FORM: Aaron Harp, City Attorney A104om WOLVAiMAL 26 107 STATE OF CALIFORNIA COUNTY OF ORANGE On , before me, the undersigned, a Notary Public in and for said State, personally appeared and , personally known to me to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacities and that by their signature on the instrument the persons, or the entity upon behalf of which the persons acted, executed the instrument. Witness my hand and official seal. Notary Public in and for said County and State STATE OF CALFORNIA COUNTY OF ORANGE On , before me, the undersigned, a Notary Public in and for said State, personally appeared and , personally known to me to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacities and that by their signature on the instrument the persons, or the entity upon behalf of which the persons acted, executed the instrument. Witness my hand and official seal. Notary Public in and for said County and State A 1 ann .a oLMII rwm -27- 17 EXHIBIT A LEGAL DESCRIPTION OF PROPERTY The Pronerty Tem& lw: Parcel I and Parcel 2 of Parcel Map 94 -102, in the City of Newport Beach, County of Orange, State of California, as per Map filed in Book 316, Pages 3 to 6, inclusive, of Parcel Maps, in the office of the County Recorder of Orange County. Al")771 W O 0 11 FINAL oq EXHIBIT B TO BE INSERTED IUfTEN PLAN .IMEIOMM1 ttUB w6 .T .... c..ee.— .ev V PImNGoiry � Q ... •u xrt�cruu AIO-0 73 W 01.06.11 MA 110 � o / .7 lOy��+�.� V PImNGoiry � Q ... •u xrt�cruu AIO-0 73 W 01.06.11 MA 110 A MICHAEL RECUPERO, ESQ. March 13, 2012 Honorable Council Members, Newport Beach City Council C/O Leilani Brown, City Clerk CITY OF NEWPORT BEACH 3300 Newport Boulevard Newport Beach, CA 92663 BY ELECTRONIC MAIL ONLY "fECL-N` R ERAGEt��A Re: March 13, 2012 City Council Agenda Item 14: NEWPORT BEACH COUNTRY CLUB (PA2005 -140) - GOLF REALTY FUND -1600 AND 1602 EAST COAST HIGHWAY. Dear Honorable Councilmembers: This letter is written on behalf of one -half of the fee ownership of the property described above' (the "Property") which is being considered for entitlement tonight for the benefit of Golf Realty Fund ( "GRF "). Our position remains that GRF and the City cannot entitle the Property, or create a binding development agreement for the Property, without the owners' consent. With respect to Mr. OHill's "alternative plan" for the golf course site leased by the International Bay Clubs, for the next 56 years, we continue to believe it should be denied for several reasons: • Mr. OHill's proposed alternative site plan is less desirable than the approved IBC plan which allows for a generous setback between the parking lot and PCH, and is appropriately sized and appointed for the needs of the facility. Mr. OHill's "personal vision" for the parking lot makes little sense in the context of its use, and according to testimony received by the City, would a) endanger the Toshiba The Fainbarg Family Trust (managed by Irving Chase), the Mira Mesa Shopping Center -West LLC, and the Mesa Shopping Center -East LLC (managed by Elliot Feuerstein), collectively own 50% of the Property. 31877 Del Obispo St. • Suite 204 San Juan Capistrano, CA 92675 -3228 Ph: 949.429.6300 Fax: 949.429.6303 City of Newport Beach March 13, 2012 - Tournament, b) conflict with the IBC's operational requirements, and c) likely drive the adjacent nursery to discontinue business in Newport Beach. ® To the extent Mr. OHill suggests his "alternative plan" provides flexibility to the ownership, we do not agree. It only provides confusion for the public, the City and the California Coastal Commission going forward. Mr. OHill's concept of entitling the same piece of property with two distinct projects is a questionable planning practice in this situation, and one that it seems the City should not engender. I appreciate you taking the time to consider these comments. Thank you. Sincerely, Michael Recupero, Esq. Ecc: Elliot Feuerstein Irving Chase John Olson, Esq. Kimberly Brandt Aaron Harp, Esq. Leonie Mulvihill, Esq. PAOe 2 MICHAEL RECUrFRO, EsQ. CITY OF N EACH OFFICE OF THEu.; pTT�RNEY DATE: March 13, 2012 T`= C C!_FK TO: Honorable Mayor & Members of the City Council FROM: Leonie Mulvihill, Assistant City Attorney MATTER: NEWPORT BEACH COUNTRY CLUB (PA2005 -140) - GOLF REALTY FUND - 1600 AND 1602 EAST COAST HIGHWAY - No.: A10 -00773 SUBJECT: City Council Meeting March 13, 2012, Minor Revision to Agenda Item No. 14 The Office of the City Attorney and City staff request a modification to the proposed Development Agreement included in Agenda Item 14. Specifically, we request that Recital F, Section 1, Definitions ( "Development Plan "), and Exhibit B be revised as set forth in Attachment No. 1. We have attached clean copies reflecting revisions in Attachment No. 2. We have confirmed that the applicant is agreeable to these modifications. Submitted by: �F CE OF T E Cl ATTORNEY onie Mulvihill Assistant City Attorney Attachments: Attachment 1- Legislative Copy of Proposed Change cc: Aaron C. Harp, City Attorney Kimberly Brandt, Director of Community Development [A10- 00773] -M &CC from LM 03 -13.12 Revisions to Section 3.1 ATTACHMENT I F. In recognition of the significant public benefits that this Agreement provides, the City Council has found that this Agreement: (i) is consistent with the City of Newport Beach General Plan as of the date of this Agreement; (ii) is in the best interests of the health, safety, and general welfare of City, its residents, and the public; (iii) is entered into pursuant to, and constitutes a present exercise of, City's police power; (iv) is consistent and has been approved consistent with the Final Environmental Impact Report for the City of Newport Beach General Plan 2006 Update (State Clearinghouse No. 2006011119) and the Mitigated Negative Declaration No. ND2010 -008 for the Newport Beach Country Club Planned Community District (PA2005 -002 ' approved by the City Council on or before the Agreement Date, both of which analyze the environmental effects of the proposed development of the Project on the Property; and (v) is consistent and has been approved consistent with provisions of California Government Code section 65867 and City of Newport Beach Municipal Code chapter 15.45. G. On October 20, 201 Fand November 17, 2011 , City's Planning Commission held public hearings on this Agreement, and on November 17, 2011, made findings and determinations with respect to this Agreement, and recommended to the City Council that the City Council approve this Agreement. H. On January 24, 2012 and March. 13, 2012 , the City Council also held public hearings on this Agreement and considered the Planning Commission's recommendations and the testimony and information submitted by City staff, Property Owner, and members of the public. On March 27, 2012 , consistent with applicable provisions of the Development Agreement Statute and Development Agreement Ordinance, the City Council adopted its Ordinance No. 2012 -3 (the "Adopting Ordinance "), finding this Agreement to be consistent with the City of Newport Beach General Plan and approving this Agreement. AGREEMENT NOW, THEREFORE, City and Property Owner agree as follows: Definitions. In addition to any terms defined elsewhere in this Agreement; the following terms when used in this Agreement shall have the meanings set forth below: "Action" shall have the meaning ascribed in Section 8.10 of this Agreement. "Adopting Ordinance" shall mean City Council Ordinance No. 2012 -3 approving and adopting this Agreement. "Agreement" shall mean this Development Agreement, as the same may be amended from time to time. "Agreement Date" shall mean March 27, 2012, which date is the date the City Council adopted the Adopting Ordinance. "CEO A" shall mean the California Environmental Quality Act (California Public Resources Code Sections 21000-21177) and the implementing regulations promulgated A10A 773 v403.13.12PMAL thereunder by the Secretary for Resources (California Code of Regulations, Title 14, section 15000 et seq.) ( "CEQA. Guidelines "), as the same may be amended from time to time. "City" shall mean the City of Newport Beach, a California charter city. "City Council" shall mean the governing body of City. "City's Affiliated Parties" shall have the meaning ascribed in Section 10.1 of this Agreement. "Claim" shall have the meaning ascribed in Section 10.1 of this Agreement. "CPI Index" shall mean the Consumer Price Index published from time to time by the United States Department of Labor for all urban consumers. (all items) for the smallest geographic area that includes the City or, if such index is discontinued, such other similar index as may be publicly available that is selected by City in its reasonable discretion. "Cure Period" shall have the meaning ascribed in Section 8.1 of this Agreement. "Default" shall have the meaning ascribed to that term in Section 8.1 of this Agreement. "Develop" or "Development" shall mean to improve or the improvement of the Property for the purpose of completing the structures, improvements, and facilities comprising the Project, including but not limited to: grading; the construction of infrastructure and public facilities related to the Project, whether located within or outside the Property; the construction of all of the private improvements and facilities comprising the Project; the preservation or restoration, as required of natural and man -made or altered open space areas; and the installation of landscaping. The terns "Develop" and "Development," as used herein, do not include the maintenance, repair, reconstruction, .replacement, or redevelopment of any structure, improvement, or facility after the initial construction and completion thereof. "Development Agreement Ordinance" shall mean Chapter 15.45 of the City of Newport Beach Municipal Code. "Development Agreement Statute" shall mean California Government Code Sections 65864 - 65869.5, inclusive. "Development Exactions" shall mean any requirement of City in connection with or pursuant to any ordinance, resolution, rule, or official policy for the dedication of land, the construction or installation of any public improvement or facility, or the payment of any fee or charge in order to lessen, offset, mitigate, or compensate for the impacts of Development of the Project on the environment or other public. interests. "Development Plan" shall mean the Newport Beach .Planned Community-Development Plan No. PC2005 -002 for the Property adopted by Ordinance No. 2012 -2, Vesting Tentative Tract Map No. NT2005 -003; Site Development Review No. SD2011 -002 as approved by Resolution No. 2012 -10 for the Property, Limited Term Permit No. XP2011 -004, and AI0 -00773 v403.13.I2FINAL EXHIBIT B DEPICTION OF PROPERTY MA7 ii 0 GIGII! MASTER PLAN -THETENNIS CLUB.S.b.Ne. I new vedium coon Tennis Outhouse • THE VILLAS - Sub Penn .5 single family homes -THE BUNGALOWS - Sob Anon - n ounel,emnal.ains r Planned Conwivinity vp—f:= A' It C H71 TIE C'T A E, TExt FIG I off Comment [12] Table fC..= - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - updated pnonlo — - - - -- d* jklLL00773 va 01.06.11 FINAL IN101 ���.�iTw ►r�� F. In recognition of the significant public benefits that this Agreement provides, the City Council has found that this Agreement: (i) is consistent with the City of Newport Beach General Plan as of the date of this Agreement; (ii) is in the best interests of the health, safety, and general welfare of City, its residents, and the public; (iii) is entered into pursuant to, and constitutes a present exercise of, City's police power; (iv) is consistent and has been approved consistent with the Final Environmental Impact Report for the City of Newport Beach General Plan 2006 Update (State Clearinghouse No. 200601 1 1 1 9) and the Mitigated Negative Declaration No. ND2010 -008 for the Newport Beach Country Club Planned Community District (PA2005 -002) approved by the City Council on or before the Agreement Date, both of which analyze the environmental effects of the proposed development of the Project on the Property; and (v) is consistent and has been approved consistent with provisions of California Government Code section 65867 and City of Newport Beach Municipal Code chapter 15.45. G. On October 20, 2011 and November 17, 2011 , City's Planning Commission held public hearings on this Agreement, and on November 17, 2011, made findings and determinations with respect to this Agreement, and recommended to the City Council that the City Council approve this Agreement. H. On January 24, 2012 and March 13, 2012 , the City Council also held public hearings on this Agreement and considered the Planning Commission's recommendations and the testimony and information submitted by City staff, Property Owner, and members of the public. On March 27, 2012 , consistent with applicable provisions of the Development Agreement Statute and Development Agreement Ordinance, the City Council adopted its Ordinance No. 2012 -3 (the "Adopting Ordinance "), finding this Agreement to be consistent with the City of Newport Beach General Plan and approving this Agreement. AGREEMENT NOW, THEREFORE, City and Property Owner agree as follows: 1. Definitions. In addition to any terms defined elsewhere in this Agreement, the following terns when used in this Agreement shall have the meanings set forth below: "Action" shall have the meaning ascribed in Section 8.10 of this Agreement. "Adopting Ordinance" shall mean City Council Ordinance No. 2012 -3 approving and adopting this Agreement. "Agreement" shall mean this Development Agreement, as the same may be amended from time to time. " Agreement Date" shall mean March 27, 2012, which date is the date the City Council adopted the Adopting Ordinance. "CEOA" shall mean the California Environmental Quality Act (California Public Resources Code Sections 21000-21177) and the implementing regulations promulgated AIO -00773 v4 03.13.12 FINAL 2 thereunder by the Secretary for Resources (California Code of Regulations, Title 14, section 15000 et seq.) ( "CEQA Guidelines "), as the same may be amended from time to time. "City" shall mean the City of Newport Beach, a California charter city. "City Council" shall mean the governing body of City. "City's Affiliated Parties" shall have the meaning ascribed in Section 10.1 of this Agreement. "Claim" shall have the meaning ascribed in Section 10.1 of this Agreement. "CPI Index" shall mean the Consumer Price Index published from time to time by the United States Department of Labor for all urban consumers (all items) for the smallest geographic area that includes the City or, if such index is discontinued, such other similar index as may be publicly available that is selected by City in its reasonable discretion. "Cure Period" shall have the meaning ascribed in Section 8.1 of this Agreement. "Default" shall have the meaning ascribed to that tern in Section 8.1 of this Agreement. "Develop" or "Development" shall mean to improve or the improvement of the Property for the purpose of completing the structures, improvements, and facilities comprising the Project, including but not limited to: grading; the construction of infrastructure and public facilities related to the Project, whether located within or outside the Property; the construction of all of the private improvements and facilities comprising the Project; the preservation or restoration, as required of natural and man -made or altered open space areas; and the installation of landscaping. The terms "Develop" and "Development," as used herein, do not include the maintenance, repair, reconstruction, replacement, or redevelopment of any structure, improvement, or facility after the initial construction and completion thereof. "Development Agreement Ordinance" shall mean Chapter 15.45 of the City of Newport Beach Municipal Code. "Development Agreement Statute" shall mean California Government Code Sections 65864- 65869.5, inclusive. "Development Exactions" shall mean any requirement of City in connection with or pursuant to any ordinance, resolution, rule, or official policy for the dedication of land, the construction or installation of any public improvement or facility, or the payment of any fee or charge in order to lessen, offset, mitigate, or compensate for the impacts of Development of the Project on the environment or other public interests. "Development Plan" shall mean the Newport Beach Planned Community Development Plan No. PC2005 -002 for the Property adopted by Ordinance No. 2012 -2, Vesting Tentative Tract Map No. NT2005 -003, Site Development Review No. SD2011 -002 as approved by Resolution No. 2012 -10 for the Property, Limited Term Permit No. XP2011 -004, and AIM0773 v403.13.12 FINAL 3 EXHIBIT B DEPICTION OF PROPERTY MASTER PLAN \ THE TENNIS CLUB - Sub -Area 1 new stadium court - - Tennis Clubhouse • THE VILLAS - Sub Area 5 single family homes THE BUNGALOWS - Sub Area 77 guest rental units >V I THIS � a .116AI�WS I ® THE • � � TENNIS CLUB i 1 _\ - -- - - Planned Community -- - - - - - -- - - -- • s • a r n s EXHIBIT ARCHITECTURE IOF1 A10.00773 V403.13.12 FINAL 1 March 13, 2012 Honorable Mayor Nancy Gardner and Members of the City Council City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92663 Subject: Golf Realty Fund (PA2005 -140) Approval Honorable Councilmembers: ,1L Jl. Lid hU L,'�ria PRINTED:" - 3 i3 is iuf2 MR 13 PM s. 41' OFFICE OF TH_ CITY CLERK CITY OF i 1E'.,PORT BEACH Thank you for the opportunity to present the following comments regarding the Council's consideration of an alternate golf clubhouse site plan for the proposed Golf Realty Fund project. The City Council acted on January 24, 2012 to approve'GolfRealty Fund's tennis club project, winch involves the elimination of several tennis courts and the construction of a new clubhouse, residential and hotel rooms. The Council's action did not approve Golf Realty Fund's golf clubhouse for the adjacent Newport Beach Country Club site, rather, Newport Beach Country Club, Incorporated's plan was approved. however, tonight the Council is being asked to reconsider that action- I have been following this project through the Newport Beach Planning Commission and City Council actions and because the City's January 24, 2012 approval did not include the golf clubhouse associated with the Golf Realty Fund project I have not previously submitted comments in writing. However, now that the Council is considering the approval of the alternate plan for the golf clubhouse, I have the following comments on the deficiencies in the Mitigated Negative Declaration (NM) prepared for the Golf Realty Fund project Besides the obvious loss of the tennis courts, which is an impact to recreation facilities, the project could impact surrounding residences and businesses. Mitigation should be provided for the loss of recreational uses. In addition, the project description lacks the necessary specificity required to fiilly analyze each aspect of the project. The lack of detail for amenities such as the swimming pool and the golf clubhouse internal components leaves the reader with more questions than answers. The inadequate project description does not give the public an opportunity to review specifics of all the components or potential impacts on the community. The California Environmental Quality Act (CEQA) requires that all phases of project planning, implementation and operation must be considered in the preparation of environmental documents. More specific detail is required regarding each aspect of the project to present a cohesive picture. The golf course is currently host to a variety of professional and charity golf tournaments as well as luncheons, banquets and other special events. These events have been on -going for a number of years and have been well received within the community. It is a benefit to the City of Newport Beach to have a facility of this stature to provide these special event opportunities. However, the MND does not describe what uses will be included in the clubhouse and how much square footage will be devoted to each use. Without such detail, it is unclear whether adequate parking will be provided for the golf clubhouse, since the alternate plan has significantly fewer parking spaces than the existing clubhouse. Again, CEQA requires a project description to be accurate and finite. The NM fails to accurately assess the aesthetic and recreational impacts of the project on the Newport Beach Country Club. The plans provided locate the residences and hotel units directly adjacent to the golf course and there is no discussion of whether it is safe to place these units on the golf course. There is also no discussion of bow these units will impact the views from the existing golf course. The MND should have detailed the height and massing of the structures as they relate to the golf course. CEQA specifically requires consideration of whether a project would have a substantial adverse effect on a scenic vista, damage scenic resources, substantially degrade the existing visual character or quality of the site or create a new source of substantial light or glare. The MND does not provide adequate visual support via view simulations for the general public to determine if any aesthetic thresholds have been exceeded. With regard to the parking lot configuration, not only is it not user - friendly, it could present significant safety hazards as patrons could potentially choose to weave between cars and through landscaping to access the building entrances rather than walking to the ends of the drive aisles. The circulation pattern for this parking lot layout creates a significant hazard due to people potentially walking between cars and into drive aisles where approaching cars might be unaware of their presence_ The industry standard is to orient parking stalls in rows in a manner that doesn't require that a person accessing the clubhouse must walk in between parked cars. The MND does not address this unusual parking lot layout and the impact it will have on pedestrian circulation patterns. The elimination of the frontage road between Armstrong Nursery and Irvine Terrace Drive is also a significant safety hazard for customers of the nursery who wish to use the signalized intersection at Irvine Terrace and East Coast Highway. Since the roadway currently exists, and has been used for many years, removal of this important access would be a significant impact that is not analyzed in the MND. Beyond public safety, the frontage road improves the circulation on the site and the surrounding area during the annual Toshiba Tournament, which is currently underway_ The MND does not analyze the impacts of the removal of the frontage road on traffic and circulation. The MND also fails to address Golf Rea* Fund's ability to develop the golf clubhouse; as proposed. The golf course /golf clubhouse portion of the site is currently under a lease that has a remaining term of over 50 years. How does Golf Realty Fund plan to implement a project approval considering the existing lease? The NM completely ignores this important information_ If project approval cannot take effect until the current lease expires, please explain the process the City envisions for effecting an approval that was previously denied by the Planning Commission and City Council and cannot be built for more than half a century. Even by ignoring the lease, which the MND does, surely the City's building and development standards will change at some point in the next decade, and it is unclear why the City would want to approve an alternative site plan that would not be implemented unless Newport Beach Country Club, Incorporated's plan is not built What would be the effect on the Newport Beach Country Club, Incorporated's ability to move forward with their golf clubhouse renovation project which was just approved by the City? For the reasons stated above, I believe that the City Council should uphold the original decision on the Golf Realty Fund golf clubhouse. The Golf Realty Fund project is inadequately described and lacking in the level of environmental analysis required due to the deficiencies in the MND. The approvals by the City of two competing projects should also cause concern to anyone trying to upgrade or redevelop leased property in the City. What impact would an approval of the Golf Realty Fund project have on the currently approved Newport Beach Country Club project? It would seem that a bona fide lessee should be allowed to advance an approved project without fear that the approval could be overturned by a subsequent City Council action in which they have no part. Thank you for your consideration of these comments. Roy W. eVaneyJ RECEIVED iW2 MAR 14 AM 9: 29 March 13 2012 ' OFFICE OF THE CiTY CLERK CITY Or 1-21N'rORT BEACH Honorable Mayor Nancy Gardner and Members of the City Council City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92663 Subject: Golf Realty Fund (PA2005 -140) Approval Honorable Councilmembers: Thank you for the opportunity to present the following comments regarding the Council's consideration of an alternate golf clubhouse site plan for the proposed Golf Realty Fund project. The City Council acted on January 24, 2012 to approve Golf Realty Fund's tennis club project, which involves the elimination of several tennis courts and the construction of a new clubhouse, residential and hotel rooms. The Council's action did not approve Golf Realty Fund's golf clubhouse for the adjacent Newport Beach Country Club site, rather, Newport Beach Country Club, Incorporated's plan was approved. However, tonight the Council is being asked to reconsider that action. I have been following this project through the Newport Beach Planning Commission and City Council actions and because the City's January 24, 2012 approval did not include the golf clubhouse associated with the Golf Realty Fund project I have not previously submitted comments in writing. However, now that the Council is considering the approval of the alternate plan for the golf clubhouse, I have the following comments on the deficiencies in the Mitigated Negative Declaration (MND) prepared for the Golf Realty Fund project. Besides the obvious loss of the tennis courts, which is an impact to recreation facilities, the project could impact surrounding residences and businesses. Mitigation should be provided for the loss of recreational uses. In addition, the project description lacks the necessary specificity required to fully analyze each aspect of the project. The lack of detail for amenities such as the swimming pool and the golf clubhouse internal components leaves the reader with more questions than answers. The inadequate .project description does not give the public an opportunity to review specifics of all the components or potential impacts on the community. The California Environmental Quality Act (CEQA) requires that all phases of project planning, implementation and operation must be considered in the preparation of environmental documents. More specific detail is required regarding each aspect of the project to present a cohesive picture. The golf course is currently host to a variety of professional and charity golf tournaments as well as luncheons, banquets and other special events. These events have been on -going for a number of years and have been well received within the community. It is a benefit to the City of Newport Beach to have a facility of this stature to provide these special event opportunities. However, the MND does not describe what uses will be included in the clubhouse and how much square footage will be devoted to each use. Without such detail, it is unclear whether adequate parking will be provided for the golf clubhouse, since the alternate plan has significantly fewer parking spaces than the existing clubhouse. Again, CEQA requires a project description to be accurate and finite. The MND fails to accurately assess the aesthetic and recreational impacts of the project on the Newport Beach Country Club. The plans provided locate the residences and hotel units directly adjacent to the golf course and there is no discussion of whether it is safe to place these units on the golf course. There is also no discussion of how these units will impact the views from the existing golf course. The MND should have detailed the height and massing of the structures as they relate to the golf course. CEQA specifically requires consideration of whether a project would have a substantial adverse effect on a scenic vista, damage scenic resources, substantially degrade the existing visual character or quality of the site or create a new source of substantial light or glare. The MND does not provide adequate visual support via view simulations for the general public to determine if any aesthetic thresholds have been exceeded. With regard to the parking lot configuration, not only is it not user - friendly, it could present significant safety hazards as patrons could potentially choose to weave between cars and through landscaping to access the building entrances rather than walking to the ends of the drive aisles. The circulation pattern for this parking lot layout creates a significant hazard due to people potentially walking between cars and into drive aisles where approaching cars might be unaware of their presence. The industry standard is to orient parking stalls in rows in a manner that doesn't require that a person accessing the clubhouse must walk in between parked cars. The MND does not address this unusual parking lot layout and the impact it will have on pedestrian circulation patterns. The elimination of the frontage road between Armstrong Nursery and Irvine Terrace Drive is also a significant safety hazard for customers of the nursery who wish to use the signalized intersection at Irvine Terrace and East Coast Highway. Since the roadway currently exists, and has been used for many years, removal of this important access would be a significant impact that is not analyzed in the MND. Beyond public safety, the frontage road improves the circulation on the site and the surrounding area during the annual Toshiba Tournament, which is currently underway. The NlND does not analyze the impacts of the removal of the frontage road on traffic and circulation. The MND also fails to address Golf Realty Fund's ability to develop the golf clubhouse, as proposed. The golf course /golf clubhouse portion of the site is currently under a lease that has a remaining term of over 50 years. How does Golf Realty Fund plan to implement a project approval considering the existing lease? The MND completely ignores this important information. If project approval cannot take effect until the current lease expires, please explain the process the City envisions for effecting an approval that was previously denied by the Planning Commission and City Council and cannot be built for more than half a century. Even by ignoring the lease, which the MND does, surely the City's building and development standards will change at some point in the next decade, and it is unclear why the City would want to approve an alternative site plan that would not be implemented unless Newport Beach Country Club, Incorporated's plan is not built. What would be the effect on the Newport Beach Country Club, Incorporated's ability to move forward with their golf clubhouse renovation project which was just approved by the City? For the reasons stated above, I believe that the City Council should uphold the original decision on the Golf Realty Fund golf clubhouse. The Golf Realty Fund project is inadequately described and lacking in the level of environmental analysis required due to the deficiencies in the MND. The approvals by the City of two competing projects should also cause concern to anyone trying to upgrade or redevelop leased property in the City. What impact would an approval of the Golf Realty Fund project have on the currently approved Newport Beach Country Club project? It would seem that a bona fide lessee should be allowed to advance an approved project without fear that the approval could be overturned by a subsequent City Council action in which they have no part. Thank you for your consideration of these comments. Roy W. DeVaney Jr. "RECEIVED AfTER AGS4%A PRi:lEJ:" —! RESOLUTION NO. 2012 -10 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH APPROVING THE CONVERSION OF 17 TENNIS COURTS TO 27 HOTEL UNIT, SITE DEVELOPMENT PERMIT NO. SD2011 -002, LIMITED TERM PERMIT NO. XP2011- 004, AND VESTING TENTATIVE MAP NO. NT2005 -003 AND DENYING TRANSFER OF DEVELOPMENT RIGHTS NO. TD2010 -003 FOR THE NEWPORT BEACH COUNTRY CLUB PROPERTY LOCATED AT 1600 & 1602 EAST COAST HIGHWAY (PA2005 -140) THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. An application was fled by Golf Realty Fund, with respect to property located at 1600 & 1602 East Coast Highway, and legally described as Parcels 1 and 3 of Parcel Map No. 79 -704 and Parcel 1 and Parcel 2 of Parcel Map 94 -102, requesting an approval to redevelop the existing private golf course and tennis club of the Newport Beach Country Club. The application included the following requests: a. A Planned Community Development Plan adoption to provide development standards and design guidelines for the golf course and tennis club and their ancillary uses, pursuant to Chapter 20.63 of the Municipal Code. b. A Transfer of Development Rights to transfer 27 hotel units from Anomaly No. 43 (Newport Beach Marriott Hotel and Spa site) to Anomaly No. 46 (the Tennis Club site), pursuant to General Plan Land Use Policies LU4.3 and LU6.14.3. C. A Site Development Permit to allow the construction of 35,000 square -foot golf clubhouse and parking lot, twenty -seven (27) hotel units with a 2,170 square - foot concierge and guest meeting facility and a 7,490 square -foot spa /fitness center, five (5) single -unit residential dwellings, a 3,725 square -foot tennis clubhouse, and one lighted stadium- center tennis court, pursuant to the Section 4.3 of the Newport Beach Country Planned Community Development Plan. d. A Vesting Tentative Tract Map to create separate lots for five (5) single -unit residential dwellings, twenty (27) hotel units, tennis club facility, lettered lots for common areas and a private street, pursuant to Title 19 of the Municipal Code. e. A Limited Term Permit (Temporary Structures and Uses) to allow temporary use of structures during construction pursuant to Section 20.60.015 of the Municipal Code. f. A Development Agreement pursuant to Section 15.45.020.A.2.c of the Municipal Code which requires a development agreement as the project includes a zoning code amendment and new non- residential development in City Council Resolution. No. 2012 -10 Paoe 2 of 21 Statistical Area 1_1 (Newport Center /Fashion Island) and General Plan Land Use Policy LU6.14.8 which requires a development agreement since the proposed project is a mixed -use development project and the proposed five (5) single - family units will be drawn from the 450 residential units allocated for the Newport Center /Fashion Island. 2. The application was deemed complete on November 5, 2009; and pursuant to Ordinance No. 2010 -21, the application is being considered and evaluated pursuant to the Zoning Code in effect prior to November 25, 2010. 3. The Planning Commission held public hearings on August 4, 2011, October 20, 2011, and November 17, 2011. At the November 17th hearing with a vote of 3 -2, the Planning Commission adopted Resolution No. 1861, recommending the City Council to: a. Adopt Mitigated Negative Declaration No. ND2010 -008, an Errata to the Mitigated Negative Declaration, and the Mitigation Monitoring and Reporting Program; b. Approve Planned Community Development Plan No. PC2005 -002, as proposed by staff, for the entire project site which includes the Golf Club and Tennis Club sites; C. Approve a conversion of 17 tennis court to 27 hotel units and deny Transfer of Development Rights No. TD2010 -003; d. Approve Site Development Permit No. SD2011 -002 and Limited Term Permit No. XP2011 -004, as proposed by the applicant, for the improvements to the Tennis Club portion of the project site reserving for future consideration the identification of improvements to the Golf Club portion of the project site; e. Approve Vesting Tentative Tract Map No. NT2005 -003 as proposed by the applicant; and f. Approve Development Agreement No. DA2008 -001. 4. The City Council public hearing was held on January 24, 2012, in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time, place and purpose of the meeting was given in accordance with the Newport Beach Municipal Code. Evidence, both written and oral, was presented to, and considered by, the, City Council at this hearing. SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. 1. An Initial Study and Mitigated Negative Declaration have been prepared in compliance with the California Environmental Quality Act (CEQA), the State CEQA Guidelines, and City Council Policy K -3. Tmplti 03108111. City Council Resolution No. 2012 -10 Pace 3 of 21 2. The Mitigated Negative Declaration, an Errata to the Mitigated Negative Declaration, and Mitigation Monitoring and Reporting Program were adopted by City Council on January 24, 2012, by adopting certain CEQA determinations containing within Resolution No. 2012 -9, which are hereby incorporated by reference. 3. The City Council finds that judicial challenges to the City's CEQA determinations and approvals of land use projects are costly and time consuming. In addition, project opponents often seek an award of attorneys' fees in such challenges. As project applicants are the primary beneficiaries of such approvals, it is appropriate that such applicants should bear the expense of defending against any such judicial challenge, and bear the responsibility for any costs, attorneys' fees, and damages which may be awarded to a successful challenger. SECTION 3. FINDINGS. 1. Tennis Courts Conversion. Finding: A. The conversion will not result in any adverse traffic impacts and is consistent with the General Plan. Facts in Support of Finding: A -1. The twenty -seven hotel units generate 15 A.M., 16 P.M. and 221 average daily trips based upon Institute of Traffic Engineers (ITE) Trip Generation Rates (7th Edition). This increase in traffic is entirely off -set by the traffic associated with the elimination of 17 tennis courts (22 A.M, 56 P.M and 658 average daily trips based upon ITE Trip Generation Rates). As a result, traffic generated by the proposed project would decrease by 389 daily trips, 3 A.M. trips, and 35 P.M. trips. A -2 The design regulations for the hotel rooms set forth in the Planned Community Development Plan will ensure that the proposed hotel use and the physical improvements for the hotel rooms will not lend themselves to conversion to higher traffic - generating uses. A -3. In order to accommodate the development of the proposed 27 hotel -unit development (bungalows), the 17 tennis courts shall be converted to 27 hotel units. The conversion of eliminated 17 tennis courts to 27 hotel units is consistent with the General Plan based upon the recognition that the General Plan provides for additional retail opportunities at Fashion Island, hotel rooms, and housing units within Newport Center. Additionally, the proposed conversion revitalizes an area wherein the General Plan encourages hotel development and the conversion does not create traffic impacts. 2. Site Development Review — The applicant proposes a Site Development Review to allow the redevelopment of the existing golf clubhouse and tennis club, pursuant to the Section 4.3 of the PCDP. Tmplt: 03/08/11 City Council Resolution No. 2012 -10 Pape 4 of 21 Finding' A. The Site Development Plan shall be in compliance with all other provisions of the Newport Beach Country Club Planned Community Development Plan. Facts in Support of Finding: A -1. A site development review application has been submitted in accordance to Section 4.0 of the draft PCDP. The portion of the application that applies to the Tennis Club site meets the intent specified in Section 20.52.080 (Site Development Review) of the Municipal Code as the portion of the site based upon the plans provides a coordinated and comprehensive project and will result in a superior built environment thereby creating an amenity for the community. The Golf Club site has been reserved for future consideration. Finding: B. The Site Development Plan shall be compatible with the character of the neighboring uses and surrounding sites and shall not be detrimental to the orderly and harmonious development of the surroundings and of the City. Facts in Support of Finding: B -1. The portion of the application that applies to the Tennis Club site includes Califomia Coastal architecture, landscaping components, circulation design, all other project components reflected in the site development review application for the development of the tennis club site are compatible with the character of the neighboring uses and surrounding sites. As a result, the proposed development for the tennis club site is not detrimental to the orderly and harmonious development of the surroundings and the City. The Golf Club site has been reserved for future consideration. Finding: C. The Site Development Plan shall be sited and designed to maximize of aesthetic quality of the Newport Beach Country Club Planned Community Development Plan as viewed from surrounding roadways and properties, with special consideration given to the mass and bulk of buildings and the streetscape on East Coast Highway. Facts in Support of Finding: C -1. The portion of the application that applies to the Tennis Club site provides one and two story building masses that are carefully sited and represent a comprehensive and coordinated plan. The size, mass and location of structures, the architectural detailing, landscaping, circulation, and signage maximize the aesthetic quality of the project. The proposed villas and bungalows are located over 300 feet from East Coast Highway Tmplt: 03/08111 City Council Resolution No. 2012 -10 P.aae 5 of 21 and adequate landscaping and open space separate the proposed development from East Coast Highway. The Golf Club site has been reserved for future consideration. Finding: D. Site plan and layout of buildings, parking areas, pedestrian and vehicular access ways, landscaping and other site features shall give proper consideration to functional aspects of site development. Facts in Support of Finding: D -1. The site plan proposed for the Tennis Club site and layout of its buildings, parking - areas, pedestrian and vehicular access ways, landscaping, and other site features maximize the functionality of the proposed uses, while avoiding conflicts between uses and activities. The villas, bungalows, tennis club, and each of their related amenities have been carefully designed and sited to function. cohesively not only with each other, but also with the existing adjacent golf club uses. The Golf Club site has been reserved for future consideration. 3. Vesting Tentative Tract Map. The applicant proposes a vesting tentative tract map on the Tennis Club site to create separate lots for the five (5) single -unit residential dwellings, twenty -seven (27) hotel units, tennis club facility, their common open space areas and a private street to support the propose uses. In accordance with Section 19.12.070 of the Newport Beach Municipal Code, and the following finding and facts in support of such findings are set forth: Findings A. That the proposed map and the design or improvements of the subdivision are consistent with the General Plan and any applicable specific plan, and with applicable provisions of the Subdivision Map Act and this Subdivision Code. Facts in Support of Finding: A -1. The project is consistent with the Parks and Recreation designation for the golf club site and Mixed Use Horizontal 3 /Park and Recreation (MU- H3 /PR) designation for the tennis club site. A -2. The Public Works Department has reviewed the proposed tentative map and finds it is consistent with the Newport Beach Subdivision Code (Title 19) and applicable requirements of the Subdivision Map Act. A -3. Conditions of approval have been included to ensure compliance with Title 19 and applicable requirements of the Subdivision Map Act. Tmplt 03/08111. City Council Resolution No. 2012 -10 Page 6 of 21 Finding: B. That the site is physically suitable for the type and density of development. Facts in Support of Finding: B -1. The existing Tennis Club site is entirely developed and does not support any environmental resources. The Tennis Club site is adequate in size to accommodate the proposed development. There are no topographic /geologic constraints. B -2. The subject site is located in Newport Center /Fashion Island and currently improved with a private golf course (Newport Beach Country Club) and a private tennis club (former, Balboa Bay Racquet Club). Given its location which is adjacent to the Fashion Island mixed -use of retail, office, and residential development and major road intersections, this site is ideal for the development of recreation and mixed use development as allowed by the General Plan Land Use Element. Findings C. That the design of the subdivision or the proposed improvements will not cause substantial environmental damage nor substantially and avoidably injure fish or wildlife or their habitat. However, notwithstanding the foregoing, the decision- making body may nevertheless approve such a subdivision if an environmental impact report was prepared for the project and a finding was made pursuant to Section 21081 of the California Environmental Quality Act that specific economic, social, or other considerations make infeasible the mitigation measures or project alternatives identified in the environmental impact report. Facts in Support of Finding: C -1. A Mitigated Negative Declaration has been prepared and supports a finding that no significant environmental impacts will result with proposed development of the Tennis Club site in accordance with the proposed subdivision map. Finding: D. That the design of the subdivision or the type of improvements is not likely to cause serious public health problems. Facts in Support of Finding: D -1. The proposed Tract Map is for the subdivision parcels in order to accommodate the development of the tennis club and courts, five (5) single -unit residential dwellings, and twenty -seven (27) hotel units on the Tennis Club site. All construction for the project will comply with all Building, Public Works, and Fire Codes, which are in place to prevent serious public health problems. Tmplt•. 03706111' City Council Resolution No. 2012 -10 Page 7 of 21 D -2. All mitigation measures will be implemented as outlined in the Mitigated Negative Declaration to ensure the protection of the public health. D -3. No evidence is known to exist that would indicate that the planned subdivision pattern will generate any serious public health problems. Finding: E. That the design of the subdivision or the type of improvements will not conflict with easements, acquired by the public at large, for access through or use of, property within the proposed subdivision. In this connection, the decision - making body may approve a map if it finds that alternate easements, for access or for use, will be provided and that these easements will be substantially equivalent to easements previously acquired by the public. This finding shall apply only to easements of record or to easements established by judgment of a court of competent jurisdiction and no authority is hereby granted to the City Council to determine that the public at large has acquired easements for access through or use of property within a subdivision. Facts in Support of Finding: E -1. No other public easements for access through or use of the property have been retained for use by the public at large. Finding: F. That, subject to the detailed provisions of Section 66474.4 of the Subdivision Map Act, if the land is subject to a contract entered into pursuant to the California Land Conservation Act of 1965 (Williamson Act), the resulting parcels following a subdivision of the land would not be too small to sustain their agricultural use or the subdivision will result in residential development incidental to the commercial agricultural use of the land. Facts in Support of Finding: F -1. The property is not subject to the Williamson Act since the subject property is not considered an agricultural preserve and is less than 100 acres. Finding: G. That, in the case of a `land project' as defined in Section 11000.5 of the California Business and Professions Code: (a) there is an adopted specific plan for the area to be included within the land project; and (b) the decision - making body finds that the proposed land project is consistent with the specific plan for the area. TmpIC 03/08111 City Council Resolution No. 2012 -10 Page 8 of 21 Facts in Support of Finding: G -1. The property is not a "land project" as defined in Section 11000.5 of the, California Business and Professions Code. G -2. The project is not located within a specific plan area. Finding: H. That solar access and passive heating and cooling design requirements have been satisfied in accordance with Sections 66473.1 and 66475.3 of the Subdivision Map Act. Facts in Support of Finding: H -1. The proposed Tract Map and improvements are subject to Title 24 of the California Building Code that requires new construction to meet minimum heating and cooling efficiency standards depending on location and climate. The Newport Beach Building Division enforces Title 24 compliance through the plan check and inspection process. Finding: I. That the subdivision is consistent with Section 66412.3 of the Subdivision Map Act and Section 65584 of the California Government Code regarding the City's share of the regional housing need and that it balances the housing needs of the region against the public service needs of the City's residents and available fiscal and environmental resources. Facts in Support of Finding: 1 -1. The proposed Tract Map does not involve the elimination of residential units and therefore will not affect the City's ability to meet it's share of housing needs, Finding: J. That the discharge of waste from the proposed subdivision into the existing sewer system will not result in a violation of existing requirements prescribed by the Regional Water Quality Control Board. Facts in Support of Finding: J -1. Waste discharge into the existing sewer system will be consistent with the existing commercial use of the property and does not violate Regional Water Quality Control Board (RWQCB) requirements. J -2. Sewer connections have been conditioned to be installed per City Standards, the applicable provisions of Chapter 14.24 (Sewer Connection, Permits), and the latest revision of the Uniform Plumbing Code. Tmpft 03108111.. City Council Resolution No. 2012 -10 Page 9 of 21 Finding: K. For subdivisions lying partly or wholly within the Coastal Zone, that the subdivision conforms with the certified Local Coastal Program and, where applicable, with public access and recreation policies of Chapter Three of the Coastal Act. Facts in Support of Finding: K -1. The subject property is located in the Coastal Zone but is not located in proximity to nor provides public access to any beaches, shoreline, coastal waters, tidelands, coastal parks or trails. The existing,recreational uses (golf course and tennis club) are private and the elimination of 17 tennis courts does not impact use of public recreational opportunities. SECTION 4. DECISION. 1. The City Council of the City of Newport Beach does hereby: a. Approve the conversion of eliminated 17 tennis courts to 27 hotel units and deny Transfer of Development Rights No. TD2010 -003; b. Approve Site Development Review No. SD2011 -002 for the improvements to the Tennis Club site only (twenty -seven (27) hotel units with a 2,170 square -foot concierge and guest meeting facility and a 7,490 square -foot spa /fitness center, five (5) single -unit residential dwellings, a 3,725 square -foot tennis clubhouse, and one lighted stadium - center tennis court); C. Approve Vesting Tentative Tract Map No. NT2005 -003 for the creation of separate lots for five (5) single -unit residential dwellings, twenty (27) hotel units, tennis club facility, lettered lots for common areas and private street; and d. Approve Limited Term Permit No. XP2011 -004 for the temporary modular buildings to be located on the Tennis Club site only, subject to the conditions set forth in Exhibit "A ", which is attached hereto and incorporated by reference. 2. This resolution shall take effect thirty (30) days after the effective date of Planned Community Development Plan by Ordinance No. 2012 -2. 3. This approval was based on the particulars of the individual case and does not in and of itself or in combination with other approvals in the vicinity or Citywide constitute a precedent for future approvals or decisions: 4. This resolution was approved, passed and adopted at a regular meeting of the City Council of the City of Newport Beach, held on the 24th day of January, 2012, by the following vote, to wit: Tmplt: 03106!11 MA ATTE��S/n1T:��� Leilani Brown, City Clerk Tmplt.. 03108/1.1 City Council Resolution No. 2012 -10 Paae 10 of 21 City Council Resolution No. 2012 -10 Paoe 11 of 21 EXHIBIT "A" CONDITIONS OF APPROVAL (Project - specific conditions are in italics) COMMUNITY DEVELOPMENT DEPARTMENT 1. Development shall be in substantial conformance with Vesting Tentative Tract Map No. NT2005 -003, Site Development Review No. SD2011 -002 for the improvements to the tennis club portion of the project site only, and Limited Term Permit No. XP2011 -004, stamped and dated with the date of this approval (Except as modified by applicable conditions of approval.) 2. Vesting Tentative Tract Map No. NT2005 -003 is approved for the development located on the Tennis Club site which consists of the subdivision of five (5) single -unit residential dwellings, twenty -seven (27) hotel units and related amenities, the tennis club facility, their common open space areas and a private street. 3. Vesting Tentative Tract Map No. NT2005 -003 shall expire in accordance with the Subdivision Code, unless an extension is otherwise granted consistent with the Subdivision Code and Subdivision Map Act. The expiration date shall be extended for the unexpired term of Development Agreement No. DA2008 -001. 4. Site Development Review No. SD2011 -002 is approved for the development of a. A 3,725 square -foot tennis clubhouse and one lighted stadium - center tennis cou rt. b. Twenty-seven (27) hotel units with a 2,170 square -foot concierge and guest meeting facility, and a 7,490 square -foot spaifitness center. C. Five (5) single -unit residential dwellings. d. The Golf Club site has been reserved for future consideration. The plans shall be revised to remove all representations of future development on the Golf Club site. 5. Limited Term Permit No. XP2011 -004 is limited to the Tennis Club site and approved for the use of- a. Two (2) temporary modular buildings to accommodate on- going tennis club operation during the 18 -month construction of new tennis clubhouse. The modular buildings shall be located on the existing tennis courts, shall not interfere with the construction activities or parking, and shall be removed from the Tennis Club site upon completion /occupancy of the new clubhouse. Tmplt 03/08/11 City Council Resolution No. 2012 -10 Page 12 of 21 6. Site Development Review No. SD2011 -002 and Limited Term Permit No. XP2011 -004 shall expire in accordance with the Zoning Ordinance, unless an extension is otherwise granted consistent with the Zoning Ordinance. The expiration date shall be extended for the unexpired term of Development Agreement No. DA2008 -001. 7. Any substantial change to the approved plans, shall require an amendment to Site Development Review No. SD2011 -002, Limited Term Permit No. XP2011 -004 and /or Vesting Tentative Tract Map No. NT2005 -003 or the processing of new permits. 8. A minimum of 28 parking spaces shall be provided and maintained for The Tennis Club (tennis courts and clubhouse) as provided on the approved plans. 9. A minimum of two (2) enclosed parking spaces shall be provided and maintained for Was #A, B, and E and a minimum bf three (3) enclosed parking spaces shall be provided and maintained for Villas #C & D, as provided on the approved plans. Additionally, each of The Villas (single -unit residential dwellings) shall be provided with an open guest parking space which can be located on the private driveway. 10. A minimum of 34 parking spaces shall be provided and maintained for The Bungalows (27 -unit hotel development) as provided on the approved plans. 11. The project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval. 12. The applicant shall comply with all federal, state, and local laws. Material violation of any of those laws in connection with the use may be cause for revocation of this Use Permit. 13. Should this business or property be sold or otherwise come under different ownership, any future owners or assignees shall be notified in writing of the conditions of this approval by the current owner or leasing company. 14. This Site Development Review and Limited Term Permit may be modified or revoked by the City Council or Planning Commission should they determine that the proposed development, uses, and/ or conditions under which it is being operated or maintained is detrimental to the public health, welfare or materially injurious to property or improvements in the vicinity or if the property is operated or maintained so as to constitute a public nuisance. 15. Prior to the issuance of building permits, the applicant shall submit a landscape and irrigation plan prepared by a licensed landscape architect. These plans shall incorporate drought tolerant plantings and water efficient irrigation practices, and the plans shall be approved by the Planning Division and the Municipal Operations Department. All planting areas shall be provided with a permanent underground .automatic sprinkler irrigation system of a design suitable for the type and arrangement of the plant materials selected. The irrigation system shall be adjustable based upon Tmpit: 03108/11 City Council Resolution No. 2012 -10 Paqe 13 of 21 either a signal from a satellite or an on -site moisture - sensor. Planting areas adjacent to vehicular activity shall be protected by a. continuous concrete curb or similar permanent barrier. Landscaping shall be located so as not to impede vehicular sight distance to the satisfaction of the Traffic Engineer. 16. All landscape materials and landscaped areas shall be installed and maintained in accordance with the approved landscape plan. All landscaped areas shall be maintained in a healthy and growing condition and shall receive regular pruning, fertilizing, mowing and trimming. All landscaped areas shall be kept free of weeds and debris. All irrigation systems shall be kept operable, including adjustments, replacements, repairs, and cleaning as part of regular maintenance. 17. Prior to the final of issuance of a certificate of occupancy, the applicant shall schedule an inspection by the Planning Division to confirm that all landscaping was installed in accordance with the approved plan. 18. Reclaimed water shall be used for all landscape areas. 19. Water leaving the project site due to over - irrigation of landscape shall be minimized to the maximum extent feasible. 20. Watering of landscape areas shall be done during the early morning or evening hours (between 4:00 p.m. and 9:00 a.m.). 21. Water shall not be used to clean paved surfaces such as sidewalks, driveways, parking areas, etc. except to alleviate immediate safety or sanitation hazards. 22. Prior to issuance of any permit for development, approval from the California Coastal Commission shall be required. 23. All noise generated by the proposed use shall comply with the provisions of Chapter 10.26 and other applicable noise control requirements of the Newport Beach Municipal Code. The maximum noise shall be limited to no more than depicted below for the specified time periods unless the ambient noise level is higher: 24. Construction activities shall comply with Section 10.28.040 of the Newport Beach Municipal Code, which restricts hours of noise - generating construction activities to between the hours of 7:00 a.m. and 6:30 p.m., Monday through Friday and 8:00 a.m. Tmplt: 03108/11 Between the hours of 7:OOAM and 10:OOPM Between the hours of 10:OOPM and 7:OOAM Location Interior Exterior Interior Exterior Residential Property 45dBA 55dBA 140dBA 50dBA Residential Property located within 100 feet of a commercial property 45dBA 6OdBA 45dBA 50dBA Mixed Use Property 45dBA 6OdBA 45dBA 5OdBA Commercial Property N/A 65dBA N/A 60clBA 24. Construction activities shall comply with Section 10.28.040 of the Newport Beach Municipal Code, which restricts hours of noise - generating construction activities to between the hours of 7:00 a.m. and 6:30 p.m., Monday through Friday and 8:00 a.m. Tmplt: 03108/11 City Council Resolution No, 2012 -10 Page 14 of 21 and 6:00 p.m. on Saturday. Noise- generating construction activities are not permitted outside of these hours or on Sundays or Holidays. 25. The applicant shall ensure that the trash dumpsters and /or receptacles are maintained to control odors. This may include the provision of either fully self- contained dumpsters or periodic steam cleaning of the dumpsters, if deemed necessary by the Community Development Department. Cleaning and maintenance of trash dumpsters shall be done in compliance with the provisions of Title 14, including all future amendments (including Water Quality related requirements), 26. Storage outside of buildings or within the parking lot of the property shall be prohibited, with the exception of the required trash container enclosure. 27. A Special Events Permit is required for any event or promotional activity outside the normal operational characteristics of the approved use, as conditioned, or that would attract large crowds, involve the sale of alcoholic beverages, include any form of on- site media broadcast, or any other activities as specified in the Newport Beach Municipal Code to require such permits. 28. All proposed signs shall be in conformance with the provision of the Newport Beach Country Club Planned Community Development Plan and Chapter 20.42 of the Newport Beach Municipal Code and shall be reviewed and approved by the City Traffic Engineer if located adjacent to the vehicular ingress and egress. 29. The final location of the signs shall be reviewed by the City Traffic Engineer and shall conform to City Standard 110 -L to ensure that adequate vehicular sight distance is provided. 30. Lighting shall be in compliance with applicable standards of the Newport Beach Country Club Planned Community Development Plan and Section 20,30.070 of the Newport Beach Municipal Code. Exterior on -site lighting shall be shielded and confined within site boundaries. No direct rays or glare are permitted to shine onto public streets or adjacent sites or create a public nuisance. "Walpak" and up- lighting type fixtures are not permitted. Parking area lighting shall have zero cut -off fixtures. 31. The entire development shall not be excessively illuminated based on the outdoor lighting standards contained within Section 20.30.070 of the Newport Beach Municipal Code, or, if in the opinion of the Community Development Director, the illumination creates an unacceptable negative impact on surrounding land uses or environmental resources. The Community Development Director may order the dimming of light sources or other remediation upon finding that the site is excessively illuminated. 32. Prior to the issuance of a building permit, the applicant shall prepare photometric study in conjunction with a final lighting plan for approval by the Planning Division. The survey shall show that lighting values are I" or less at all property lines. 33 Tennis Club site the applicant shall schedule an evening inspection by the Code Tmplt 03/08/11 City Council Resolution No. 2012 -10 Page 15 of 21 Enforcement Division to confirm control of all lighting sources. 34. Kitchen exhaust fans for the clubhouses shall be installed /maintained in accordance with the Uniform Mechanical Code and with pollution control units to filter and control odors. 35. The construction and equipment staging area for each phase of the development shall be located in the least visually prominent area on the site and shall be properly maintained and /or screened to minimize potential unsightly conditions. 36. A screen and security fence that is a minimum of six feet high shall be placed around the construction site during construction for each phase of the development. 37. Construction equipment and materials shall be properly stored on the site when not in use for each phase of the development. 38. Prior to the issuance of any building permit, the applicant shall pay any unpaid administrative costs associated with the processing of this application to the Planning Division. 39. Prior to the issuance of any building, the applicant shall pay all applicable development fees (i.e. school, in -lieu park, fair share, and transportation corridor agency), unless otherwise addressed separately in the Development Agreement. 40. To the fullest extent permitted by law, applicant shall indemnify, defend and hold harmless City, its City Council, its boards and commissions, officials, officers, employees, and agents from and against any and all claims, demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever which may arise from or in any manner relate (directly or indirectly) to City's approval of the Newport Beach Country Club development including, but not limited to Planned Community Development Plan No. PC2005 -002, Vesting Tentative Tract Map No. NT2005 -003, Transfer of Development Rights No. TD2010 -003, Development Agreement No. DA2008 -001, Limited Term Permit No. XP2011 -004, Mitigated Negative Declaration No. ND2010 -008, and Site Development Permit No. SD2011 -002. This indemnification shall include, but not be limited to, damages awarded against the City, if any, costs of suit, attorneys' fees, and other expenses incurred in connection with such claim, action, causes of action, suit or proceeding whether incurred by applicant, City, and/or the parties initiating or bringing such proceeding. The applicant shall indemnify the City for all of City's costs, attorneys' fees, and damages which City incurs in enforcing, the indemnification provisions set forth in this condition. The applicant shall pay to the City upon demand any amount owed to the City pursuant to the indemnification requirements prescribed in this condition. 41. The applicant is required to obtain all applicable permits from the City's Building Division and Fire Department. The construction plans must comply with the most recent, City - adopted version of the California Building Code. The construction plans must meet all Tmplt 03!08111 City Council Resolution No. 20.12 -10 Page 16 of 21 applicable State Disabilities Access requirements, Approval from the Orange County Health Department is required prior to the issuance of a building permit. 42. Prior to the issuance of grading permits for development, a Storm Water Pollution Prevention Plan (SWPPP) and Notice of Intent (NO[) to comply with the General Permit for Construction Activities shall be prepared, submitted to the State Water Quality Control Board for approval and made part of the construction program. The project applicant will provide the City with a copy of the NOI and their application check as proof of filing with the State Water Quality Control Board. This plan will detail measures and practices that will be in effect during construction to minimize the project's impact on water quality. 43. Prior to issuance of grading permits for development, the applicant shall prepare and submit a Water Quality Management Plan (WQMP) for the proposed project, subject to the approval of the Building Division and Code and Water Quality Enforcement Division. The WQMP shall provide appropriate Best Management Practices (BMPs) to ensure that no violations of water quality standards or waste discharge requirements occur. 44. A list of "good house - keeping" practices will be incorporated into the long -term post - construction operation of the site to minimize the likelihood that pollutants will be used, stored or spilled on the site that could impair water quality. These may include frequent parking area vacuum truck sweeping, removal of wastes or spills, limited use of harmful fertilizers or pesticides, and the diversion of storm water away from potential sources of pollution (e.g., trash receptacles and parking structures). The Stage 2 WQMP shall list and describe all structural and non- structural BMPs. In addition, the WQMP must also identify the entity responsible for the long -term inspection, maintenance, and funding for all structural (and if applicable Treatment Control) BMPs. 45. The applicant shall comply with SCAQMD Rule 403 requirements as follows: Land Clearing /Earth - Moving a. Exposed pits (i.e., gravel, soil, dirt) with five percent or greater silt content shall be watered twice daily, enclosed, covered, or treated with non -toxic soil stabilizers according to manufacturers' specifications. b. All other active sites shall be watered twice daily. C. All grading activities shall cease during second stage smog alerts and periods of high winds (i.e., greater than 25 mph) if soil is being transported to off -site locations and cannot be controlled by watering. d. All trucks hauling dirt, sand, soil, or other loose materials off -site shall be covered or wetted or shall maintain at least two feet of freeboard (i.e., minimum vertical distance between the top of the load and the top of the trailer). Tmpit: 03(08111: City Council Resolution No. 2012 -10 Page 17 of 21 e. Portions of the construction site to remain inactive longer than a period of three months shall be seeded and watered until grass cover is grown or otherwise stabilized in a manner acceptable to the City. f. All vehicles on the construction site shall travel at speeds less than 15 mph. g. All diesel - powered vehicles and equipment shall be properly operated and maintained. h. All diesel - powered vehicles and gasoline - powered equipment shall be turned off when not in use for more than five minutes. j. The construction contractor shall utilize electric or natural gas - powered equipment instead of gasoline or diesel - powered engines, where feasible.. Paved Roads k. All construction roads internal to the construction site that have a traffic volume of more than 50 daily trips by construction equipment, or 150 total daily trips for all vehicles, shall be surfaced with base material or decomposed granite, or shall be paved. Streets shall be swept hourly if visible soil material has been carried onto adjacent public paved roads. M. Construction equipment shall be visually inspected prior to leaving the site and loose dirt shall be washed off with wheel washers as necessary. Unpaved Staging Areas or Roads n. Water or non -toxic soil stabilizers shall be applied, according to manufacturers' specifications, as needed to reduce off -site transport of fugitive dust from all unpaved staging areas and unpaved road surfaces. FIRE DEPARTMENT 46. Automatic fire sprinklers shall be required for all new construction that exceeds 5,000 square feet in size, is located more than 150 feet from an approved fire access road, and /or based on occupancy classification. The sprinkler system shall be monitored by a UL certified alarm service company. 47. All buildings may require a fire alarm system depending upon occupancy classification 48. Fire hydrant(s) shall be provided every 300 feet along fire access road. The number and location of the fire hydrant shall be determined by the Fire Department. Tmpit: 03/08/11 City Council Resolution No. 2012 -10 Pace 18 of 21 49. Fire Department turnarounds shall have a minimum diameter of 80 feet with no parking allowed. 50. All elevators shall be gurney accommodating. 51. The use or storage of portable propane heaters is prohibited. Heaters for future outdoor areas shall be fixed and plumbed with natural gas. PUBLIC WORKS DEPARTMENT 52. The Final Tract Map shall be legible, scaled, dimensioned, and complete with all necessary pertinent information and details such as easement limits and descriptions; annotated lot lines, centerlines, and boundary lines; signature certificates; curve and line tables; etc. 53. The Final Tract Map shall be prepared on the California coordinate system (NAD88). Prior to Map recordation, the surveyor /engineer preparing the Map shall submit to the County Surveyor and the City of Newport Beach a digital - graphic file of said Map in a manner described in the Orange County Subdivision Code and Orange County Subdivision Manual. The Final Tract Map to be submitted to the City of Newport Beach shall comply with the City's CADD Standards. Scanned images will not be accepted. 54. Prior to recordation, the Final Map boundary shall be tied onto the Horizontal Control System established by the County Surveyor in a manner described in Sections 7 -9- 330 and 7 -9 -337 of the Orange County Subdivision. Code and Orange County Subdivision Manual, Subarticle 18. Monuments (one inch iron pipe with tag) shall be set On Each Lot Corner unless otherwise approved by the City Engineer. Monuments shall be protected in place if installed prior to completion of construction project. 55. A hydrology and hydraulic study and a master plan of water, sewer and storm drain facilities for the on -site improvements shall be prepared by the applicant and approved by the Public Works Department prior to Final Tract Map recordation. 56. Easements for public emergency and security ingress /egress, weekly refuse service, and public utility purposes on all private streets shall be dedicated to the City. 57. No structures shall be constructed within the limits of any utility easements. 58. All easements shall be recorded as a part of the Final Tract Map. 59. All applicable fees shall be paid prior to the City approval of the Final Tract Map. 60. Construction surety in a form acceptable to the City, guaranteeing the completion of the various required public improvements, shall be submitted to the Public Works Department prior to the City approval of the Final Tract Map. Tmplt. 03/08111 City Council Resolution No. 2012 -10 Page 19 of 21 61. Street, drainage and utility improvements shall be submitted on City standard improvement plan formats. All plan sheets shall be sealed and signed by the California licensed professionals responsible for the designs shown on the Plans. 62. All improvements shall be designed and constructed in accordance with the current edition of the City Design Criteria, Standard Special Provisions, and Standard Drawings: 63. All storm drain and sanitary sewer mains shall be installed with MacWrap. 64. All runoff discharges shall comply with the City's water quality and on -site non - storm runoff retention requirements. 65. New concrete sidewalks, curbs, gutters, curb disabled access ramps, roadway pavement, traffic detector loops, traffic signal devices, and street trees shall be installed along the development's Coast Highway frontage. 66. Public improvements may be required along the development's Granville Drive frontage upon building permit plan check submittal. 67. All on -site drainage, sanitary sewer, water and electrical systems shall be privately owned, operated, and maintained. 68. All curb return radii shall be 5 -feet (5') minimum. 69. Each dwelling unit or bungalow building shall be served with an individual water service and sewer lateral connection. 70. All overhead utilities serving the entire proposed development shall be made underground. 71. ADA compliant curb ramps shall be installed within the interior parking area. 72. The intersection of the public streets, internal roadways, and drive aisle shall be designed to provide adequate sight distance per City of Newport Beach Standard Drawing STD - 110 -L. Slopes, landscaping, walls, signs, and other obstructions shall be considered in the sight distance requirements. Landscaping within the sight lines (sight cone) shall not exceed 24- inches in height and the monument identification sign must be located outside the line of sight cone. The sight distance may be modified at non - critical locations, subject to approval by the Traffic Engineer. 73. Any damage to public improvements within the public right -of -way attributable to on- site development may require additional reconstruction within the public right -of -way at the discretion of the Public Works Inspector. 74. The parking lot and vehicular circulation system shall be subject to further review and approval by the City Traffic Engineer. Parking layout shall be per City Standard STD Tmplt: 03108/11 City Council Resolution No. 2012 40 Page 20 of 21 805 -L -A and STD 805 -L -B. Parking layout shall be full dimensioned. On- street parking spaces shall be 8 feet wide by 22 feet long. Drive aisles to parking areas shall be 26 feet wide minimum. The one -way drive aisle adjacent to The Bungalow's concierge office and guest meeting building shall be 14 feet wide minimum with no parking, otherwise the drive aisle shall be widen to accommodate parking. 75. Cul -de -sacs shall comply with City Standard STD-1 02-L and STD -103 -1 and shall have a minimum diameter of 80 feet curb to curb. MITIGATION MEASURES 76. The applicant shall comply with all mitigation measures and standard conditions contained within the approved Mitigation Monitoring and Reporting Program of the adopted Mitigated Negative Declaration (Exhibit "A ") for the project. Tmplt: 03/08/11 STATE OF CALIFORNIA } COUNTY OF ORANGE } as. CITY OF NEWPORT BEACH } I, Leilani I. Brown, City Clerk of the City of Newport Beach, California, do hereby certify that the whole number of members of the City Council is seven; that the foregoing resolution, being Resolution No. 201.2 -10 was duly and regularly introduced before and adopted by the City Council of said City at a regular meeting of said Council., duly and regularly held on the 24�h day of January, 2012, and that the same was so passed and adopted by the following vote, to wit: Ayes: Hill, Rosansky, Curry, Selich, Henn, Daigle Noes: Mayor Gardner Absent: None IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said City this 25th day of January, 2012. ashk 1 I(/pw' City Clerk Newport Beach, California (Seal)