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HomeMy WebLinkAbout08 - Newport Beach Country Club, Golf Realty Fund, PA2005-140�E�waoRT CITY OF City Council Staff Report 8 Agenda Item No. February 28, 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: Kimberly Brandt, Director APPROVED: TITLE: NEWPORT BEACH COUNTRY CLUB (PA2005 -140) Golf Realty Fund 1600 & 1602 East Coast Highway ABSTRACT: Continuance of ordinances related to the Newport Beach Country Club Planned Community Plan and Development Agreement, and a request to waive City Council Policy A10 to reconsider the City Council's previous action on the Site Development Plan. RECOMMENDATIONS: 1) Continue Ordinance No. 2012 -2 approving Planned Community Development Plan No. PC2005 -002 to March 13, 2012. 2) Continue Ordinance No. 2012 -3 approving Development Agreement No. DA2008 -001 to March 13, 2012. 3) Waive City Council Policy A10 (Attachment CC1) regarding "Voting Procedures - Reconsideration" and reconsider Resolution No. 2012 -10 approving Site Development Review No. SD2011 -002 on March 13, 2012. DISCUSSION: On February 14, 2012, the City Council granted the applicant's request for a two -week continuance regarding the second reading of the ordinances approving the Planned Community Development Plan and Development Agreement for the Newport Beach Country Club located at 1600 and 1602 East Coast Highway. 1 Newport Beach Country Club -Golf Realty Fund February 28, 2012 Page 2 Subsequent to Council's action, the applicant has presented to staff a proposal that includes the following requests: 1. Modify the Development Agreement to apply to only the "tennis club" portion of the site; In order for Council to consider this request, staff recommends a continuance to March 13, 2012, to draft the necessary amendment to the Development Agreement. Should City Council agree with the amendment, a new first reading ordinance adopting the Development Agreement will be required. 2. Accept the applicant's proposed site plan for the "golf club" portion of the site as an alternative (Alternative Site Plan), but the Alternative Site Plan would not be "vested" in the applicant's development agreement. This request requires the City Council to take action to reconsider its approval of the Site Development Plan on January 24, 2012, since any alternative site plan approval should be considered as part of that application. City Council Policy A10 stipulates that any motion to reconsider a previous vote should occur either at the meeting of the action or at the next following meeting. It should be noted that the motion to reconsider can only be made by one of the Council Members who voted with the prevailing side. This application was approved on a 6 -1 vote with Mayor Gardner voting no. In this instance, the motion for reconsideration did not occur either on January 24, 2012, or on February 14, 2012. Staff notes that the Planned Community Development Plan and Development Agreement are necessary and integral to the Site Development Plan so that it may become final and in effect. Staff believes that all three project components: the Planned Community Development Plan, Site Development Plan, and Development Agreement should be considered by the City Council on March 13, 2012, to ensure consistency among the three actions. 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). Sub itted by Kimberly Brandt, A�CP Community Deve pment Director Attachment: CC1 City Council Policy A10 2 C,IIy C,C�)�If1Cl� 3 11 A -10 PROCEDURAL RULES FOR THE CONDUCT OF CITY COUNCIL MEETINGS RULES OF ORDER FOR CITY COUNCIL PROCEEDINGS A. Rules of Order. Except as provided in this Policy, the City Charter, other rules or practices followed by the City Council, or applicable provisions of State law, the procedures of the Council shall be guided by the latest revised edition of Robert's Rules of Order. 1 Failure to Observe Rules of Order. Rules adopted to expedite the transaction of the business of the Council hi an orderly fashion are deemed to be procedural ornly and the failure to strictly observe such rules shall not affect the jurisdiction of the Council or invalidate any action taken at a meeting that is otherwise held in conformity with law. B. Public Input. Members of the general public have the right to address the City Council on any item on the agenda, as well as any item wider the subject jurisdiction of the body. 1. Agendized Matters. Speakers on agenda items shall limit their comments to five (5) minutes and shall step down from the lectern immediately after their time has elapsed unless the presiding officer has granted the speaker's request for additional time. The presiding officer may grant the speaker additional time if the speaker is addressing the Council on a complicated or complex matter or if the speaker represents a group of individuals whose individual testimony would exceed the total time allotted to the speaker. Speakers shall limit their comments to matters relevant to the item on the agenda. 2. Non- agendized Matters and Consent Calendar. The agenda shall contain a public continent section during which any member of the public may address the Council on any non - agenda item generally considered to be a muunicipal affair mid within the subject matter jurisdiction of the Council. To ensure that all members of the public have an opportunity to address the Council during public continents, each speaker shall be limited to three (3) minutes and shall immediately step down from the lectern upon expiration of the allotted time uuiless the presiding officer has granted the speaker's request for additional time. Staff and /or members of the City Council may briefly respond to each speaker who testifies during public continents. Responses shall be limited to the specific issue(s) raised by the 1 0 A -10 speaker and shall generally be limited to information helpful to the public's understanding of the issue(s) raised by the speaker. The City Council shall not take action relative to any public comment unless an action would be authorized by Section 54954.2(b) of the Government Code. OFFICERS A. Presiding Officer. The Mayor shall be the Presiding Officer at all meetings of the City Council. In the absence of the Mayor, or at the Mayor's request, the Mayor Pro Tempore shall preside. In the absence of the Mayor and Mayor Pro Tempore, the City Clerk shall call the Council to order, whereupon a temporary Presiding Officer shall be elected by the Council Members present to serve until the arrival of the Mayor or Mayor Pro Tennpore. 1. Powers and Duties of Presiding Officer. a. Participation. The Presiding Officer may move, debate and vote from the Chair. b. Question to be Stated. The Presiding Officer shall state (or armounce) the motion prior to opening any subject to debate (Refer to CONDUCT OF BUSINESS - Section A.2.c.). The Presiding Officer or such member of the City staff as he or she may designate shall verbally restate each question immediately prior to calling for the vote. C. Signing of Docunnents. The Presiding Officer shall sign all ordinances, resolutions, contracts and other documents necessitating his or her signature which were adopted in his or her presence, unless lie or she is unavailable, in which case the signature of an alternate Presiding Officer may be used. d. Sworn Testimony. The Presiding Officer may require any person addressing the City Council to be sworn as a witness and to testify under oath, and the Presiding Officer shall so require if directed to do so by a majority vote of the Council. B. Parliamentarian. The City Clerk shall be designated as Parliamentarian for the City Council proceedings to advise the Presiding Officer. Within the limitations 2 NO A -10 imposed by Robert's Rules of Order, the Presiding Officer has the authority to determine proper parliamentary procedure. CONDUCT OF BUSINESS A. Rules of Debate. 1. Getting the Floor. Every Council Member desiring to speak shall first address the Chair, gain recognition by the Presiding Officer, and shall confine himself or herself to the question under debate, avoiding personalities vnd indecorous language. 2. Opening Debate. The following three steps are necessary prior to opening debate on any subject except as noted. a. Motions. Before any subject is open to debate, a motion must be made. The motion is a proposal in that it sets forth something the person making the motion favors. b. Motions - Second Required. A motion by any member of the Council, including the Presiding Officer, may not be open to debate without a second. Such action does not mean that the seconder endorses the motion, but only that he /she wishes to have the motion considered. C. Stating of Motion. The motion must be stated (or armou nced) by the Presiding Officer prior to opening the subject to debate. Exceptions: i. Oral Presentations. Oral presentations may be made by staff, or someone designated by staff, prior to a motion being made and debated upon. ii. Questions to Staff. At any time during the proceedings, every Council Member desiring to question the City staff shall, after recognition by the Presiding Officer, address the questions to the City Manager, the City Clerk or the City Attorney, who shall be entitled either to answer the inquiry 3 7 A -10 himself or herself or to designate a member of his /her staff for that purpose. iii. Public Hearings. For matters that are the subject of a public hearing, the procedures for opening debate are suspended until after the public hearing is closed. 3. Addressing the Council a. Manner of Addressing Council. Each person desiring to address the Council shall step up to the microphone, may state his /her name and address for the record, state the subject he /she wishes to discuss, may state whom he /she is representing if he /she represents an organization or other persons and, uunless further time is granted by the Mayor, and shall limit his /her remarks to three (3) minutes. All remarks shall be addressed to the Council as a whole and not to any member thereof or to the audience. No question shall be asked a Council Member or a member of the City staff without the permission of the Presiding Officer. Exceptions The City Council may preside over administrative hearings or designate a hewing officer to take evidence and submit proposed findings and recommendations. hi the event the City Council conducts any hearing that is quasi judicial or administrative in nature, the following procedure shall be followed: i. The presiding officer may ask the City Manager to suunmarize the nature of the hearing and the issues to be resolved by the City Council. ii. The presiding officer shall invite the person or entity that filed the application for permit, license or other entitlement (applicant) to make a presentation. The applicant shall have a reasonable aulou nt of tine to present evidence or testimony relevant to any issue before the City Council. The City Council, City Manager or City Attorney may ask questions of the applicant or any winless presented by the applicant. 4 2 A -10 W. In the event the Matter is pending before the City Council by virtue of an appeal, the presiding officer shall invite the appellant to make a presentation. The appellant shall have a reasonable anouunt of time to present evidence or testimony relevant to any issue before the City Cotmcil. The City Council, City Manager or City Attorney may ask questions of the appellant or any witness presented by the appellant. iv. Upon conclusion of the presentations by the applicant and the appellant, if any, the presiding officer shall invite testimony from members of the audience. V. Prior to closing the hearing, the presiding officer shall give the applicant the opportunity to continent on the evidence with the right to continent limited to no more than five (5) miruutes. vi. The presiding officer shall have the discretion to require the applicant, the appellant and their respective witnesses, to present testimony under oath. vii. The presiding officer shall have the right to exclude testimony or evidence which is not relevant to any issue before the City Council. viii. Hearsay evidence shall be adnissible but shall not be sufficient to sustain a decision or finding unnless corroborated by testimony or evidence that would be admissible in a Court of law. The presiding officer may ask the City Attorney for guidance relative to evidentiary rulings unless the City Attorney is presenting evidence on behalf of a City department or City employee, or is otherwise representing any person or entity adverse to the applicant or appellant.. b. Spokesman for Group of Persons. In order to expedite matters and to avoid repetitious presentations; whenever any group of persons wishes to address the Council on the same subject matter, it shall be proper for the Presiding Officer to request that a spokesman be chosen by the group to address the Council and, in case additional natters are to be presented by any other member of said group, to limit the number of such persons addressing the Council, subject to 5 9 A -10 the right of all members of the public to speak on any item on the agenda pursuant to the Brown Act. 4. After Motion. After a motion has been made or a public hearing has been closed, no member of the public shall address the Council from the audience on the matter under consideration without first securirng permission to do so by a majority vote of the City Council. 5. Interruptions. A Council Member, once recognized, shall not be interrupted when speaking unless called to order by tie Presiding Officer, unless a point of order or personal privilege is raised by another Council Member, or unless the speaker chooses to yield to a question by another Council Member. If a Council Member, while speaking, is called to order, lie or she shall cease speaking until the question of order is determined and, if determined to be in order, be or she may proceed. Members of the City staff after recognition by the Presiding Officer shall hold the floor until completion of their remarks or until recognition is withdrawn by the Presiding Officer. 6. Points of Order. The Presiding Officer shall determine all points of order subject to the right of any Council Member to appeal to the Couuncil. If an appeal is taken, the question shall be "Shall the decision of the Presiding Officer be sustained ?" A nnajority vote shall conclusively determine such question of order. 7. Point of Personal Privilege. The right of a Council Member to address the Council on a question of personal privilege shall be limited to cases in which the integrity, character or motives are questioned or where the welfare of the Council is concerned. A Council Member raising a point of personal privilege may interrupt another Council Member who has the floor only if the Presiding Officer recognnizes the privilege. 8. Privilege of Closing Debate. The Council Member moving the adoption of an ordinance, resolution or motion shall have the privilege of closing debate. 9. Limitation of Debate. No Council Member shall be allowed to speak more than once upon any particular subject until every other Council Member desiring to do so shall have spoken. 6 10 A -10 10. Protest Against Council Action. Any Council Member shall have the right to have the reasons for his or her dissent from, or his or her protest against, any action of the Council entered in the minutes. Such dissent or protest to be entered into flee minutes shall be Made in the following manner: "I would like the minutes to show that I am opposed to this action for the following reasons....." 11. Remarks of Council Member and Synopsis of Debate. A Council Member may request through die Presiding Officer the privilege of having an abstract of his or her statement on any subject under consideration by the Council entered inn the nninrtes. If the Council consents thereto, such statement shall be entered in the minutes. B. Rules of Decorum. 1. Council Members. While the Council is in session, the members must preserve order and decorum. Each Comlcil Member shall conduct himself or herself with decorum and shall neither, by conversation or otherwise, delay nor interrupt the proceedings or the peace of the Council, nor disturb any member while speaking or refuse to obey the orders of the Presiding Officer. 2. Decorum of Speakers. Speakers shall not engage in willful conduct which interrupts the meeting or interferes with the orderly conduct of the meeting. Any speaker engaging in such conduct shall be called to order by die presiding officer anti, if the conduct continues, the presiding officer nnay order the speaker barred from speaking and /or attending the meeting. No person shall be declared out of order, prevented front speaking or barred from attendance at any meeting because of any disagreement with the speaker's position or view on any matter, because of the speaker's identity or because of any disagreement with the content of relevant testimony. 3. Members of the Audience. No member of the audience shall willfully interrupt the orderly conduct at the meeting. The presiding officer shall direct the removal of any individual whose willful interruption renders infeasible the orderly conduct of the meeting. In the event the removal of the individual or individuals willfully interrupting the meeting does not restore order, the presiding officer may order the meeting room cleared and continue in session. Media representatives shall be allowed to remain 7 i1 A -10 at the meeting except those representatives of whose willful conduct interrupted the meeting. 4. Persons Authorized to be Within Rail. No person except members of the Council and the City staff shall be permitted within the rail without the consent of the Presiding Officer. 5. Enforcement of Decorum. The Chief of Police, or such member or nhenhbers of the Police Department as the may designate, shall be Sergeant - at -Arms of the City Council and shall carry out all orders given by the Presiding Officer for the purpose of nhaiuhtaining order and decorunn at the Council meetings. Any Council Member may move to requh•e the Presiding Officer to enforce the rides upon affirmative vote of a majority of tie Council. VOTING PROCEDURES A. Voting Procedure. Any vote of the Council, including a roll call vote, may be registered by tie members by answering "Yes" for an affirmative vote, "Abstain' for an abstention, or "No" for a negative vote upon the member's name being called by the City Clerk, or by pressing a switch to cause a green light to show for an affirmative vote, the yellow light to show an abstention, or a red light to show for a negative vote, upon a vote being called for by the Presiding Officer. Following the vote, the City Clerk shall audibly announce the results of the vote by name indicating whether the question carried or was defeated. The same shall be recorded in the minutes as the vote. The Presiding Officer in his or her discretion may publicly explain the effect of a vote for the audience, or he or she may direct a member of the City Staff to do so, before proceeding to the next item of business. B. Disqualification for Conflict of Interest. Any Council Member who is disqualified from voting on a particular matter by reason of a conflict of interest shall publicly state or have the Presiding Officer state the nature of such disqualification in open meeting. Where no clearly disqualifying conflict of interest appears, the matter of disqualification may, at the request of tie Council Member affected, be decided by the other Council Members. A Council Member who is disqualified by reason of a conflict of interest in any matter shall not remain in his or her seat during the debate and vote on such matter, but shall request and be given the permission of the Presiding Officer to step down from the Council table. A Council Member stating such disqualification shall not be 8 12 A -10 counted as a part of a quorum and shall be considered absent for the purpose of determining the outcome of any vote on such matter. C. Failure to Vote. Every Council Member should vote unless disqualified by reason of a conflict of interest. The vote of Council Member who abstains absent a disqualifying conflict of interest shall be counted with the majority vote of the quorum on the question voted upon. D. Tie Vote. Tie votes shall be lost motions and may be reconsidered. E. Changing Vote. A member may change his vote only if he makes a tunely request to do so immediately followbng the arumuncement of the vote by the City Clerk and prior to the time that the next item in die order of business is taken up. F. Reconsideration. A notion to reconsider the vote on any action taken by the City Council at either this meeting or the previous meeting may be made only by one of the Council Members who voted with the prevailing side. MISCELLANEOUS A. Ordinances, Resolutions and Contracts. 1. All ordinances, resolutions and contracts shall be prepared by the City Attorney. No ordinance shall be prepared for presentation to the Council unless ordered by a majority vote, of the Corutcil, or requested by the Mayor, or City Manager, or prepared by the City Attorney on his own initiative. The Plamning Commission may initiate zoning and plaruning ordinances. 2. Prior Review by Admirtistation Staff. All ordinances, resolutions and contact documents shall, before presentation to the City Council be reviewed by the City Manager. 3. Reading of Ordinances and Resolutions. If a motion to waive reading of all ordinances and resolutions has been adopted at the beginning of the Council meeting, the City Clerk will read the ordinances and resolutions by title only. If arty Council Member so requests, the ordinance or resolution shall be read in fall. 9 13 SEW PART CITY OF NEWPORT BEACH City Council Staff Report Agenda Item No. 5 February 14, 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: C... tLAA v "V TITLE: NEWPORT BEACH COUNTRY CLUB (PA2005 -140) Golf Realty Fund 1600 & 1602 East Coast Highway ABSTRACT: Adoption of ordinances related to the Newport Beach Country Club Planned Community. The City Council introduced the attached ordinances on January 24, 2012. RECOMMENDATION: 1) Conduct a second reading and adopt Ordinance No. 2012 -2 (Attachment No. CC1) approving Planned Community Development Plan No. PC2005- 002, for the entire 140 -acre project site; and 2) Conduct a second reading and adopt Ordinance No. 2012 -3 (Attachment No. CC2) approving Development Agreement No. DA2008 -001. 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). Sub itted by: Kimberly Brand , P Community Development Director Attachments: CC1 Ordinance No. 2012 -2 with attached Exhibit "A" CC2 Ordinance No. 2012 -3 with attached Exhibit "A" C;fty Council Ordinance 2012 -2 (PCDP) with Attached Exhibit "A" 2 ORDINANCE NO. 2012 -2 AN ORDINANCE OF THE CITY OF NEWPORT BEACH APPROVING PLANNED COMMUNITY DEVELOPMENT PLAN NO. PC2005 -002 FOR THE NEWPORT BEACH COUNTRY CLUB PROPERTY LOCATED AT 1600 AND 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 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. a. 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) 3 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 Golf Club site has been reserved for future consideration; e. Approve of 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 public hearing was held on January 24, 2012, in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time, place and purpose of the meeting was given in accordance with the Newport Beach Municipal Code. Evidence, both written and oral, was presented to, and considered by, the City Council at this meeting. SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. 1. An Initial Study and Mitigated Negative Declaration have been prepared in compliance with the California Environmental Quality Act (CEQA), the State CEQA Guidelines, and City Council Policy K -3. 2. The Mitigated Negative Declaration, 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: 11/23/09 11 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 Golf Club site Parks and Recreation (PR) and the Tennis Club site Mixed Use Horizontal 3 /Park and Recreation (MU- H3 /PR). 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. 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. b. The General Plan limits total development at the Golf Club site to 35,000 square feet (Anomaly No. 74) and 3,725 square feet and 24 tennis courts at the Tennis Club site (Anomaly No. 46). Residential is also permitted in Anomaly No. 46, in accordance with MU -3 /PR designation. The proposed new golf clubhouse is consistent with the General Plan development limit of 35,000 square feet. 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. Tmplt: 11/23100 JT 2. The Coastal Land Use Plan designates the Golf Club portion of the project site as Parks and Recreation (PR), and the Tennis Club portion of the project site is designated as Mixed Use Horizontal 3 /Park and Recreation (MU- H3 /PR). The MU- H3/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 -H3 and PR categories. MU -H3 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 adoption of planned community district development plan (PCDP) 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. 3. The subject property has a zoning designation of Planned Community (PC -47). This PC zoning designation was adopted in 1997 by Ordinance 97 -10, as a part of the City- wide amendment to the districting maps, in order to be consistent with the 1988 General Plan Land Use Element and Zoning Code. The City later assigned the PC with a number of 47 for tracking purposes. A Planned Community Development Plan (development regulations), was not adopted when the PC District zoning designation was assigned to the subject property. The Tennis Club is governed separately by Use Permit No. 1492 and its' subsequent amendments, which is typical when a PC does not have development standards. No use permit was issued on the Golf Club site. 4. The applicant proposes a PCDP to provide use regulations, density, and intensity of the proposed uses and very specific development regulations (building height, square footage, setbacks, and parking standard) for each use, including architectural styling and a complete internal vehicular and pedestrian circulation system for both the Golf Club and Tennis Club sites. Because the proposed PCDP contains detail and design regulations that are too specific and provide inflexible standards that are inappropriate for the project implementation and long -term administration, an alternative PCDP has been prepared. 5. The alternative PCDP contains necessary development regulations to accommodate the Golf Club and Tennis Club sites as a single, cohesive and comprehensive large - scale planned development. The alternative PCDP also provides a requirement that a site development review process be completed for construction of any new major building structure (i.e. clubhouse, residential dwelling unit, hotel unit, spa facility, etc.), and would require consideration and approval by the Planning Commission prior to the issuance of grading or building permit to ensure new development proposals within the Tmpit: 11/23109 PCDP are consistent with the goals and policies of the General Plan and the standards set for in the adopted PCDP. SECTION 4. DECISION. THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH DOES HEREBY ORDAIN AS FOLLOWS: The Newport Country Club Planned Community Development Plan (PC -47) shall be adopted to provide use and zoning development standards for the Golf Club and Tennis Club sites which includes the 35,000 square -foot golf clubhouse, 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. 4. The Mayor shall sign and the City Clerk shall attest to the passage of this Ordinance. This Ordinance shall be published once in the official newspaper of the City, and the same shall become effective thirty (30) days after the date of its adoption. This Ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach held on the 24th of January, 2012, and adopted on the 14th day of February, 2012, by the following vote, to wit: Tmplt: 11/23/09 City Council Ordinance No. _ Paae 6 of 8 AYES, COUNCIL MEMBERS NOES, COUNCIL MEMBERS ABSENT, COUNCIL MEMBERS MAYOR ATTEST: Leilani Brown, City Clerk APPROVED AS TO FORM, OFFICE OF CITY ATTORNEY: Aaron Harp, City Attorney 'L- for the City of Newport Beach Tmpll: 11/23109 g��y EXHIBIT "A" NEWPORT BEACH COUNTRY CLUB PLANNED COMMUNITY DEVELOPMENT PLAN TmpIC 11/23/09 9 Nf��� ^ ✓,r•��•�r� f= E��.acl� C,� M� Planned Community Development Plan Date: January 24, 2012 Ordinance No. Adopted 10 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 E i1 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 Page The Villas Development Standards ....................................... ............................... 13 3 12 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 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. Ell 13 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 14 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 [y 15 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 10 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. f 17 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. 9 1-g 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 35,000 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 19 • 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 20 B. Tennis Clubhouse and Ancillary Uses 1. Buildina 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 (subject to an approval of the Community Development Director) 4. Parking 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. 1. Number of Units The maximum allowable number of single - family residential units shall be five (5). 2. Development Standards The following development standards shall apply to the Villas: 12 21 The Villas Development Standards Table Villa Villa A Villa B Villa C Villa D Villa E Designation TTM Lot #1 TTM Lot #2 TTM Lot #3 TTM Lot #4 TTM Lot #5 Lot Size 5,000 square feet minimum Lot Coverage 65% (Maximum) 70% Building Height 39 feet, measured in accordance with the Height and Grade definition of Section 2.0 General Conditions and Regulations Building Side Yard 3 feet minimum Setbacks Building Front and Rear Yard 5 feet minimum Setbacks Enclosed Parking Space for Each 2 2 3 3 2 Unit Open Guest One space - could be located on the private driveway — No Parking Space for 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 guest center, and spa facility. 1. Number of Units The maximum allowable number of the Bungalows shall be 27 short -term guest 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: o Concierge office and guest meeting facility ° Swimming pool and Jacuzzi Spa facility that includes treatment rooms, fitness areas, and snack bar serving drinks, snacks and light breakfast and lunch items 13 22 3. Building Area The maximum allowable gross floor area for the bungalows shall be 28,300 square feet with a 2,200 square foot concierge & guest center and a 7,500 square -foot spa facility. 4. Building Height The maximum allowable building height for the 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 1. 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 is 23 distance. This sign type shall not exceed a maximum of six (6) feet in height. 5. One (1) single or double faced, ground- mounted identification sign shall be allowed at the entrance road to the Bungalows. Total maximum signage area shall not exceed seventy -five (75) square feet and shall not exceed five (5) feet in height and fifteen (15) feet in length. B. Sign Standards 1. The design and materials of all permanent signs in the Newport Beach Country Club Planned Community District shall be in accordance with Sign Section 3.5, unless otherwise approved by the Community Development 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 24 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 25 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 MM 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 Community Development Director 1. The following minor changes to an approved site plan may be approved by the Community Development 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. iE 27 f) Any other minor change to the site plan provided it does not 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 22 Mr 9 zkaark 1 � � � ) . \� /� � Exhibit B cr �~ a m cr m � a rn a4 rj C Vj S4N O� Golf Clubhouse & Parking Lot <q r AO rr,- rlvyr- �'!'T SUNN,1z pOONB for, AAI/ w Q`f YS /U R Q FUR r ui Tennis Clubhouse, Bungalows & Villas. O ,N 2F( y,1 21 w J J o u t" p A p 41899ft 30 n 1 � t O ��� O G Golf Course i n t O� Golf Clubhouse & Parking Lot <q r AO rr,- rlvyr- �'!'T SUNN,1z pOONB for, AAI/ w Q`f YS /U R Q FUR r ui Tennis Clubhouse, Bungalows & Villas. O ,N 2F( y,1 21 w J J o u t" p A p 41899ft 30 A M1 /�\ i i G IT1111 E L=> Ordinance 2012 -3 (Development Agreement) with Attached Exhibit "A" 31 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 1600 AND 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 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 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. a. 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) S2 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 Golf Club site has been reserved for future consideration; e. Approve of 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 public hearing was held on January 24, 2012, in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time, place and purpose of the meeting was given in accordance with the Newport Beach Municipal Code. Evidence, both written and oral, was presented to, and considered by, the City Council at this meeting. SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. 1. An Initial Study and Mitigated Negative Declaration have been prepared in compliance with the California Environmental Quality Act (CEQA), the State CEQA Guidelines, and City Council Policy K -3. 2. The Mitigated Negative Declaration, 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. Tmpll: 11/23/09 33 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 the Golf Club site as Parks and Recreation (PR) and the Tennis Club site as Mixed Use Horizontal 3 /Park and Recreation (MU- H3 /PR). 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. 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. b. The General Plan limits total development at the Golf Club site to 35,000 square feet (Anomaly No. 74) and 3,725 square feet and 24 tennis courts at the Tennis Club site (Anomaly No. 46). Residential is also permitted in Anomaly No. 46, in accordance with MU -3 /PR designation. The proposed new golf clubhouse is consistent with the General Plan development limit of 35,000 square feet. 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). Tmpll: 11/23/09 34 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. SECTION 4. DECISION. THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH DOES HEREBY ORDAIN AS FOLLOWS: 1. The Development Agreement shall be adopted as depicted in Exhibit "A" attached hereto and incorporated by reference. 2. If any section, subsection, sentence, clause or phrase of this ordinance is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this ordinance. The City Council hereby declares that it would have passed this ordinance, and each section, subsection, clause or phrase hereof, irrespective of the fact that anyone or more sections, subsections, sentences, clauses and phrases be declared unconstitutional. 3. This action shall become final and effective thirty days after the adoption of this Ordinance. 4. The Mayor shall sign and the City Clerk shall attest to the passage of this Ordinance. This Ordinance shall be published once in the official newspaper of the City, and the same shall become effective thirty (30) days after the date of its adoption. This Ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach held on the 24th of January, 2012, and adopted on the 14th day of February, 2012, by the following vote, to wit: Tmpll: 11/23/09 S5 City Council Ordinance No. Pape 5 of 6 AYES, COUNCIL MEMB NOES, COUNCIL MEMBERS ABSENT, COUNCIL MEMBERS MAYOR ATTEST: Leilani Brown, City Clerk APPROVED AS TO FORM, ,-OFFICE OF CITY ATTORNEY: Aaron Harp, City Attorne' l3 I I Z for the City of Newport Beach TmpIC 11/23/09 / EXHIBIT "A" DEVELOPMENT AGREEMENT Tmpit: 11/23/09 S7 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92663 -3884 Attn: Citv 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 AORlElEMENT between CITY OF NEWPORT BEACH][ I iN GOLF REALTY FUND CONCERNING PROPERTIES LOCATED IN NEWPORT CENTER WITHIN THE NEWPORT BEACH COUNTRY CLUB PLANNED COMMUNITY DISTRICT AIO -00773 O1.24.12FNAL. 32 TABLE Or CONTENTS Page t. Definitions ........................................................................................... ..............................2 2. General Provisions .............................................................................. ..............................6 2.1 Plan Consistency, Zoning Implementation ............................. ..............................6 2.2 Binding Effect of Agreement .................................................. ..............................6 2.3 Owner Representations and Warranties Regarding Ownership of the Property and Related Matters Pertaining to this Agreement .. ..............................6 2.4 Term ........................................................................................ ..............................6 3. Public Benefits .................................................................................... ..............................7 3.1 Public Benefit Fee ................................................................... ..............................7 3.2 Other Public Benefits .............................................................. ..............................8 4. Development of Project ...................................................................... ..............................9 4.1 Applicable Regulations; Owner's Vested Rights and City's Reservation of Discretion With Respect to Subsequent Development Approvals .......................9 4.2 No Conflicting Enactments .................................................... .............................10 4.3 Reservations of Authority ...................................................... .............................10 4.4 Tentative Subdivision Maps .................................................. .............................12 5. Amendment or Cancellation of Agreement ....................................... .............................12 6. Enforcement ....................................................................................... .............................13 7. Annual Review of Owner's Compliance With Agreement ............... .............................13 7.1 General ................................................................................... .............................13 7.2 Owner Obligation to Demonstrate Good Faith Compl iance .. .............................13 7.3 Procedure ............................................................................... .............................13 7.4 Annual Review a Non - Exclusive Means for Determining and Requiring Clue of Owner's Default ........................................................ .............................14 8. Events of Default ...........................................................::.................. ...........:.................14 8.1 General Provisions ................................................................. .............................14 8.2 Default by Owner ................................................................... .............................14 8.3 City's Option to Terminate Agreement ................................. .............................14 8.4 Default by City ....................................................................... .............................15 8.5 Waiver ................................................................:................... .............................15 8.6 Specific Performance Remedy ............................................... .............................15 8.7 Monetary Damages ................................................................ .............................15 8.8 Additional City Remedy for Owner's Default ....................... .............................16 8.9 No Personal Liability of City Officials„ Employees, or Agents ........................16 8.10 Recovery of Legal Expenses by Prevailing Party in Any Action .......................16 9. Force Majeure .................................................................................... .............................16 A10.00773 v401.06.11 FINAL I 39 Page 10. Indemnity Obligations of Owner ....................................................... .............................16 10.1 ................................................................................................ .............................16 10.2 Third Party Litigation ............................................................ .............................17 11. Assignment ........................................................................................ .............................18 12. Mortgagee Rights ............................................................................... .............................18 12.1 Encumbrances on Property .................................................... .............................18 12.2 Mortgagee Protection ............................................................. .............................19 12.3 Mortgagee Not Obligated ...................................................... .............................19 12.4 Notice of Default to Mortgagee; Right of Mortgagee to Cure ............................19 13. Miscellaneous Terms ......................................................................... .............................20 13.1 Notices ................................................................................... .............................20 13.2 Project as Private Undertaking ............................................... .............................20 13.3 Cooperation ............................................................................ .............•...............21 13.4 Estoppel Certificates .............................................................. .............................21 13.5 Rules of Construction ............................................................ .............................21 13.6 Time Is of the Essence ........................................................... .............................21 117 Waiver .................................................................................... .............................21 13.8 Counterparts ........................................................................... .............................21 13.9 Entire Agreement ................................................................... .............................22 13.10 Severability ............................................................................ .............................22 13.11 Construction ........................................................................... .............................22 13.12 Successors and Assigns; Constructive Notice and Acceptance ..........................22 13.13 No Third Party Beneficiaries ................................................. .............................23 13.14 Applicable Law and Venue .................................................... .............................23 13.15 Section Headings ................................................................... .............................23 13.16 Incorporation of Recitals and Exhibits .................................. .............................23 13.17 Recordation ............................................................................ .............................23 A10 -0077 001.06.11 FINAL -ii- IN DEVELOPMENT AGREEMENT (Pursuant to California Government Code Sections 65864- 65869.5) This DEVELOPMENT AGREEMENT (the "Afeement ") is dated for reference purposes as of the _ day of , 2011 (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 "Owner "). City and Owner are sometimes collectively referred to in this Agreement as the "Parties" and individually as a "Party." RECITALS A. Owner 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 is located within and consists of approximately 145 acres of the area shown on the City's Zoning Map as the Newport Beach Country Club Planned Community District. B. In order to encourage investment in, and commitment to, comprehensive planning and public facilities financing, strengthen the public planning process and encourage private implementation of the local general plan, provide certainty in the approval of projects in order to avoid waste of time and resources, and reduce the economic costs of development by providing assurance to property owners that they may proceed with projects consistent with existing land use policies, rules, and regulations, the California Legislature adopted California Government Code sections 65864- 65869.5 (the "Development Agreement Statute ") authorizing cities and counties to enter into development agreements with persons or entities having a legal or equitable interest in real property located within their jurisdiction. C. On March 13, 2007, the City Council adopted Ordinance No. 2007 -6, entitled "Ordinance Amending Chapter 15.45 of City of Newport Beach Municipal Code Regarding Development Agreements" (the "Development Agreement Ordinance "). This Agreement is consistent with the Development Agreement Ordinance. D. As detailed in Section 3 of this Agreement, Owner has agreed to provide the following significant public benefits as consideration for this Agreement: Development of 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 "PR (Parks and Recreation) the Coastal Land Use Plan's designation as "OS (Open Space)" and the Newport Beach Country Club Planned Community District (PA 2008 -152) that was adopted in 1997 by Ordinance No. 97 -10 in order to establish appropriate zoning to regulate land use and development of the Property consistent with the General Plan, F. In recognition of the significant public benefits that this Agreement provides, the City Council has found that this Agreement:. (i) is consistent with the City of Newport Beach General Plan as of the date of this Agreement; (ii) is in the best interests of the health, safety, and A10- 00773 v401.06.11 FINAL F� general welfare of City, its residents, and the public; (iii) is entered into pursuant to, and constitutes a present exercise of, City's police power; (iv) is consistent and has been approved consistent with the Final Environmental Impact Report for the City of Newport Beach General Plan 2006 Update (State Clearinghouse No. 200601 1 1 1 9) and the Mitigated Negative Declaration for the Newport Beach Country Club Planned Community District (PA 2008 -152) approved by [lie City Council on or before the Agreement Date, both of which analyze the environmental effects of the proposed development of the Project on the Property; and (v) is consistent and has been approved consistent with provisions of California Government Code section 65867 and City of Newport Beach Municipal Code chapter 15.45. G. On , 201_, City's Planning Commission held a public hearing on this Agreement, made findings and determinations with respect to this Agreement, and recommended to the City Council that the City Council approve this Agreement. H. On , 201. the City Council also held a public hearing on this Agreement and considered the Planning Commission's recommendations and the testimony and information submitted by City staff, Owner, and members of the public. On 201, consistent with applicable provisions of the Development Agreement Statute and Development Agreement Ordinance, the City Council adopted its Ordinance No. _ (the "Adopting Ordinance "), finding this Agreement to be consistent with the City of Newport Beach General Plan and approving this Agreement. AGREEMENT NOW, THEREFORE, City and Owner agree as follows: 1. Definitions. hi addition to any terms defined elsewhere in this Agreement, the following terms when used in this Agreement shall have the meanings set forth below: "Action" shall have the meaning ascribed in Section 8.10 of this Agreement. "Adopting Ordinance" shall mean City Council Ordinance No. approving and adopting this Agreement. "Agreement" shall mean this Development Agreement, as the same may be amended from time to time. "Agreement Date" shall mean the date first written above, which date is the date the City Council adopted the Adopting Ordinance. "CEOA" shall mean the California Environmental Quality Act (California Public Resources Code Sections 21000-21177) and the implementing regulations promulgated thereunder by the Secretary for Resources (California Code of Regulations, Title 14, section 15000 et seg.) ( "CEQA Guidelines "), as the same may be amended from time to tine. A10.00773 v401.06.11 FINAL 2 42 "C_yt ' shall mean the City of Newport Beach, a California charter city. "City Council" sliall mean the governing body of City. "City's Affiliated Parties" shall have the meaning ascribed in Section 9.1 of this Agreement. "Claim" shall have the meaning ascribed in Section 9.1 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 7.1 of this Agreement. "Default" shall have the meaning ascribed to that term in Section 7.1 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 Vesting Tentative Tract Map, and _ Council on or before the Agreement consistent with this Agreement. Newport Beach Planned Community District, Development Plan approved by the City Date, as the same may be amended from time to time "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 Owner's rights set forth AIO -00773 x401,06.11 FINAL J 4S in this Agreement, unless such amendment or modification is expressly authorized by this Agreement or is agreed to by Owner in writing: the General Plan; the Development Plan; and, to the extent not expressly superseded by the Development Plan or this Agreement, all other land use and subdivision regulations governing the permitted uses, density and intensity of use, design, improvement, and construction standards and specifications, procedures for obtaining required City permits and approvals for development, and similar matters that may apply to development of the Project on the Property during the Term of this Agreement that are set forth in Title 15 of the Municipal Code (buildings and construction), Title 19 of the Municipal Code (subdivisions), and Title 20 of the Municipal Code (planning and zoning), but specifically excluding all other sections of the Municipal Code, including without limitation Title 5 of the Municipal Code (business licenses and regulations). Notwithstanding the foregoing, the term "Development Regulations," as used herein, does not include any City ordinance, resolution; code, rule, regulation or official policy governing any of the following: (i) the conduct of businesses, professions, and occupations; (ii) taxes and assessments; (iii) the control and abatement of nuisances; (iv) the granting of encroachment permits and the conveyance of rights and interests which provide for the use of or the entry upon public property; or (v) the exercise of the power of eminent domain. "Effective Date" sliall mean the latest of the following dates, as applicable: (i) the date that is thirty (30) days after the Agreement Date; (ii) if a referendum concerning the Adopting Ordinance or any of the Development Regulations approved on or before the Agreement Date is timely qualified for the ballot and a referendum election is held concerning the Adopting Ordinance or any of such Development Regulations, the date on which the referendum is certified resulting in upholding and approving the Adopting Ordinance and such Development Regulations and becomes effective, if applicable; (iii) if a lawsuit is timely filed challenging the validity or legality of the Adopting Ordinance, this Agreement, and /or any of the Development Regulations approved on or before the Agreement Date, the date on which said challenge is finally resolved in favor of the validity or legality of the Adopting Ordinance, this Agreement, and/or the applicable Development Regulations, whether such finality is achieved by a final non - appealable judgment, voluntary or involuntary dismissal (and the passage of any time required to appeal an involuntary dismissal), or binding written settlement agreement; or (iv) the date of approval of a coastal development permit for the Project; (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, 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 A10.00773 A01.06A 111NAL 4 44 Environmental Response Compensation and Liability Act of 1980, 42 U.S.C. Sections 9601, et seg., as amended ( "CERCLA "); the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976; 42 U.S.C. Sections 6901, et sec ., as amended ( "RC RA "); the Emergency Planning and Community Right to Know Act of 1986, 42 U.S.C. Sections 11001 et sea., as amended; the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et M., as amended; the Clean Air Act, 42 U.S.C. Sections 7401 et se g., 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 seq., as amended; the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. Sections 136 et seq., as amended; the Federal Safe Drinking Water Act, 42 U.S.C. Sections 300f et sea., as amended; the Federal Radon and Indoor Air Quality Research Act, 42 U.S.C. Sections 7401 et se q., as amended; the Occupational Safety and Health Act, 29 U.S.C. Sections 651 et se q., as amended; and California Health and Safety Code Section 25100, et SeMC . "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 Owner's lights 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 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. "Mortgage" shall mean a mortgage, deed of trust, sale and leaseback arrangement, or any other form of conveyance in which the Property, or a part or interest in the Property; is pledged as security and contracted for in good faith and for fair value. "Mortgagee" shall mean the holder of a beneficial interest under a Mortgage or any successor or assignee of the Mortgagee. "Notice of Default" shall have the meaning ascribed in Section 8.1 of this Agreement. "Owner" shall mean Golf Realty Fund, a California limited partnership and any successor or assignee to all or any portion of the right, title, and interest of Golf Realty Fund in and to ownership of all or a portion of the Property. "Party" or "Parties" shall mean either City or Owner or both, as determined by the context. "Project" shall mean all on -site and off -site improvements that Owner is authorized and /or required to construct with respect to each parcel of the Property, as provided in this Agreement and the Development Regulations, as the same may be modified or amended from time to time consistent with this Agreement and applicable law. A10.00773 v401.06.11 FINAL 5 45 "Pro ert " is described in Exhibit A and depicted on Exhibit B. "Public Benefit Fee" shall have the meaning ascribed in Section 3.1 of this Agreement. "Subsequent Development Approvals" shall mean all discretionary development and building approvals that Owner is required to obtain to Develop the Project on and with respect to the Property after the Agreement Date consistent with the Development Regulations. "Term" shall have the meaning ascribed in Section 2.4 of this Agreement. "Termination Date" and "Lot Termination Date" shall have the meaning ascribed in Section 2.4 of this Agreement. "Transfer" shall have the meaning ascribed in Section I 1 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 Owner Representations and Warranties Regarding Ownership of the Property and Related Matters Pertaining to this Agreement. Owner and each person executing this Agreement on behalf of Owner hereby represents and warrants to City as follows: (i) Owner or any co -owner comprising Owner is a legal entity that such entity is duly formed and existing and is authorized to do business in the State of California; (ii) if Owner or any co -owner comprising Owner is a natural 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 Owner to enter into this Agreement have been taken and that Owner has the legal authority to enter into this Agreement; (iv) that to the best of Owner's - knowledge, 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 Owner or any person or entity comprising Owner has to any thud party; (v) that neither Owner nor any co -owner comprising Owner is the subject of any voluntary or involuntary petition in bankruptcy; and (vi) that to the best of Owner's knowledge, 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 "Tenn ") shall commence on the Effective Date and shall terminate on the "Termination Date." AI0 -00773 A 01.06.11 FINAL V 40 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 Party's rights or substantially increases its obligations or risks hereunder or thereunder, then such Party shall have the right to terminate this Agreement upon delivery of a written notice of termination to the other Party, in which event neither Party shall have any further rights or obligations hereunder except that Owner's indemnity obligations set forth in Article 10 shall remain in frill 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 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. As used herein, the tern "Lot Termination Date" for any separate legal lot within the 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 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, Owner shall pay to City a fee that shall be in addition to any other fee or charge to A10.00773 001.06.11 FINAL 7 /f which the Property and the Project would otherwise be subject (lierein, the "Public Benefit Fee ") in the sum of (i) Ninety -three thousand Dollars ($ 93,000 ) per 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 new construction to the existing 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 1 during the Term of this Agreement (each, an "Adjustment Date ") by the percentage increase in the CPI Index in the year prior to the applicable Adjustment Date. The amount of the percentage increase in the CPI Index on the applicable Adjustment Dates shall in each instance be calculated based on the then most recently available CPI Index figures such that, for example, if the Effective Date of this Agreement falls on July 1 and the most recently available CPI Index figure on the first Adjustment Date (January 1 of the following year) is the CPI Index for November of the preceding year, the percentage increase in the CPI Index for that partial year (a 6 -month period) shall be calculated by comparing the CPI Index for November of the preceding year with the CPI Index for May of the preceding year (a 6 -month period). In no event, however, shall application of the CPI Index reduce the amount of the Public Benefit Fee (or unpaid portion thereof) below the amount in effect prior to any applicable Adjustment Date. 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 Owner or on 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 hndex 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 Owner shall not be entitled to any credit or offset to the Public Benefit Fee for any existing buildings or structures. 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 Owner's vesting rights to be acquired hereunder, and that 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 seq.), or otherwise. In addition to any other remedy set forth in this Agreement for Owner's default, if 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. If the City has entered into a separate Development Agreement with The Newport Beach Country Club, Inc. (the "NBCC DA"), pertaining to the development of a golf clubhouse on the Property, this requirement to pay a Public Benefit Fee for the construction of the golf clubhouse shall not apply to Owner, unless Owner itself is seeking issuance of permits for the construction of the golf clubhouse. A10.00773 x401.06.11 FINAL 8 42 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; Owner's Vested Rights and City's Reservation of Discretion With Respect to Subsequent Development Ak rop vals. Other than as expressly set forth in this Agreement, during the Term of this Agreement, (i) 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 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 CEQA or any other federal or state law or regulation in conjunction with any Subsequent Development Approvals that may be required for the Project, and in this regard, as to future actions referred to in clauses (i) -(iv) of this sentence, City reserves its full discretion to the same extent City would have such discretion in the absence of this Agreement. In addition, it is understood and agreed that nothing in this Agreement is intended to vest 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. Owner has expended and will continue to expend substantial amounts of time and money plamring and preparing for Development of the Project. Owner represents and City acknowledges that Owner would not make these expenditures without this Agreement, and that Owner is and will be making these expenditures in reasonable reliance upon its vested rights to Develop the Project as set forth in this Agreement. 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, 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 A10.00773 v401.06.11 FINAL 9 4_9 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. hi Pardee Construction Co. v. City of Camarillo (1984) 37 Cal.3d 465, the California Supreme Court held that a construction company was not exempt from a city's growth control ordinance even though the city and construction company had entered into a consent judgment (tantamount to a contract under California law) establishing the company's vested rights to develop its property consistent with the zoning. The California Supreme Court reached this result because the consent judgment failed to address the timing of development. The Parties intend to avoid the result of the Pardee case by acknowledging and providing in this Agreement that Owner shall have the vested right to Develop the Project on and with ,respect to the Property at the rate, timing, and sequencing that Owner deems appropriate within the exercise of Owner's sole subjective business judgment, provided that such Development occurs in accordance with this Agreement and the Development Regulations, notwithstanding adoption by City's electorate of an initiative to the contrary after the 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 1unitation restricts Owner'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 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 Owner, and monitoring A10.00773 v401.06.11 FINAL 10 50 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 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, 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 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 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 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: (i) City's nonnal fees for processing, enviromnental 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 Overriding Federal and State Laws and Regulations. Federal and state laws and regulations that override 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) 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 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 Owner shall meet and confer in good faith in a reasonable attempt to deternine 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 Owner agree to preserve the terms of this Agreement and the rights of Owner as derived fom this Agreement to the maximum feasible extent while resolving the conflict. City agrees to cooperate AlOM773 v4 01.06.11 FINAL 11 with Owner at no cost to City in resolving the conflict in a mamrer which minimizes any financial impact of the conflict upon Owner. City also agrees to process in a prompt manner 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 Owner's vested rights under this Agreement. 4.3.7 Uniform Building Standards. Existing and future building and building - related standards set forth in (lie uniform codes adopted and amended by City from time to time, including building, plumbing, mechanical, electrical, housing, swimming pool, and fire codes, and any modifications and amendments thereof shall all apply to the Project and the Property to the same extent that the same would apply in the absence of this Agreement. 4.3.8 Public Works Improvements. To the extent 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 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 Maus. City agrees that 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 Properly, 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 thus Agreement under Section 83 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 AIO-00773 v401.06.11 FINAL 12 ` 52 Newport Beach Municipal Code section 15.45.060 or by unilateral termination by City in the event of an uncured default of 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 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 terns of this Agreement as provided in Government Code Section 65865.1. Owner (including any successor to the owner executing this Agreement on or before the Agreement Date) shall pay City a reasonable fee in an amount City may reasonably establish from time to time to cover the actual and necessary costs for the annual review. City's failure to timely provide or conduct an annual review shall not constitute a Default hereunder by City. 7.2 Owner Obligation to Demonstrate Good Faith Compliance. During each <uumal review by City, Owner is required to demonstrate good faith compliance with the terms of the Agreement. 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 Owner has, for the period under review, complied with the terms of this Agreement. If the City Council finds that Owner has so complied, the annual review shall be concluded. If the City Council finds, on the basis of substantial evidence, that Owner has not so complied, written notice shall be sent to Owner by first class mail of the City Council's finding of non - compliance, and 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 Owner, Owner must commence the cure within such thirty (30) days and diligently pursue such cure to completion. If 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. AIO-00773 v401.06.11 FINAL 13 15S 7.4 Annual Review a Non - Exclusive Means for Determining and Requiring Cure of Owner's Default. The amoral review procedures set forth in this Article 7 shall not be. the exclusive means for City to identify a Default by Owner or limit City's rights or remedies for any such Default. 8. Events of Default. 8.1 General Provisions. hi the event of any material default, breach, or violation of the terms of this Agreement ( "Default "), the Party alleging a Default shall have the right to deliver a written notice (each, a "Notice of Default ") to the defaulting Party. The Notice of Default shall specify the nature of the alleged Default and a reasonable manner and sufficient period of time (ten (10) days if the Default relates to the failure to timely make a monetary payment due hereunder and not less than thirty (30) days in the event of non - monetary Defaults) in which the Default must be cured (the "Cure Period "). During the Cure Period, the Party charged shall not be considered in Default for the purposes of termination of this Agreement or institution of legal proceedings. If the alleged Default is cured within the Cure Period, then the Default thereafter shall be deemed not to exist. If a non - monetary Default cannot be cured during the Cure Period with the exercise of commercially reasonable diligence, the defaulting Party must promptly commence to cure as quickly as possible, and in no event later than thirty (30) days after it receives the Notice of Default, and thereafter diligently pursue said cure to completion. 8.2 Default by Owner. If 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 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 oil the claimed Default. If Owner's appeal of the Notice of Default is timely and in good faith but after a public hearing of Owner's appeal the City Council concludes that 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 Owner's appeal is communicated to Owner. 8.3 City's Option to Terminate Agreement. In the event of an alleged Owner Default, City may not terminate this Agreement without first delivering a written Notice of Default and providing Owner with the opportunity to cure the Default withinn the Cure Period, as provided in Section 8.1, and complying with Section 8.2 if 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 Owner. Any such judicial challenge must be brought within thirty (30) days of service on Owner, by first class mail, postage prepaid, of written notice of termination by City or a written notice of City's determination of all appeal of the Notice of Default as provided in A10 -00773 v4 01.06.11 FINAL 14 54 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 Owner alleges a City Default and alleges that the City has not cured the Default within the Cure Period, 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 Owner's performance hereunder shall neither be a Owner Default nor constitute grounds for termination or cancellation of this Agreement by City and shall, at Owner's option (and provided Owner delivers written notice to City within thirty (30) days of the commencement of the alleged City Default), extend the Term for a period equal to the length of the delay. 8.5 Waiver. Failure or delay by either Party in delivering a Notice of Default shall not waive that Party's right to deliver a future Notice of Default of the same or any other Default, 8.6 Specific Performance Remedy.. Due to (lie 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 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. 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 terns of this Agreement. It is not possible to determine the sum of money which would adequately compensate Owner or City for such efforts. For the above reasons, City and Owner agree Unat damages would not be an adequate remedy if either City or Owner fails to carry out its obligations under this Agreement. Therefore, specific performance of this Agreement is necessary to compensate Owner if City fails to carry out its obligations under this Agreement or to compensate City if Owner falls to carry out its obligations under this Agreement. 8.7 Monetary Damages. The Parties agree that monetary damages shall not be an available remedy for either Party for a Default hereunder by the other Party; provided, however, that (i) nothing in this Section 8.7 is intended or shall be interpreted to limit or restrict City's right to recover the Public Benefit Fees due from Owner as set forth herein; and (ii) nothing in this Section 8.7 is intended or shall be interpreted to limit or restrict Owner's indemnity obligations set forth in Article 10 or the right of the prevailing Party in any Action to recover its litigation expenses, as set forth in Section 8.10. A10.00773 x401.06.11 FINAL 15 8.8 Additional City Remedy for Owner's Default. In the event of any Default by 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 (lie Property, including any fees, grants, dedications, or improvements to public property which it may have received prior to Owner's Default without recourse fi•om 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. 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 tinder 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 Temn of this Agreement. hn addition, in no event shall the time for performance of a monetary obligation, including without limitation Owner's obligation to pay Public Benefit Fees, be extended pursuant to this Section. 10. Indenmity Obligations of Owner. 10.1 Indemnity Arising From Acts or Omissions of Owner. Owner shall inderm3ify, 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 Owner or Owner's agents, contractors, subcontractors, agents, or employees in the course of Development of the Project or any other activities of 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 A10*0773 A 01.06.11 HNAL 16 50 Affiliated Parties, and 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, 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 amml the approval of this Agreement, the Adopting Ordinance, any of the Development Regulations for the Project (including without limitation any actions taken pursuant to CEQA with respect thereto), any Subsequent Development Approval, or the approval of any permit granted pursuant to this Agreement. Said indemnity obligation shall include payment of attorney's fees, expert witness fees, and court costs. City shall promptly notify Owner of any such Claim and City shall cooperate with Owner in the defense of such Claim. If City fails to promptly notify Owner of such Claim, Owner shall not be responsible to indemnify, defend, and hold City harmless from such Claim until Owner is so notified and if City fails to cooperate in the defense of a Claim 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 Owner's indemnity obligation, provided that such counsel shall reasonably cooperate with Owner in an effort to minimize the total litigation expenses incurred by Owner. In the event either City or Owner recovers any attorney's fees, expert witness fees, costs, interest, or other amounts from the party or parties asserting the Claim, 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 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 Owner in connection with 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. A10-00773 A01.06.11 rm+AL 17 11. Assignment. Owner shall have the right to sell, transfer, or assign (hereinafter, collectively, a "Transfer ") 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 "Owner" under this Agreement) at any time fi•om 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 seg.) or City's local subdivision ordinance and any such Transfer shall include the assignment and assumption of Owner's rights, duties, and obligations set forth in or arising under this Agreement "as to the Property or the portion thereof so Transferred and shall be made in strict compliance with the following conditions precedent: (i) no transfer or assignment of any of 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, 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 Owner and in a form subject to the reasonable approval of the City Attorney of City (or designee), pursuant to which the transferring Owner assigns to the successor Owner and the successor Owner assumes from the transferring Owner all of the rights and obligations of the transferring 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 Owner's right to develop the portion of the Property so Transferred. Notwithstanding any Transfer, the transferring Owner shall continue to be jointly and severally liable to City, together with the successor Owner, to perform all of the transferred obligations set forth in or arising under this Agreement unless the transferring 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 Owner's full satisfaction of all of the following conditions: (i) the transferring 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 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 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 Owner either (A) provides City with substitute security equivalent to any security previously provided by the transferring Owner to City to secure performance of the successor 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 Owner either provides security reasonably satisfactory to City or otherwise demonstrates to City's reasonable satisfaction that the successor 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. Mortgagee Rights. 12.1 Encumbrances on Property. A10 -00773 v401.06.11 FINAL 18 The Parties agree that this Agreement shall not prevent or limit Owner in any manner from encumbering the Property, any part of the Property, or any improvements on the Property with any Mortgage securing financing with respect to the construction, development, use, or operation of the Project. 12.2 Mortgagee Protection. This Agreement shall be superior and senior to the lien of any Mortgage. Nevertheless, no breach of this Agreement shall defeat, render invalid, diminish, or impair the lien of any Mortgage made in good faith and for value. Any acquisition or acceptance of title or any right or interest in the Property or part of the Property by a Mortgagee (whether due to foreclosure, trustee's sale, deed in lieu of foreclosure, lease termination, or otherwise) shall be subject to all of the terns 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 Owner or other affirmative covenants of Owner, or to guarantee this performance except that: (i) the Mortgagee shall have no right to develop the Project under the Development Regulations without ftilly complying with the terms of this Agreement; and (ii) to the extent that any covenant to be performed by 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 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. AIO-0D773 v401.06.11 FINAL 19 159 13. Miscellaneous Terns. 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 OWNER: Golf Realty Fund 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 Project as Private Undertaking, The Development of the Project is a private undertaking. Neither Party is acting as the agent of the other in any respect, and each Party is an independent contracting entity with respect to the terms, covenants, and conditions set forth in this Agreement. This Agreement forms no partnership, joint venture, or other association of any kind. The only relationship between the Parties is that of a government entity regulating the Development of private property by the owner of the property. A10-00773 v401.06.11 FINAL 20 00 13.3 Cooperation. Each Party shall cooperate with and provide reasonable assistance to the other Party to the extent consistent with and necessary to implement this Agreement. Upon the request of a Party at any time, the other Party shall promptly execute, with acknowledgement or affidavit if reasonably required, and file or record the required instruments and writings and take any actions as may be reasonably necessary to implement this Agreement or to evidence or consummate the transactions contemplated by this Agreement. 13.4 Estoppel Certificates. At any time, either Party may deliver written notice to the other Party requesting that that Party certify in writing that, to the best of its knowledge: (i) this Agreement is in frill force and effect and is binding on the Party; (ii) this Agreement has not been amended or modified either orally or in writing or, if this Agreement has been amended, the Party providing the certification shall identify the amendments or modifications; and (iii) the requesting Party is not in Default in the performance of its obligations under this Agreement and no event or situation has occurred that with the passage of time or the giving of Notice or both would constitute a Default or, if such is not the case, then the other Party shall describe the nature and amount of the actual or prospective Default. The Party requested to furnish an estoppel certificate shall execute and return the certificate within thirty (30) days following receipt. Requests for the City to furnish an estoppel certificate shall include reimbursement for all administrative costs incurred by the City including reasonable attorneys fees incurred by the City in furnishing an estoppels certificate. 13.5 Rules of Construction. The singular includes the plural; the masculine and neuter include the feminine; "shall" is mandatory; and "may" is permissive. 13.6 Time Is of the Essence. Time is of the essence regarding each provision of this Agreement as to which time is an element. 13.7 Waiver. The failure by a Party to insist upon the strict performance of any of the provisions of this Agreement by the other Party, and failure by a Party to exercise its rights upon a Default by the other Party, shall not constitute a waiver of that Party's right to demand strict compliance by the other Party in the future. 13.8 Counterparts. 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. AIO -00773 v401.06.11 FINAL 21 /../ 0l 13.9 Entire Agreement. This Agreement constitutes the entire agreement between the Parties and supersedes all prior agreements and understandings, both written and oral, between the Parties with respect to the subject matter addressed in this Agreement. 13.10 Severability. The Parties intend that each and every obligation of the Parties is interdependent and interrelated with the other, and if any provision of this Agreement or the application of the provision to any Party or circumstances shall be held invalid or unenforceable to any extent, it is the intention of the Parties that the remainder of this Agreement or the application of the provision to persons or circumstances shall be rendered invalid or unenforceable. The Parties intend that neither Party shall receive any of the benefits of the Agreement without the full performance by such Party of all of its obligations provided for under this Agreement. Without limiting the generality of the foregoing, the Parties intend that Owner shall not receive any of the benefits of this Agreement if any of 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 Owner shall cooperate as required, despite this Agreement, should third party litigation result in the nonperformance of 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 Owner are sophisticated parties who were represented by independent counsel throughout the negotiations or City and Owner had the opportunity to be so represented and voluntarily chose to not be so represented. City and 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 part of this Agreement in favor of or against either Party. 13.12 Successors and Assigns; Constructive Notice and Acceptance. The burdens of this Agreement shall be binding upon, and the benefits of this Agreement shall inure to, all successors in interest to the Parties to this Agreement. All provisions of this Agreement shall be enforceable as equitable servitudes and constitute covenants rumiing with the land. Each covenant to do or refrain from doing some act hereunder with regard to Development of the Property: (i) is for the benefit of and is a burden upon every portion of the Property; (ii) runs with the Property and each portion thereof; and (iii) is binding upon each Party and each successor in interest during its ownership of the Property or any portion thereof. Every person or entity who now or latei owns or acquires any right, title, or interest in any part of the Project or the Property is and shall be conclusively deemed to have consented and agreed to every provision of this Agreement. This Section 13.12 applies regardless of whether the instrument by which such person or entity acquires the interest refers to or acknowledges this Agreement and A10a773 v4 01.06.11 FINAL 22 02 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 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 Patty 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. AIO-00771 vA 01.06.11 FINAL 23 i s SIGNATURE PAGE TO ZONING IMPLEMENTATION AND PUBLIC BENEFIT SPACE AGREEMENT "OWNER" By: Its: Ew Its: "CITY" CITY OF NEWPORT— BEACH J By: Its: Mayor M.011*16 City Clerk AP ROVFip TO FORM: a�r�City Attomey A10-00777 v401.06.11 FINAL 24 04 STATE OF CALIFORNIA COUNTY OF ORANGE On , before me, the undersigned, a Notary Public in and for said State, personally appeared and , personally known to me to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacities and that by their signature on the instrument the persons, or the entity upon behalf of which the persons acted, executed the instrument. Witness my hand and official seal. Notary Public in and for said County and State STATE OF CALIFORNIA COUNTY OF ORANGE On , before me, the undersigned, a Notary Public in and for said State, personally appeared and , personally known to me to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacities and that by their signature on the instrument the persons, or the entity upon behalf of which the persons acted, executed the instrument. Witness my hand and official seal. Notary Public in and for said County and State A10.00773 v401.06.11 FINAL -25- 05 EXHIBIT A LEGAL DESCRIPTION OF PROPERTY The Tennis Club: Parcel 1 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. The Golf Club: Parcel 1 of Parcel Map No. 79 -704, in the City of Newport Beach, County of Orange, State of California, as per Map filed in Book 152, Pages 17 to 20, inclusive, of Parcel Maps, in the office of the County Recorder of Orange County. Parcel 3 of Parcel Map No. 79 -704, in the City of Newport Beach, County of Orange, State of California, as per Map filed in Book 152, Pages 17 to 20, inclusive, of Parcel Maps, in the Office of the County Recorder of Orange County. A 1000773 x401.06.11 FINAL 1 00 EXHIBIT B DEPICTION OF PROPERTY MA111H RAN \V- OBE EUNGXMVS ata 'Fa in rnn Y • �-�.. rc ��� ar qrl� r� gyp• �,x , �C ��a I�l xm } t `a7o i� � G•x 7:ti YF 'S � .9 \d � L . �� i• • v '�S.�r z ai a�� id � Afa { ^� ��� � nn 1•In�l� � a s Ii�1niJnnl �` ° rl l ` r Gds ( � �y 1 •r nn n /• ,� d; / " � roll, �91 W411111V I� WNW AIO -00773 v401.06.11 rMAL 1 07