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HomeMy WebLinkAboutF-2d - Newport Dunes Settlement Agreement01 0 OFFICE OF THE CITY ATTORNEY MEMORANDUM (3v BY THE CITY COUNCIL CITY OF NEWPORT BEACH MAY n 9 1983 Agenda Item No. F2(d) May 9, 1983 To: Honorable Mayor and Members of the City Council From: Robert H. Burnham - City Attorney Re: Newport Dunes Settlement Agreement The City Council has previously approved the concept of a Settlement Agreement to resolve litigation concerning the Newport Dunes Redevelopment Plan. Subsequent to Council approval of this concept this office drafted an Agreement and circulated that Agreement to representatives of the County, Newport Dunes, and City Staff. Numerous comments were received with regard to the tenative Agreement and the Agreement has been revised and modified in accordance with many of those comments. The principal amendments to the Agreement are summarized as follows: 1. Elimination of certain operational characteristics with regard to the family inn, such as, the requirement that the inn provide recreational facilities for.children; 2. A reduction in the number of spaces to be reserved for late arrivals from 208 of the spaces to approximately 58; 3. A slight relaxation in the conditions that must be satisified before boat slips can be constructed in the mouth of the lagoon; 4. A change in the schedule pursuant to which contributions for traffic improvements are to be made, together with a require- ment that money contributed be used to improve certain specific intersections to be selected by City and County. It is the opinion of Staff that the changes do not effect the WPM =WPONT MT pG Mrj= = ju= MARINA EXPANSION Sa mm_ , � -r- -'CONEY ISLAND OPEN "woemw 0� - Aum lu�oomv�luc � MARIh FY RE VE vw Wm o pow AREA A ERM11511 0 AREA B mmm� mm , doo 11 COURTON &ASSOCIATES i0► DRY BOAT STORAGE RECREATION & NEW DEVELOPMENT PLAN newport dunes figure NORTH COAST PLANNING UNIT LOCAL COASTAL PROGRAM Honorable Mayor * Members of the City CounW May 9, 1983 Page 2 substance of the Agreement, and, in fact, in many respects the Agreement more clearly reflects the understanding of the parties. RECOMMENDATION; It is recommended that the City Council authorize the Mayor and City Clerk to execute the Agreement and then direct Staff to forward the Agreement to the County of Orange and Newport Dunes, Inc. for their approval. �Y♦ MEB -Dunes _t NEWPORT BEACH ALIC LIBRARY Administrative Offices: 856 SAN CLEMENTE DRIVE • NEWPORT BEACH, CA 92660 • (714) 640 -2140 May 5, 1983 Mr. Robert H. Burnham City Attorney City of Newport Beach City Hall 3300 Newport Blvd. Newport Beach, CA 92663 RE: O'CONNOR'S & O'NEAL'S /CIVIC PLAZA Dear Bob: � -a d A special meeting of the Board of Library Trustees was held on May 4, 1983 to review the proposed agreement in your letter of April 28, 1983 to the Irvine Company. The Board has the follow- ing additional agreements (numbering corresponds with your letter) that they request be included in the final document. 1. Add the words: "equal exchange of 14,800 square feet ". 2.A. 2.C. 2.E. 2.F. 2.G. 2.I. Change "22" to "29" parking spaces ... east "and west side" of the central aisle ... . Add "on the Irvine Company property" after "certain, specified areas ... ". Change "30" days to "90" days. Add "Restaurant could use parking exclusively only when the Library is closed or, when closed, if the community room is not in use. Any exclusive use by the restaurant would be limited to the west side of the main aisle only." Gras. "All improvements regarding parking, lighting, paving, drainage, landscaping, retaining walls, etc., are to be at the expense of the Irvine Company." (New). Insert "Library reserves the right to claim ex- clusive use of 18 spaces on the easterly side of the main aisle, parking is currently shared, in the event of future Library need." BRANCH LIBRARIES BALBOA BRANCH CORONA DELMAR BRANCH MARINERSBRANCH NEWPORT CENIPR BRANCH. 100E. Balboa Blvd. 420 Marigold Ave. 2005 Dover Dr. &% San Clemente Dr. Balboa, 92661 Corona Del Mar, 92625 Newport Beach, 92660 Newport Beach, 92660 640- 2241 640.2191 640- 2141 640 -2246 r . • Mr. Robert H. Burnham City Attorney April 5, 1983 Page 2 The Board of Library Trustees agrees in concept to the proposed Agreements, with the inclusion of these additional conditions, and the Board reserves the right to request further review and reconsideration of the Agreements should the Agreements, as im- plemented, prove to be unsatisfactory and /or unworkable. The Trustees want included in any Agreements the reassurance that the Library will retain the right to exclusive use of Library property should it be needed. The Board of Library Trustees wishes to be kept informed of each stage of the construction of the restaurant. Sincerely, c7 ary Richmond Secretary to the Board QX „ cc: Evelyn R. Hart, Mayor Robert L. Wynn, City Manager Board of Library Trustees • RESOLUTION NO. q RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH AUTHORIZING THE MAYOR & CITY CLERK TO EXECUTE AN AGREEMENT TO RESOLVE LITIGATION OVER NEWPORT DUNES REDEVELOPMENT WHEREAS, pursuant to the provisions of Chapter 526 of the California State Statutes of 1919, the State of California granted certain tidelands to the County of Orange, which grant was subject to certain conditions and restraints on the use of the property. These tidelands were re- granted by the State to the County, pursuant to the provisions of Chapter 415 of the Statutes of 1975; this grant again subject to certain conditions and restraints on the use of the property; and WHEREAS, The County of Orange has leased the property to Newport Dunes Corporation pursuant to two leases which run to May 30, 2008 and February 28, 2015, respectively; and WHEREAS, pursuant to these leases, Newport Dunes Corporation has improved the property such that certain recreational and visitor - serving facilities are now located on the property. These facilities include the following: The existing Anthony's Restaurant is approximately 7,500 sq. ft. and the i) A beach, consisting of approximately eleven acres, together with concessions to serve beachgoers such as fast food stands and businesses which rent beach equipment; ii) A recreational vehicle and travel trailer camping area, with 64 spaces fully serviced by sewer, water and electricity and 80 spaces which are partially served by such utilities; 0 0 iii) A restaurant known as Anthony's Pier II locat- ed on the northwesterly edge of the swimming lagoon and consist- ing of approximately 7,500 sq. ft. of public area, and a coffee shop, known as the Sportsman, consisting of approximately 2,000 sq. ft. of public area and located on the easterly side of the lagoon in the area of the current boat - launching facilities; iv) A boat repair business known as "Anchor Marine Repair ", a dry boat storage area with room for approximately 350 boats and a six -lane boat launching ramp; V) A structure, located near Anthony's Pier II, consisting of approximately 1,500 sq. ft. which presently serves as the headquarters and equipment yard for Corporation; and WHEREAS, commencing in 1976, County and Corporation embarked on a process designed to redevelop the property by en- larging, or improving, existing facilities and constructing new facilities. This process culminated, in 1980, with the approval, in concept, of a redevelopment plan for the property which called for the construction of a motel or family inn with 350 rooms, construction of "meeting rooms" with a seating capacity of 400 persons, the construction of four additional coffee shops and snack bars, at least one of which would seat 150 persons, con- struction of 263 additional boat slips, the construction of a "marina village" consisting of approximately 50,000 sq. ft. of commercial and retail development, the construction of approxi- mately 20,000 sq. ft. of facilities described as "marina amenities ", the construction of approximately 12,000 sq. ft. of unspecified, commercial development, the upgrading and enlarging of the recreational vehicle area, and the construction of other development to support the primary uses; 2 J WHEREAS, in February, 1981, the City instituted litiga- tion in response to the approval of County of the redevelopment plan for the property. This lawsuit is presently pending in Orange County Superior Court (Case No. 35- 01 -35) and seeks a declaration of that Court that the approval of the redevelopment plan by County was in violation of provisions of the California Environmental Quality Act (CEQA) and the State EIR Guidelines (Guidelines) promulgated pursuant to that legislation. City, in its complaint, also seeks a declaration of that Court that the property and the proposed redevelopment is subject, in all res- pects, and that any construction on the property must be approved by City and carried out in accordance with the ordinances of City; and WHEREAS, subsequent to the filing of the lawsuit, all of the interested parties have engaged in a collective discussion with the intention of resolving all of the issues and concerns raised by the redevelopment plan and the litigation instituted by City. The development authorized by this agreement, as condi- tioned is provided herein, resolves all of these issues and con- cerns in that: (i) The conditions imposed on the development mitigate, to an acceptable level, any adverse environmental impacts that may result from the construction or use of the facilities to be built; (ii) The restrictions imposed upon the development authorized by this agreement, and the commitments with respect to City approval of future development, are adequate to fully pro- tect the health, welfare and safety of the citizens of Newport Beach; 3 (iii) The commitments contained in this agreement will resolve, with certainty, the issues relative to land use control of the property without the undue expenditure of taxpayers' funds and the uncertainty that would result from continued litigation of those issues; and WHEREAS, it is in the best interests of the City to authorize the Mayor and City Clerk to execute this Agreement. NOW, THEREFORE, BE IT RESOLVED the the Mayor and City Clerk are hereby authorized to execute a Settlement Agreement, which will resolve the litigation commenced by the City regarding the Newport Dunes Redevelopment Plan, allow the redevelopment of the property in accordance with the terms and conditions of the Agreement, and require City concurrence with respect to any fu- ture development. ADOPTED this q4-) day of d , 1983. ATTEST: j5� (a � 1j k �. �,?cP.�?r )Lt,) RSP /Dunes 51 16/ CuQLUN Agri dyor SETTLEMENT AGREEMENT THIS AGREEMENT, entered into this _ day of , 1983, by and between THE CITY OF NEWPORT BEACH, a Municipal Corporation and Charter City, hereinafter referred to as "City ", THE COUNTY OF ORANGE, a political subdivision of the State of California, hereinafter "County ", and NEWPORT DUNES, INC., a California Corporation, hereinafter "Corporation ", and the ORANGE COUNTY HARBOR, BEACHES AND PARKS DISTRICT, organized pursuant to Division 8, Part II of the H & N Code, hereinafter "District ", is made with reference to the following facts, the materiality and existence of which is stipulated by and between the parties hereto: A. Pursuant to the provisions of Chapter 526 of the California State Statutes of 1919, the State of California grant- ed certain tidelands to County, which grant was subject to cer- tain conditions and restraints on the use of the property. These tidelands were regranted by the State to the County, pursuant to the provisions of Chapter 415 of the Statutes of 1975, this grant again subject to certain conditions and restraints on the use of the property. The tidelands referred to in these two grants, together with a small parcel of uplands, is legally described as set forth in Exhibit "A" to this Agreement, and is hereinafter referred to as "the property "; B. County has improved the property with certain pub- lic recreational facilities, including a lifeguard headquarters building and public restroom; C. County has leased the property to Corporation pur- suant to two 50 -year leases which run to May 30, 2008 and February 28, 2015, respectively; D. Pursuant to these leases, Corporation has improved the property such that certain recreational and visitor - serving facilities are now located on the property. These facilities include the following: i) A beach, consisting of approximately eleven acres, together with concessions to serve beachgoers, such as, fast food stands and businesses which rent beach equipment; ii) A recreational vehicle and travel trailer camping area, with 64 spaces fully serviced by sewer, water and K, 0 0 electricity and 80 spaces which are partially served by such utilities; iii) A restaurant known as Anthony's Pier II locat- ed on the northwesterly edge of the swimming lagoon and consist- ing of approximately 7,500 sq. ft. of public area, and a coffee shop, consisting of approximately 2,000 sq. ft. of public area and located on the easterly side of the lagoon in the area of the current boat - launching facilities; iv) Boat and marina - related facilities consisting of approximately 230 slips, a boat repair business, a canvas shop, maintenance storage and a dry boat storage area with room for approximately 350 boats and a six -lane boat launching ramp; V) A structure, located near Anthony's Pier II, consisting of approximately 1,500 sq. ft. which presently serves as the headquarters and equipment yard for Corporation. E. Commencing in 1976, County and Corporation embarked on a process designed to redevelop the property by enlarging or improving existing facilities and constructing new facilities. This process culminated, in 1980, with the approval, in concept, of a redevelopment plan for the property which called for the 3 construction of a motel. or family inn with 350 rooms, construc- tion of "meeting rooms" with a seating capacity of 400 persons, the construction of four additional coffee shops and snack bars, at least one of which would seat 150 persons, construction of 263 additional boat slips, the construction of a "marina village" consisting of approximately 50,000 sq. ft. of commercial and retail development, the construction of approximately 20,000 sq. ft. of facilities described as "marina amenities ", the construc- tion of approximately 12,000 sq. ft. of unspecified, commercial development, the upgrading and enlarging of the recreational vehicle area, and the construction of other development to sup- port the primary uses; F. In Februarv, 1981, the .City instituted litigation in response to the approval of County of the redevelopment plan for the property. This lawsuit is presently pending in Orange County Superior Court (Case No. 35- 01 -35) and seeks a declaration of that Court that the approval of the redevelopment plan by County was in violation of provisions of the California Environ- mental Quality Act (CEQA) and the State EIR Guidelines (Guidelines) promulgated pursuant to that legislation. City, in 4 • 0 its complaint, also seeks a declaration of that Court that the property, and the proposed construction of recreational facilities, is subject to the ordinances of the City and that any construction on the property must be approved by the City; G. Subsequent to the filing of the lawsuit, all of the interested parties have engaged in a collective discussion with the intention of resolving all of the issues and concerns raised by the redevelopment plan and the litigation instituted by City. The development authorized by this agreement, and as conditioned by this Agreement, resolves these issues and concerns in that: (i) The changes in the project, the requirement of City concurrence in any additional development, and the binding nature of this Agreement, mitigate, to an acceptable level, any adverse environmental impacts that may result from the construction of the improvements contemplated by this Agreement. (ii) The development contemplated by this Agreement is in the nature of proprietary activity and the binding commit- ments to obtain City concurrence for additional development, are adequate to fully protect the health, welfare and safety of the citizens of Newport Beach; 5 (iii) The commitments contained in this Agreement will resolve, the issues relative to land use control of the property without the undue expenditure of taxpayers' funds and the uncertainty that would result from continued litigation of those issues. NOW, THEREFORE, the parties hereto agree as follows: I. City, in consideration of the covenants and pro- mises of County and Corporation agrees to development of the property not exceeding that described herein and conceptually illustrated on Exhibit "B ", and provided further, that development may proceed in phases as deemed appropriate by Corporation: A. The construction of a family inn, not to exceed 275 rooms, to be located on the west side of the swimming lagoon subject to the following: 1. The family inn will be designed and constructed with features that will make it attractive to families and these design and construction features shall 2 0 0 include, but not necessarily be limited to, the following: (a) Kitchen facilities in approximately forty percent (40 %) of the units; (b) A room containing recreational facilities and equipment for use by guests of the inn; (c) No permanent audio /visual facilities or equipment are to be integrated into the design. 2. The area immediately adjacent to the family inn shall be designed, improved and maintained such that it is consistent with the concept of a visitor- serving facility attractive to families. 3. The family inn will be constructed in accordance with the Building and Zoning Ordinances of the City of Newport Beach, all as more fully discussed in paragraph III - A below. 7 4. The structure which houses the family inn I i shall not exceed 500,000 sq. ft. of gross floor area as that term is defined by the ordinances of the City of Newport Beach; B. The construction of two additional restaurants, and the expansion of Anthony's Piet II, or a successor restaurant, subject to the following: 1. One of the restaurants is to be a quality dinner house, with a net public area (per City standards, not to exceed 5,000 sq. ft., the restaurant to be sited on the east side of the swimming lagoon; 2. The second restaurant, which will consist of a net public area, (per City standards) no greater than 7,500 sq. ft., shall be designed, maintained and operated such that it serves, principally, the patrons and guests of . the family inn, and special consideration E F shall be given to families and children in the operation of that restaurant; 3. The expansion of Anthony's Pier II shall z t be limited such that the total net public area (per City standards) shall be no greater than 15,000 sq. ft. C. The construction of structures which will house commercial, office or retail tenants, subject to the following: 1. The size of new structures shall not exceed 10,000 sq. ft, of gross floor area; 2. One structure shall. be located near the existing Marina Dunes office building, on the west side of the swimming lagoon and in proximity to the existing boat slips; 3. A second structure shall be located on the east side of the lagoon, near the pedestrian bridge; 2 0 0 4. The tenancy shall be limited to those businesses listed on Exhibit "C" to this Agreement. D. The construction of two meeting rooms with seating capacity not to exceed 100 persons each, one of which will be located on the east side of the swimming lagoon. E. The construction of a structure which will serve as the headquarters for Newport Dunes, Inc., subject to the following: 1. The size of the structure shall not exceed 12,000 sq. ft.; 2. The structure will contain approximately 6,000 sq. ft. of space devoted to office and administrative uses, with the remaining space within the structure to be devoted to parking of equipment, a first aid station and the storage of materials. 10 F. The construction of a recreational vehicle park not to exceed 444 spaces, approximately 808 of which will have full service capabilities including electricity, water and sewer, together with a recreational vehicle support center of approximately 5,000 sq. ft., the center to contain a small convenience store, equipment rental area, recreation room, restrooms and showers, a laundry facility, a storage area and swimming pool, all subject to the following: 1. At least 20 spaces in the recreational �I vehicle park will be reserved for use by those who have not made reservations for space in the park, provided that those 20 spaces may be located in areas without full service capability and, provided further, that the Corporation may accept reservations for those not occupied on or before 3:00 p.m.; 11 • 2. Users of the recreational vehicle park i will have preferential use of the meeting ,i i room constructed on the westerly side of the swimming lagoon. i G. The construction of approximately 200 boat slips, a pedestrian bridge connecting the easterly and westerly portions of the property, and a pump -out station, subject to the following: 1. No boat slips will be constructed in the i mouth of the lagoon, or in the lagoon itself, until such time as the City /County Joint Harbor Review Committee has reviewed and approved a water quality i study which considers the effects of the construction of boat slips on the water quality in the swimming lagoon; 2. Boat slips constructed in the mouth of the lagoon, or within the lagoon itself, shall not accommodate boats exceeding 28 ft. in length; 12 0 0 1 3. Boat slips constructed in the mouth of the lagoon, or in the lagoon itself, shall be designed and constructed to ensure that there is minimal interruption of the tidal flow in and out of the lagoon; 4. Overnight occupancy of boats moored in the mouth of the lagoon, or in the lagoon itself, will be prohibited and all action necessary to ensure enforcement of that prohibition will be taken; S. The pedestrian bridge which is to be constructed across the mouth of the swimming lagoon will be elevated above the water surface, built on pilings, and designed in such a manner as to minimally restrict tidal flows in and out of the lagoon; 6. A pumpout station shall be constructed at a location convenient to boaters with a 13 • i sufficient capacity to service any boat for which slip or mooring space is available on the property. II. Corporation shall retain, and in certain cases upgrade and /or add to certain existing facilities and uses, as follows: A. The existing dry boat storage capacities shall be increased to not more than 400 units, the increase to be accomplished by the construction or installation of a facility that will allow stacking of small boats, the storage facility will be covered and will be administered in a manner that will assure adequate security to private property stored therein; B. Corporation shall re- stripe the existing six - lane launch ramp to ten lanes, and retain, or upgrade, the washdown facilities located in proximity to the launch ramp; 14 C. Corporation shall maintain the existing marine repair facility located in proximity to the boat launch ramp; D. County and Corporation will preserve all of the existing beach area and retain and assure the continuing operation of concessions which serve beach - goers, e.g., boat and equipment rentals, fast food stands, lifeguards, picnic areas, etc. At least 800 parking spaces will be set aside and made available for persons using the beach during the day. E. Corporation shall provide for overnight camping use and all related facilities. III. Corporation, in consideration of the commitment of City to approve the contemplated development as generally described in this Agreement, stipulates and agrees as follows: A. Corporation agrees to design and construct all new development in accordance with the applicable Building and Zoning Ordinances of the City of Newport Beach and, specifically, 15 agree to construct new development in conformance with the following: 1. No structure shall exceed the basic 35 ft. height limit established by Zoning Ordinances of the City of Newport Beach; 2. Parking for all new development will be f in conformance with the parking standards of the City of Newport Beach as set forth in Chapter 20.30 of the Newport Beach Municipal Code; 3. All signs and sign structures shall con- form to the provisions of Chapter 20.06 of the Newport Beach Municipal Code; B. Corporation agrees to contribute the sum of $600,000 to City to be used to construct circulation system improvements to mitigate the traffic impacts created by development of the project, this contribution to be subject to the following: IC 9 0 1. On or before January 1, 1984, County and City shall agree on the specific traffic mitigation measures to be financed by Corporation's payment pursuant to this paragraph and the approximate dates on which construction of the improvements is to commence; 2. The sum of $600,000 represents a contri- bution of $1,500 per room, with the re- mainder of the contribution predicated upon the additional traffic generated by the other development proposed for the property; 3. Payment of the sum of $600,000 shall be made in increments, in accordance with the following schedule: a) The sum of $150,000 to be paid upon issuance of building permits; b) The sum of $150,000 to be paid upon completion of the foundation work for the family inn; 17 c) The sum of $150,000 to be paid upon final inspection of all rough construction, e.g., plumbing, electrical, framing and roofing; and property; and d) The sum of $150,000 to be paid upon issuance of a Certificate of Occupancy. 4. The sum of $600,000 represents the minimum sum that would be required for circulation system improvements to mitigate the traffic impacts identified in the traffic study, prepared by Kunzman & Associates and attached as Exhibit "C" on behalf of Corporation in January, 1983. This contribution is in lieu of compliance by County and Corporation with the City's Traffic Phasing Ordinance; C. Corporation shall construct an interpretive center, to be located near the northeast W 0 I corner of the property, the function of the interpretive center to be the provision of information and educational materials relative to the Upper Newport Bay Ecological Reserve. Educational programs offered by the interpretive center shall be coordinated with the Department of Fish and Game and the interpretive center shall be integrated into a trail system, approved by the Department of Fish and Game, that will allow interested persons access to portions of Upper Newport Bay. D. Corporation agrees to construct a launching area for human - powered and small sailcraft and this launch area shall be of sufficient size to accommodate, at a minimum, the current use of the area for the launching of small sail boats and human - powered craft by members of f non - profit corporations such as the Girl Scouts; 19 0 E. Corporation shall construct a bike trail, the design, width and location subject to the approval by the County's Director of the Environmental Management Agency and the City Engineer, connecting Back Bay Drive with Bayside Drive. No admission or user charge shall be imposed upon persons for use of trail. Bicyclists will be allowed access to the interpretive center. F. Transient occupancy taxes will be imposed upon users of the family inn in accordance with the provisions of Chapter 3.16 of the Newport Beach Municipal Code. Transient occupancy taxes will be collected and processed in accordance with Chapter 3.16 of the Newport Beach Municipal Code, and payment of all transient occupancy tax revenues shall be made to City as provided by the Newport Beach Municipal Code. 20 i i G. Corporation, with respect to any use of the property which requires the payment of any tax or fee, for the issuance of any permit, pursuant to the provisions of Title 5 of the Newport Beach Municipal Code, agrees to pay such fee or tax and /or obtain the required permit and comply with any and all conditions imposed upon the issuance of the permit; H. The following uses of the property shall not be permitted: 1. Skateboard courses; 2. Fireworks displays - except on July 4th and as approved by the Fire Department of City; 3. Small animal or reptile zoo; 4. The use of loudspeakers for paging or announcements outside of any structure provided, however, lifeguards may use such equipment for safety and beach control purposes; 21 5. Amplified music, except in the family inn or other structure, and in no event shall amplified music provided by Corporation, its lessees, licensees or operators of the property, exceed 55 dbs when measured at a point 50 ft. distant from any exterior wall. I. Grading and building permits shall be issued by the City of Newport Beach and may contain appropriate conditions to ensure that construction activities do not adversely I, impact the citizens of Newport Beach. Such conditions may include, but not necessarily be limited, to the following: 1. Designation of specified haul routes; 2. Restrictions on hours of activity; 3. Installation of erosion control facilities to ensure that silt does not enter the Bay from the construction site; 22 n 0 J. Final design of the project shall incorporate the following: 1. A lighting system designed and maintained to conceal the light source and minimize light spillage and glare offsite; 2. The incorporation of water- saving devices; 3. The installation of grease traps in all restaurant facilities; 4. Conformance with energy requirements as specified in Title 24 of the California Administrative Code; 5. Access and fire suppression systems in accordance with the requirements of the Fire Department of the City of Newport Beach; 6. A landscape plan which shall place heavy emphasis on the use of drought resistant native vegetation, irrigated with a sys- tem design to avoid surface runoff on 23 0 0 overwatering, with the landscaping to be installed during the initial phase of construction or as early as practicable once conflicts with other construction activities are resolved. IV. City agrees to provide level of services to Newport Dunes, appropriate to the uses developed on the site and consis- tent with that provided other properties in the City, including, but not limited to, water, fire and police. V. The promises and commitments of the parties as set forth herein, are intended to bind the parties now and in the future. The parties understand that this Agreement is in the nature of a Development Agreement, or a Joint Powers Agreement, and, as such, contains commitments of both City and County suffi- cient to bind future boards and councils, notwithstanding any change in the composition thereof. City and County hereby expressly waive and give up any right to challenge the validity of this Agreement, for any specific term or condition hereof, based upon the contention that the legislative bodies of cities or counties are not empowered to bind future boards or councils, 24 9 0 and each of the parties hereto stipulates that the consideration set forth in this Agreement is adequate to support this waiver. VI. County shall not allow, and Corporation shall not construct, any development on the property exceeding that contem- plated by this Agreement, without the concurrence of the City Council of the City of Newport Beach. Any plan for future development, not contemplated by this Agreement, must be accom- panied by adequate environmental documentation as required by law, and will be processed through the Planning Commission and City Council of the City of Newport Beach in accordance with the provisions of Chapter 20.80 of the Newport Beach Municipal Code. VII. The parties hereto recognize that the approval of the California Coastal Commission and the State Lands Commission, will be required for development of the property, and County and Corporation covenant that, in requesting such approval, they will seek no development in excess of that contemplated herein. City agrees to notify, in writing, all agencies which are required to approve the development contemplated in this Agreement of its support and City will endeavor to appear at public hearings be- fore any Board or Commission reviewing a proposal for such 25 development or any portion thereof, to express its support. To the extent that the California Coastal Commission and /or State I Lands Commission make requirements upon County and Corporation not set forth in, or at variance with, the provisions of this Agreement, County and City agree to accept and incorporate as amendments to this Agreement all said changes and /or variances, so long as said changes and /or variances do not expand or increase the concentration, intensity or density of the development of the project as contemplated by this Agreement or change the nature of the land uses described herein. All parties i understand that this Agreement is intended to establish the limits of development and not to guarantee construction or development. City understands and agrees that any of the development contemplated by this Agreement, and any of the f revenues or contributions which may be required pursuant to this Agreement, are contingent upon County and Corporation negotiating a satisfactory lease of the property. County and Corporation shall endeavor to notify City of any public hearing or meeting which may relate to the development contemplated by this Agreement at least ten (10) days prior to the date of such 26 • meeting or hearing. Agreement. Notice shall be given as provided in this To City: City Attorney City of Newport Beach 3300 Newport Blvd., Newport Beach, California 92663 To County: Director, Orange County Environmental Management Agency 811 No. Broadway Santa Ana, California 92702 To District: Director Orange County Harbor, Beaches and Parks District Santa Ana, California 92702 To Corporation: Newport Dunes, Inc. C/o Lawrence H. Buxton Courton & Associates 2061 Business Center Dr. #203 Irvine, California 92715 VIII. This Agreement is in furtherance of a plan for redevelopment of the property. County and Corporation seek to transform underused portions of the property to their economic advantage by constructing visitor - serving facilities of greater intensity than now exist. City seeks to obtain certain offsite benefits, including, among others, circulation system 27 i i 0 0 improvements. All parties agree and recognize that it will not be practical to restore this property to its previous state once any significant portion of the contemplated development is undertaken. The parties hereto have made significant and irrevocable commitments and have each given up certain rights and powers in order to achieve this agreement. The parties agree that damages would not be an adequate remedy for the failure of one of the parties to carry out its obligations under this Agree- ment, both because the property and this Agreement are unique, and because it would be very difficult to estimate the amount of damages which could, or would, properly compensate the other parties in the event of such failure or breach. Thus, the parties agree that specific performance, rather than damages, is the only remedy which would adequately compensate the other parties in the event of the failure of one party to comply with its duties and obligations as set forth in this Agreement. IX. City and County shall annually review the parties' performance of this Agreement. At its first meeting of each calendar year, the Joint Harbor Review Committee shall review the 28 • performance and implementation of this Agreement, prepare a i report and provide copes of the report to the City Council and County Board of Supervisors. In connection with such review, each party shall have a reasonable opportunity to discuss matters which it believes have not proceeded in accordance with this Agreement, to receive from the other party information relating to its position on such matters and shall seek to resolve such matters by negotiation. X. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns. XI. No modification, amendment or other change in this Agreement or any provision thereof shall be affected for any purpose unless specifically set forth in writing and signed by a duly authorized representative of the parties hereto. Executed the day and year first above written. CITY ATTEST: City Clerk APPROVED AS TO FORM: City Attorney By: Mayor City of Newport Beach 29 L APPROVED AS TO FORM: County Counsel COUNTY OF ORANGE By: The Chairman of its Board of Supervisors DISTRICT ORANGE COUNTY HARBORS, BEACHES AND PARKS DISTRICT By: The Chairman of its Board of Supervisors CORPORATION NEWPORT DUNES, INC, A California Corporation ByO -- - — - - - 30