HomeMy WebLinkAboutPA2004-169_CORRESPONDENCECITY OF NEWPORT BEACH
COMMUNITY DEVELOPMENT DEPARTMENT
Planning Division
August 26, 2011
Carol Mentor McDermott
Government Solutions, Inc.
1 San Joaquin Plaza, Suite 230
Newport Beach, CA 92660
RE• Santa Barbara Condos — 900 Newport Center Drive, Newport Beach
Substantial Conformance Determination
Dear Ms. McDermott.
On June 30, 2011, the City of Newport Beach Development Review Committee
(DRC) considered a request made by Government Solution, on behalf of The
New Home Company, for minor changes to the site plan and elevations that were
approved by the City Council in January 2006, for the development of 79
condominiums known as the Santa Barbara Project located at 900 Newport
Center Drive, in Fashion Island The minor changes are necessary as a result of
1) an agreement with the Newport Beach Country Club, and 2) minor changes
necessitated by the new ownership. The proposed modifications include the
following:
• Project to be built in two phases: 26 units with commensurate parking in
Phase I and 53 units with commensurate parking in Phase II.
• Elimination of the westerly driveway entrance to the parking garage.
• A slightly revised configuration of the main entrance to accommodate
improved dual access into the subterranean parking with a minor shifting
of the driveway to the west.
• Revisions to the grading plan to accommodate the improved entry drive
access, to address the proposed phases and provide for temporary use of
the Phase 2 site for a modular sales office utilizing a portion of the existing
on -site parking There will be a reduction in the amount of material
exported from the site of approximately 9000 cubic yards. There will be
no construction of any units on the Phase 2 portion of the site during
Phase 1.
3300 Newport Boulevard • Post Office Box 1768 • Newport Beach, California 92658-8915
Telephone: (949) 644-3200 • Fax: (949) 644-3229 • www.newportbeachca.gov/planning
Carol Mentor McDern.,utt
Government Solutions, Inc.
Page 2
® Adjustment of the most westerly building (Building 3) with a slight move to
the west, slight shifts and adjustments on the other.. buildings to
accommodate minor revisions to the unit floor plans and modification of
the subterranean parking to combine the .two structures into one parking
structure with two access points from the main entry. The subterranean
parking will be constructed in two phases.
® An enhanced open space/recreation area between Buildings 2 and 3.
® Improved on -site pedestrian circulation.
® Deletion of all external catwalk structures and the provision of shared
elevators providing direct access between the subterranean garage and
the units.
® Minor revisions to exterior elevations.
The DRC found the proposed modifications are minor; do not affect the overall
project design, building placement and height, development intensity, traffic and
pedestrian circulation and therefore, determined the site plan is in substantial
conformance with the original approval.
Sincerely,
R.salinh M. Ung
A sociate Planner
Substantial Conformance Request
Santa Barbara Condos (9Oo Santa Barbara) (PA 2004-169)
August 16, 2011
On behalf of the new purchaser of the tennis courts site adjacent to the Newport
Beach Marriott, a determination of Substantial Conformance is being requested
for minor revisions to the site plan as approved by the City Council in January,
2006, and the CDP as approved by the California Coastal Commission on
September 5, 2007 with subsequent extensions through September 5, 2011. A
further extension of the CDP will be requested of the Coastal Commission prior to
the expiration in September.
The project is an approved 79-condo project located at 90o Santa Barbara,
Newport Beach on the site of the Newport Beach Marriott Tennis Courts.
(PA2oo4-169)
The proposed changes were reviewed by the DRC on June 30, 2011 and
subsequent meetings have been held with both Traffic and Fire Departments.
The minor changes are a necessary as a result of 1) an agreement with the
developer and the Newport Beach Country Club, 2) minor changes necessitated
by new ownership and 3) response to City staff requests. The support for the
revisions from Fire and Traffic has been documented in memos directed to
Rosalinh Ung.
Minor project changes include the following:
Project to be built in two phases• 26 units with commensurate parking in Phase I
and 53 units with commensurate parking in Phase II
Elimination of the westerly driveway entrance to the parking garage
A slightly revised configuration of the main entrance to accommodate improved
dual access into the subterranean parking with a minor shifting of the driveway
to the west
Revisions to the grading plan to accommodate the improved entry drive access, to
address the proposed phases and provide for temporary use of the Phase 2 site
for a modular sales office utilizing a portion of the existing on -site parking. There
will be a reduction in the amount of material exported from the site of
approximately 900o cubic yards There will be no construction of any units on
the Phase 2 portion of the site during Phase 1.
Adjustment of the most westerly building (Building 3) with a slight move to the
west, slight shifts and adjustments on the other buildings to accommodate minor
revisions to the unit floor plans and modification of the subterranean parking to
combine the two structures into one parking structure with two access points
from the main entry. The subterranean parking will be constructed in two phases
as well.
An enhanced open space/recreation area between Buildings 2 and 3
Improved on -site pedestrian circulation
Deletion of all external catwalk structures and the provision of shared elevators
providing direct access between the subterranean garage and the units
Minor revisions to exterior elevations
The plans confirm that the building heights are in substantial conformance with
the previous approval and do not exceed the 65 height limit (see attached
description of height calculations), the FAR will not exceed 1.9 and the changes
are in conformance with the CDP as approved by the Coastal Commission.
Ung, Rosalinh
From: Brine, Tony
Sent: Thursday, August 18, 2011 8:12 PM
To: Ung, Rosalinh
Cc: 'Carol McDermott'; Keely, David
Subject: RE: Santa Barbara Condos - Garage Layouts
Rosalinh;
With the revisions, the project is in substantial conformance. Tony
From: Chris Hoover [mailto:choover@mve-architects.com]
Sent: Thursday, August 04, 2011 2:11 PM
To: Keely, David; Brine, Tony
Cc: Carol McDermott; Jean Pitts; Darin Schoolmeester
Subject: RE: Santa Barbara Condos - Garage Layouts
Dave,
I have added the 5' dimension before the gated parking area to the garage plan per your comment. Please let me know
if you have any questions.
Thank you
Chris Hoover
Associate
MVE & Partners, Inc. I Architecture + Planning + Interiors
Irvine + Oakland + Honolulu
1900 Main Street, Suite 800 I Irvine, California 92614-7318 I T 949.809.3388 I www.mve-architects.com
kE/7443 Please consider the environment before printing this email and/or any attachments
From: Keely, David fmailto: DKeelv@newoortbeachca.govj
Sent: Wednesday, August 03 2011 1:08 PM
To: Chris Hoover; Brine, Tony
Cc: Carol McDermott; Jean Pitts; Darin Schoolmeester
Subject: RE: Santa Barbara Condos - Garage Layouts
Chris,
The only minor comment that I have regarding the plans provided last week is the 5 foot hammerhead area shall be
provided prior to the gated parking area. See the attached pdf which includes my comments. Other than that the plans
address our previous comments. Thanks
Dave Keely
1
From: Chris Hoover Jmailto:choover@mve-architects.coml
Sent: Tuesday, July 26, 2011 4:50 PM
To: Keely, David; Brine, Tony
Cc: Carol McDermott; Jean Pitts; Darin Schoolmeester
Subject: Santa Barbara Condos - Garage Layouts
David and Tony,
Per your request, we have made the following revisions to the conceptual parking garage layout plans for the Santa
Barbara Condominium project.
• Aligned the two vehicular garage entries with each other
• Provided space for the minimum turning requirements for a car turning right from the entry drive into
the garage
• Removed islands at the security gate areas
• Provided and dimensioned 5' minimum turnaround areas at all dead end areas in the parking garage
Please find the attached PDF showing the revised conceptual drawing. Let us know if you have any questions regarding
the drawings.
Thank you.
Chris Hoover
Associate
MVE & Partners, Inc. I Architecture + Planning + Interiors
Irvine + Oakland + Honolulu
1900 Main Street, Suite 800 Irvine, California 92614-7318 ( T 949.809.3388 I www.mve-architects.com
IA Please consider the environment before printing this email and/or any attachments
2
Ung, Rosalinh
From: Gamble, Ron
Sent: Monday, August 22, 2011 8:08 AM
To: Ung, Rosalinh
Cc: David Oatis; 'Carol McDermott'; Stephen Jordan; Guzzetta, Susan
Subject: Updated Santa Barbara Condominiums Project substantial conformance
Good Morning Rosalinh,
As a follow up to the DRC meeting on June 30, 2011, I met with representatives of the New Home Company
and David Oatis of Fire Safe Planning Solutions, regarding the Santa Barbara Condominium project located
next to the Newport Beach Marriott.
1 reviewed the previous plans, comments made by previous Fire Marshal Steve Bunting in 2008, and the
responses prepared by Fire Safe Planning Solutions, the applicant and their architect.
I find their request to be in substantial conformance with the previous approval by the Planning
Commission and City Council.
Note for the record, the Fire Department will require and the applicant has agreed to the following when the
construction drawings for the project go through plan check:
1. An NFPA Full 13 automatic fire sprinkler system will be installed throughout the project.
2. Access gates to the rear of the building (along the golf course) will be provided for fire department and
maintenance access use only.
3. Remote fire department connections will be strategically placed along the fire access roadway.
4. Way finding signage will be provided at the rear of the building access gates.
5. 5' wide fire access walkways will be provided at the rear of the building with designated fire
department ground ladder access points. No residential access will be allowed on this walkway.
6. Way finding signage will also be provided throughout the project for direction to units.
7. Additional 2-hour fire barrier separation walls will be provided to isolate the building and. prevent the
spread of fire.
8. Class 1 wet standpipes will be provided along the rear of the building along the golf course and be
spaced a maximum of 150' apart.
9. All elevators will be able to accommodate emergency gurneys with a 3,500 lb capacity.
10. A fire department information room will be provided which will contain building floor plans, electrical
plans, fire sprinkler plans, alarm panels and building keys.
11. The main access turnaround shall meet the NBFD guidelines for emergency access.
12. Fire Department shall have input on building addressing.
1
13. Other code requirements, in addition to those listed, may apply when plans are submitted.
Let me know if you have any questions,
Ron Gamble
Newport Beach Fire
Division Chief/Fire Marshal
Safety, Service & Professionalism
RECEIMAFTER AGENDA
PRINTED:" 1-JD -06
'06
%i -) :19
HAND DELIVERED
January 5, 2006
Don Webb, Mayor
City of Newport Beach
3300 Newport Blvd.
Newport Beach, CA 92663-3884
Re: Lennar Homes of California, Inc.("Lennar"): Proposed Santa Barbara Condominium
Project
Dear Mayor Webb:
As you may know, Lennar has proposed a residential condominium project adjacent to
the Newport Beach Country Club. The Newport Beach Country Club, Inc. ("NBCC") is
the ground lessee of the real property on which the golf club operates. The purpose of
this letter is to apprise you of communications between NBCC and Lennar regarding
their Project. As set forth in the attachments, on November 29, 2005, representatives of
Lennar and NBCC met to review the Project and to discuss NBCC's concerns regarding
safety and aesthetics. That meeting was followed by an exchange of correspondence
regarding these issues and the parties respective positions. Copies of letters from NBCC
to Lennar dated December 6, 2005 and December 28, 2005 are attached hereto for your
information.
The parties were to have met on January 5, 2006 to further discuss their respective
positions, but that meeting has been cancelled by Lennar. While it is NBCC's hope that
the issues set forth in the attached correspondence will be addressed by Lennar and
resolved to the mutual satisfaction of NBCC and Lennar, please be advised that for the
reasons set forth in the attached correspondence NBCC presently opposes the Project as
NEWPORT BEACH
(: ) (' N T It I" C I. r
1600 East Pacific Coast Highway • Newport Beach, California 92660 • (949) 6119550 • Fax (949) 644 5057
Mtn: // vww..newoortbeachcc.com
Page Two
To: Mayor Don Webb
currently planned. Should further meetings and/or discussions between Lennar and
NBCC cause NBCC to alter this position, I will be notifying you in writing.
Sincerely,
Jerry Anderson
President
Enclosures
C: David Wooten, CEO
Jerry Johnson, CFO
CHRISTIAN F. DURIA, JR.
WRITER'S E-MAIL ADDRESS
cdubia@detrlaw.com
DUBIA, ERICKSON, TENERELLI & RUSSO, LLP
ATTORNEYS AT LAW
2 PARK PLAZA, SUITE 300
IRVINE, CALIFORNIA 92614.8513
TELEPHONE: (949) 955-1177
FACSIMILE: (949) 833.2067
rrw.detrlaw.com
OUR FILENO
16001.00
December 6, 2005
Renetta A Caya, Esq.
Palmieri, Tyler, Wiener, Wilhem & Waldron, LLP
2603 Main Street, Suite 1300
Irvine, California 92614-6228
Re: The Newport Beach Country Club and Lennar Homes
Dear Renetta:
On behalf of Dave Wooten, Jerry Johnson, Jerry Anderson, Ted
Robinson, Jr. and myself thanks again to you and your clients for meeting with us
on Tuesday, November 29, 2005 to discuss Lennar Homes' ("Lennar ') proposed
residential condominium project in Newport Beach adjacent to The Newport
Beach Country Club ("NBCC")
At that meeting, Donna Kelly and George Telles presented an
overview of the proposed project and Chris Heidrrck reviewed the landscape plan.
Dave Wooten reviewed with you the concerns of NBCC regarding safety issues
associated with a residential development in such close proximity to the golf
course. Specifically, there is a significant risk of harm posed to persons and
property from errant golf balls from the golf course.
A copy of an article from the Urban Land Institute entitled 'Golf
Course Development and Real Estate" by Desmond Muirhead and Guy L. Rando
was provided to Ms. Kelly. I have enclosed another copy of that article for your
reference. The article discusses the safety issues and design standards for real
estate development in proximity to golf courses.
Renetta A. Caya, Esq.
Palmieri, Tyler, Wiener, Wilhem & Waldron, LLP
December 6, 2005
Page 2
The safety issues associated with Lennar's proposed residential
project are very serious in the judgment of our golf course architect, Ted Robinson,
Jr. Enclosed please find a letter from Ted Robinson, Jr. which summarizes his
opinions and conclusions regarding these safety concerns as well as aesthetic
issues.
At the conclusion of our meeting, Donna Kelly requested that NBCC
establish the design parameters and conditions which NBCC believes to be
necessary for NBCC to not oppose the proposed development. Those are set forth
below:
1. The current plans, presented at our meeting, contemplate a
walkway/path along the perimeter of the project and adjacent to the golf course
boundary with limited fencing. It was represented that the purpose of the
walkway/path was for emergency access of firefighters. NBCC has significant
concerns that residents and guests will utilize this walkway and increase their
exposure to bodily injury from errant golf balls. NBCC would require that Lennar
install fencing at a height of at least five feet to restrict access to the walkway/path
to only emergency personnel and to restrict trespassing on NBCC property.
2. The current plans contemplate the construction of patios on the
ground level and balconies on the upper levels of the project NBCC would
require a redesign that eliminated all outside patios and balconies due to the risks
associated with errant golf balls The type of glass installed in the units should be
shatter proof and capable of withstanding significant blunt force without breaking.
3. The current plans contemplate an open, public area with a
seating area between the first two buildings fronting the golf' course. NBCC would
require that this open area be eliminated or landscaped and fenced in such a
manner so as to prevent owners and guests from congregating or walking in this
area. It is in very close proximity to the No. 2 green and well within the landing
area of errant golf balls.
4. NBCC would require that netting be installed along No. 2
fairway/green and along No. 3 fairway in the areas affected by errant golf balls and
additional landscaping, including trees, associated with such netting installed to
protect against errant golf balls damaging the property or injuring persons at the
project. Ted Robinson, Jr. has received a proposal from a netting subcontractor to
Renetta A. Caya, Esq.
Palmieri, Tyler, Wiener, Wilhem & Waldron, LLP
December 6, 2005
Page 3
perform a trajectory study (which will take 3-4 weeks to perform at a cost of
$3500) to determine the location and specifications of the required netting. The
costs of such netting and landscaping, including consultant fees and studies, would
be paid for by Lennar. We will await Lennar's written authorization before we
proceed with the trajectory study.
5. To the extent that the course may be modified to reduce the
potential for errant golf balls landing on the project, NBCC may consider
implementing such modifications to the course to mitigate the risk. The costs
associated with any course modification, including any plantings and/or
landscaping, would be paid for by Lennar.
6. NBCC will require Lennar to enter into an Indemnity
Agreement, in the form attached hereto, which includes a Declaration of Golf Ball
Easement, along with the provision of liability insurance coverage. Lennar would
be responsible for all costs associated with this Indemnity Agreement and related
documents, including reimbursing NBCC for the legal expenses incurred in
preparing and finalizing the agreement.
In conclusion, as stated by Dave Wooten at our meeting last Tuesday,
it is unfortunate that Lennar did not consult with NBCC earlier and prior to going
forward with its preliminary plans. The safety issues should have been apparent to
Lennar s design consultants. As you may know, NBCC has operated a golf course
at its present location for over 50 years. With such an operating history, the
likelihood of errant golf balls landing on Lennar's Project is a 100% certainty.
Lennar's Project falls squarely within the historical landing area of these errant
golf balls. Given the substantial number of rounds of golf played each year it is a
certainty that hundreds of golf balls will land in the area of your residential project.
Without these design parameters and conditions being met, the risk of
serious bodily injury and property damage is unacceptably high. NBCC and its
owner, members, guests and invitees should not be subjected to risk of lawsuits by
owners, guests or third persons situated at Lennar's Project. Nor should Lennar
expose itself or its contractors, subcontractors, vendors, suppliers, consultants or
employees to such lawsuits or injuries while visiting or working on the Project. I
am sure you would agree that our number one concern should be safety. For that
reason NBCC cannot support and will actively oppose your development unless
these design parameters and conditions are met.
•
Renato A. Caya, Esq.
Palmieri, Tyler, Wiener, Wilhem & Waldron, LLP
December 6, 2005
Page 4
After receipt of Lennar s written authorization and completion of the
trajectory study, and review by Ted Robinson, Jr., we will forward additional
information to you regarding the location, specifications and costs associated with
the netting and associated landscaping. We hope this information satisfies your
request. Should you have further questions or wish additional information, please
contact me at your convenience.
CFD:sd
Enclosures
16001.00/cfdcayaltr.doc
Very truly yours,
Go f Course
eVe opment
acid
Rea Estate
Desmond Muirhead
and
Guy. L. Rando
the Urban Land Institute
The view from the third floor of the Princess. Hotel in Scottsdale, Arizona, illustrates
the course's visual access.
Prime Golf and
Water Frontage
MU Golf Fairway
Frontage
PA Open Space
Golf Access
O Interior Lot
A
A typical diagram used for analyzing real estate premiums.
Source: Demand Afuirhead, inc.
ferred. This combination provides the
preferred length for the golf course
with moderate flexibility in operations
and maintenance and maximum golf
frontage for real estate development.
Land use plans that are designed
• merely to maximize golf frontage do
not necessarily maximize overall real
estate values. A number of other factors
must be considered when integrating
golf and real estate. The single -fairway,
returning nines configuration for an
18-hole golf course is ideal for maxi-
mizing golf frontage and therefore
maximizing the opportunity to en-
e hence real estate values. In some
cases --a hotel resort or high -density
development, for example —where
real estate values are enhanced by
views of the golf course from a high-
rise building rather than actual front -
u age, a core course might provide
greater advantages.
Whatever strategy isusedto place
a value on golf -oriented real estate,
valuation must consider local market
factors. Comparative marketability
studies can aid in determining real es-
tate values and which pricing strate-
gies yield the best results in a particu-
lar location.
Safety in the Golf Corridor
One of the most significant factors to
consider in delineating the golf corri-
dor is safety. Like many sports, golf is
not inherently safe. A well -hit golf
ball can reach an initial velocity of
250 feet per second or over 170 miles
per hour, and a range of 250 yards or
more. The golf ball thus has the poten-
tial for greater speed and range than a
bullet from a shotgun, and the poten-
tial for injury can be considerable. This
factor is augmented by the wide range
of physical and psychological variables
inherent in any golf course and the
range of players' abilities. Golf is not
easily mastered, and even the most
accomplished players can hit a ball
poorly. People have been seriously,
even fatally, injured by errant golf
balls, golf clubs, and golf cars. Being
on a golf course during an electrical
storm has resulted in many players' be-
ing struck by lightning. And the threats
are not confined to golfers: pedestri-
47
This relationship between fair vay and lot should be avo ded, because most golfers are
right-handed and tend to slice the ball to the right.
Source: DesmondMuirhead, ine.
Thg preferred relationship between fairway and lot allows holes to "slice" into each
other rather than into houses.
Source: DesmondMuirhead, lne.
ans and motorists walking or driving by
a course have been struck by errant
.golf balls. Golf, like life, is a challenge
with risks. Thus, safety is a critical
concern to anyone involved in the de-
sign, development, construction, main-
tenance, and operation of a golf course,
or to anyone charged with responsibil-
ity for the safety of people on or near
the course, or to anyone who could be
injured or suffer damages from golf.
To design a totally risk -free, "safe"
golf course is impossible, because nu-
merous factors simply are beyond the
control of the designer: the climate,
the weather, the ability and skill of in-
dividual players. Even if a list of safety
criteria could be determined for the
design of a totally "safe" golf course,
the cost of building such a course
would be prohibitive. It is possible,
however, to anticipate a few factors
that can present an undue hazard.
And it is possible to find economically
feasible ways to mitigate the danger.
No hard and fast rules can be asso-
ciated with safety in golf course design
simply because the range of variables
from course to course, hole to hole,
and even player to player is so vast.
The increasing integration of golf
courses with adjacent real estate re-
sults in conflicts in land use, and
safety becomes a greater concern. To-
day, all areas of the golf course indus-
try, including owners, developers, de-
sign professionals, operations and
maintenance personnel, managers,
material suppliers, equipment manu-
facturers, and individual players,
must address it. Further, technical ad-
vances in the design of golf balls and
golf clubs have translated into greater
speed and distances, with the atten-
dant greater potential for danger from
poorly hit balls or slices, hooks, and
shanks. All of these factors have influ-
enced the way golf courses are designed
today, and a prudent developer would
keep the following points in mind:
• Recognize and understand that
land planning and the design of golf
courses are intricately related to
each other.The potential impact of
one on the other can significantly
enhance or diminish the value of a
golf -oriented real estate development.
■ The developer or its agent is in-
volved as a key member in planning
and design.The integration of vari-
ous disciplines is ultimately the de-
veloper's responsibility.
• Regular safety reviews are part of
the planningprocess.Additional re-
views are required after any major
change. Safety reviews should be -
made part of standard operating
procedures, and they should involve
all members of the design team.
• Recognize that safety is ongoing. In-
clude allowances for fine-tuning
play of the course in the budget to
address any unanticipated issues af-
ter the course is put into play.
"Golf course safety" is a relative
term, requiring judgment based on
some mutually agreed criteria. The fol-
lowing brief overview summarizes a
few basic, common-sense criteria for
safety in designing golf courses.' The
design standards developed from
these criteria or from the consensus of
experienced designers and developers
serve only as guidelines and must be
weighed case by case for specific sites.
• Golfers must use reasonable care
commensurate with the known haz-
ards inherent in the game?
■ Golfers assume reasonable risk.3
• The design of the golf course should
reflect standards that do not expose
golfers to undue risk.4
■ The public has a right to free and
unmolested use of the highways.
Golf balls landing on or across a
highway render the owner liable for
maintaining a public nuisance that
resulted in injuries from the hazard-
ous condifion.s
• A golf ball in flight beyond the perime-
ter of the golf course is the same as
48
an object falling from a structure,
and the liability is comparable 6
• A pivotal standard cited in many
court cases renders a Liability if the
possibility of an accident was clear
to the ordinarily prudent eye.?
■ Golf -related restrictions on adjacent
private property are justifiable for
reasons of safety. It is therefore rea-
sonable to restrict the use of private
property (building setback lines
and so on) adjacent to a golf course.
■ Owners of houses and other real es-
tate fronting a golf course assume
more risk than the public on a high-
way but less risk than golfers. The
homeowner's uninformed and un-
suspecting guests are not included,
however.
is Spectators at a golf tournament as-
sume more risk than homeowners
but less risk than golfers.
J Fgal terms like "reasonable care,"
"reasonable" or "undue" risk, "fore-
seeable" hazards, and "ordinarily pru-
dent eye" provide criteria for defining
and judging safety and for allocating
liability. Beyond these legal concepts,
however, no measurable design stan-
dards can be applied in a blanket for-
mula that satisfies legally defined cri-
teria for safety.
The standard 300-foot through -
the -green width that became a rule of
thumb in design of a single -fairway
layout during the 1960s and 1970s is
seriously outdated in terms of current
safety concerns. It was rationalized by
two concepts:
■ The average golfer who hit a ball
poorly (did not follow the ideal path
as reflected by the centerline) did
not hit the ball as forcefully as pos-
sible; therefore, the ball would not
travel as fast and as far as it might.
• The farther away from the center-
line, the less force powering the
ball, and therefore the ball will
travel even less distance.
In the double -fairway layout, the
rule of thumb was that, where possible,
the parallel centerlines should be no
fewer than 200 feet apart. These dimen-
sional standards are now outdated,
however, with the advent of new tech-
nology and new designs for golf equip-
ment (particularly golf clubs) to gain
more distance and the desire of many
golfers to "smack the ball" as far as
they can without regard for safety.
457 Saw_
_—. Minimum Sete $oWack wr w
35'BDense Carer Emua,Co
SO Iftbrirect&k4Cw. or brwv
Outdated 1970s singlefairwaystandards.
Courtesy: Patrick Shane Mulligan.
The standards of the 1960s and
1970s were coupled with caveats to
consider such factors as topography,
vegetation, elevation, temperature, hu-
midity, wind, location of hazards, and
elevated features like tees and greens.
They are still critical, but safety is not
a cookie -cutter process. Defining pa-
rameters for safety on a golf course
could be a major issue confronting to-
day's golf course developers, and any
member of the team could make a de-
cision that would directly affect safety.
Golf integrated with real estate devel-
opment requires the establishment of
a team to review every stage of plan-
ning and design. The temptation to
encroach on the safety perimeter for
the golf course to gain frontage for
real estate, enhance real estate values,
or economize on the golf course is al-
ways considerable, and it is height-
ened by the fact that contemporary
golf courses require substantially
larger areas of land to accommodate
safety in an age of high-tech equip-
ment. Golf course architects and land
planners must work with the develop-
ment team to resolve the problems in-
volved in siting a golf course next to
real estate. The professional expertise,
knowledge, and experience of every
member of the design team must be
applied toward ensuring that the pub-
lic is not exposed to undue risk. In a
society prone to litigation, it is in the
best interests of any development pro-
ject to establish the best standards
and criteria for safety. Because design
and construction often span long peri-
ods of time, the intent of the design`
and safety considerations developed
during the planning process should be
carefully documented to ensure that it
is not compromised by later decisions.
The Safety Perimeter
Defining the safety corridor for a golf
course is not necessarily synonymous
with establishing the boundary of the
golf course, although the two can be
related. The following definitions are
used in this text. The golf course
boundary is the legal description of
the property boundary for that area of
land dedicated to the golf course and
its facilities. If the operation were to
be sold, this legal description would
be used to describe the property in the
sales documents. The golf course
safety corridor is that area of land re-
quired to play the game plus the area
of land that can be affected or threat-
ened by golfing such that limits are
placed on the use of that area. For ex-
ample, the golf course safety corridor
might include the area within the golf
course boundary plus an area around
that boundary where construction of
any buildings is restricted (often
called a building setback line or build-
ing restriction line). The restrictions
on use within the setback area must
be clearly stated in legal documents (
(covenants, for example) describing
the affected properties.
Largely because of legal implica-
tions, professionals and their atten-
dant organizations have been reluc-
tant to adopt any specific written
criteria for golf course safety corri-
dors. The official approach of the
American Society of Golf Course Ar-
chitects (ASGCA) is verbal and very
general, and strongly emphasizes site -
specific criteria. The prudent course
of action is to contract with an experi-
enced, reputable golf course architect
early during the planning process.
The following dimensions for the
golf course safety corridor are provided
solely to illustrate this discussion; they
are not to be applied arbitrarily. The
dimensions are based on an unre-
stricted flat site, and they must be ad-
justed to accommodate site -specific
features like topography, vegetation,
and elevation. Applicable local building
and land use regulations could pre -
elude the use of any dimension used
in the illustrations, and this informa-
tion is not a substitute for consultation
49
1501
Mlnlmum clearance between the green and the next tee.
Minimum clearance between adjacent tees and greens.
Building Setback Line
Minimum dimensions for a single -fairway golf corridor.
..........
Minimum dimenslons for a double -fairway golf corridor.
Minimum safety guidelines for a windless site on flat topography. Other conditions re-
quire additional clearances. - - Source: Nicklaus Design.
with a qualified, experienced golf
course architect.
■ Minimum horizontal clearance be-
tween the green and the next tee is
150 feet. If the adjacent green and
tees are separated by a change in
elevation, the distance might be
greater or less.
■ Minimum clearance between adja-
cent tees and greens is 150 feet.
■ Adjacent landing areas should be no
less than 200 to 250 feet apart
(from centerline to centerline).
■ The centerline of a golf hole should
be no less than 150 feet from any
road right-of-way or boundary.
■ The centerline of a golf hole should
be no less than 175 feet from any
boundary with adjacent develop-
ment. A setback of no less than 35
feet from the boundary line should
also be added.
■ The minimum safety corridor for a
single -fairway course with develop-
ment on both sides of the fairway is
420 feet between any building in the
landing and greens areas. The mini-
mum safety corridor for a course
with surrounding development in
other than the landing and greens
areas is 370 feet, which allows for a
300-foot corridor with 35-foot
building setbacks on either side.
■ On a double -fairway course, the cen-
terlines of parallel fairways should be
no less than 200 to 225 feet apart in
wooded areas (where vegetation is
present between the fairways) and
no less than 250 feet apart in open
areas (no buffering vegetation be-
tween fairways). Adding a mini-
mum of 150 feet from each center-
line to the property line yields a
minimum corridor of 500 to 550
feet for a double -fairway course. If
the course is surrounded by develop-
ment, a building setback of 35 feet
from the property line on either side
yields a total minimum safety corri-
dor of 570 to 620 feet. The safety
corridor can be narrower in the area
between the green and the next tee —
approximately 400 feet (a 100-foot
buffer off the center point of the tee,
a 150-foot minimum on the green's
centerline, and 150 feet between the
green and the next tee).8
50
•
ROBINSON GOLF, INC.
361 FOREST AVENUE, SUITE
LAGUNA BEACH, CA 92651
TELEPHONE (949) 376-7002
FASCIMILE (949) 376-7029
December 1, 2005
Mr. Jerry Anderson
Newport Beach Country Club
1600 East Pacific Coast Highway
Newport Beach, CA 92660
Re: Meeting with Lennar
Dear Jerry,
In an effort to follow up on the recent meeting with Lennar, I thought I'd write for the
purpose of sharing some general observations. Overall, I believethere are two main
issues with the development as presently proposed: safety and aesthetics. I will consider
each of these topics separately.
Safety
The principal issue with the proposed development is safety. Newport Beach Country
Club was built over fifty years ago, well before today's safety guidelines were quantified.
Despite equipment changes, it has continued to operate safely as a result of' its focus on
minimizing the potential of someone being hit by an errant golf ball. However, the
Lennar proposal will place a greater number of people at risk due to its close proximity to
the golf course. At the number two green, the edge of the building is only 90 feet off
center line, Less than half the 210 foot recommended setback in most similar situations.
Buildings along the third fairway also do not meet current setback requirements. As
such, it is inevitable the structures will be repeatedly hit by errant golf balls on a regular
basis.
Of course, the.buildings are not the real issue —a golf ball hitting concrete and steel is a
nuisance, but does not cause injury. I'he real issues are the pathways running along the
golf course, the open balconies facing the golf course, and the outdoor use of the central
patio area, _Each of these areas invites people to use and congregate in areas of a known
hazard. Lennar asked if there weren't ways of moderating those risks through design
change. Certainly, I would agree that fencing the pathway, eliminating the balconies and
changing the use of the patio area will help, but are not in and of themselves, sufficient to
fully mitigate the hazard. The glass would have to be shatter proof, the fences high
enough to discourage access, and the maintenance of the common area adjacent to the
Lennar Meeting
December 1, 2005
Page 2
course assumed by the club to insure only its people are working in those areas. Even
then, the hardened surfaces of the buildings will cause the ball to ricochet into other areas
of the project in unpredictable ways. I do not believe there is any ability to fully
eliminate the risk of golf balls entering the site other than by fencing.
Aesthetics
Although not nearly as important as safety, aesthetics are also a concern. The four story
buildings located along the third fairway will create a rather imposing mass — at almost
60 feet, their position 20 feet above the fairway will feel like an eightstory building
directly next to anyone playing the hole. However the three story building next to the
second green is of greater concern. Given its location 90 feet off centerline and the fact it
angles into the green, the building cannot help but create an overwhelmingly intrusive
impact on the hole. While plantings might mute the impact a little, I cannot help but feel
the hole will seem squeezed and very uncomfortable under any circumstance. All of
these buildings are simply too large and too close — they cannot avoid visually degrading
the experience of playing the holes.
Another factor you should consider is the fact this development will make the golf course
easier to play. At the moment, any ball hit to the right is out of bounds and lost to play.
With construction of the buildings, many of the balls hit to the right will ricochet back
into the fairway, a new version of pinball golf. Obviously, that situation is less than
desirable and further warrants the need to fence and/or landscape the perimeter.
As to the issue of fencing, we have contacted a local manufacturer in regards to
completing a trajectory study — the approximate time frame to complete the study will be
three to four weeks at a cost of $3,500. Give us a call if you would like to proceed.
In almost all circumstances, it has been the general goal of our firm to effect positive
solutions between golf and surrounding uses. In this instance, however, I'm not sure the
current proposal cannot help but have a detrimental impact on the course and the joy of
playing it. Please let me know if we can be of further service.
Sincerely yours,
Theodore G Robinson Jr.
c.c. Chris Dubia
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (this "Agreement") is made and entered into as
of December , 2005, by and between Lennar Homes and its subsidiary, Lennar Homes of
California (collectively, the ' Company"), and the Newport Beach Country Club, Inc. (the
"Indemnitee").
RECITALS
WHEREAS, the Company is the owner of certain realproperty situated in
Newport Beach, California, which is adjacent to and adjoining the Indemnitee's real property
(the "Property").
WHEREAS, the Indemnitee, the ground lessee of certain real property adjacent
to and adjoining land of the Company, has owned and operated in its current location for over
fifty years a private golf course known as The Newport Beach Country Club (the "Golf
Course");
WHEREAS, the Company has submitted an application to the City Council for
the City of Newport Beach to affirm the decision of the Newport Beach Planning Commission
approving plans for the construction of certain residential units on the Company's Property
subject to certain enumerated conditions (the "Project");
WHEREAS, one of the enumerated conditions for the approval of the Project
pertains to the Company working with the Indemnitee to develop notification mechanisms for
the owners/occupants and guests of the Project of the potential harm to persons and damage to
property related to errant golf balls from the Golf Course. These may include, but are not limited
to, notification through sales disclosures and the CC&R's, additional insurance provided and
paid for by the Company, and agreements by the Company to defend and indemnify the
Indemnitee from any such. claims;
WHEREAS, the Company desires to address the liability concerns of the
Indemnitee, provide adequate notice to owners/occupants/guests, provide additional insurance to
Indemnitee, and obtain consent of the Newport Beach City Council for the Project;
WHEREAS, the Indemnitee desires to obtain full and complete indemnity from
the Company for any and all claims arising from errant golf balls that may. cause bodily injury to
persons and/or property damage during the development, construction, pre -sale and post sale of
the residential units of the Project to contractors, subcontractors, individual homeowners,
occupants, visitors and guests;
WHEREAS, in recognition of the Indemnitee's need for substantial protection
against personal liability, the Company wishes to provide in this Agreement for the
indemnification of and the advancement of defense expenses to the Indemnitee as set forth in this
Agreement; for the maintenance of coverage of the Indemnitee under the Company's liability
insurance policies as an additional insured; for an Easement for Golf Balls from the Company
and for the recordation of a Declaration of Easement for Golf Balls
NOW, THEREFORE, in consideration of the foregoing promises, the mutual
covenants and agreements contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged the parties hereto agree as follows:
1. Indemnification. The Company shall hold harmless and indemnify the
Indemnitee, and its successors, assigns, officers, directors, shareholders, employees, members,
guests, invitees and ground lessors, against any and all expenses, liabilities and losses (including,
without limitation,. investigation expenses and expert witnesses' and attorneys' fees and
expenses judgments, penalties, fines and amounts paid or to be paid in settlement) actually
incurred by the Indemnitee (net of any related insurance proceeds or other amounts received by
the Indemnitee or paid by or on behalf of the Company on the Indemnitee's behalf) in
connection with any action, suit, arbitration or proceeding (or any inquiry or investigation,
whether brought by or in the right of the Company or otherwise that the Indemnitee in good faith
believes might lead to the institution of any such action, suit arbitration or proceeding), whether
civil, criminal, administrative or investigative, or any appeal therefrom, in which the Indemnitee
is a party, is threatened to be made a party, is a witness or is participating (a Proceeding") based
upon, arising from relating to or by reason of the fact of errant golf balls from the Golf Course
landing on the adjacent and adjoining Property of the Company on which the Project has been or
will be constructed. In providing the foregoing indemnification, the Company shall, with respect
to a Proceeding, hold harmless, defend and indemnify the Indemnitee to the fullest extent
permitted by California law.
2. Liability Insurance. In addition to the foregoing, the Company shall
purchase and maintain liability insurance on behalf of the Indemnitee insuring against any
liability asserted against it as a result of errant golf balls from the Golf Course landing on the
adjacent and adjoining Property of the Company and/or striking any persons thereon on which
the Project has been or will be constructed. The type and amount of such insurance shall be as
set forth in Exhibit "A". The purchase, establishment and maintenance of any such liability
insurance shall not in any way limit or affect the rights and obligations of the Company or of the
lndemnitee under this Agreement except as expressly provided herein.
3. Defense Costs. The Company shall pay on behalf of the Indemnitee any
and all expenses, including without limitation, investigation expenses, expert witness expenses,
attorneys' fees and costs incurred by the Indemnitee in connection with the defense of any
Proceeding ("Defense Costs' ). • Indemnitee shall promptly submit any invoices it receives
relating to Defense Costs and the Company agrees to use its best efforts promptly to pay, or
cause to be paid, all such Defense Costs.
4. Notice and Defense of Claim. The Indemnitee agrees promptly to
notify the Company in writing upon being served with any summons, citation, subpoenas,
complaint, indictment, information or other document relating to any Proceeding or matter that
may be subject to indemnification or advancement of expenses covered hereunder. The
Company shall be entitled to assume the defense thereof, with counsel reasonably satisfactory to
the Indemnitee. After notice from the Company to Indemnitee of its election to so assume the
defense thereof, the Company shall not be liable to Indemnitee under this Agreement for any
legal or other expenses subsequently incurred by Indemnitee in connection with the defense
thereof other than reasonable costs of investigation or as otherwise provided below. Indemnitee
shall have the right to employ its own counsel in such Proceeding or matter, but the fees and
expenses of such counsel incurred after notice from the Company of itsassumption of the
defense thereof shall be at the expense of Indemnitee unless (i) the employment of counsel has
been authorized by the Company; (ii) Indemnitee shall have reasonably concluded that there may
be a conflict of interest between the Company and Indemnitee in the conduct of the defense of
such action; or (ni) the Company shall not in fact have employed counsel reasonably satisfactory
to Indemnitee to assume the defense of such Proceeding or matter, in each of which cases the
fees and expenses of counsel shall be the expense of the Company. The Company shall not be
entitled to assume the defense of any Proceeding or matter brought by or on behalf of the
Company or as to which Indemnitee shall have made the conclusion provided for in (ii) above.
The Company shall not be liable to indemnify Indemnitee under this Agreement for any amounts
paid in settlement of any Proceeding or matter affected without its prior written consent. The
Company shall not settle any Proceeding or matter in any manner that would impose any penalty
or limitation on Indemnitee without Indemnitee's written consent. Neither the Company nor the
Indemnitee will unreasonably withhold their consent to any proposed settlement.
5. Agreement of Easement for Golf Balls; Declaration of Easement for
Golf Balls. In addition to the foregoing, the Company shall establish for the benefit of the
Indemnitee and its successors, assigns officers, directors, shareholders, employees, members,
guests, invitees and ground lessors a non-exclusive easement (the "Easement") over and across,
and in the air space above, all of the Company's Property on which the Project shall be built for
the purpose of the flight of golf balls through the air over the Company's Property and the entry
of golf balls upon and/or across the Company's Property on which the Project shall be built in
the future. The Easement shall be recorded in the Orange County Recorders office in the form
attached hereto as Exhibit "B. The Declaration of Easement for Golf Balls and Easement shall
not in any way limit or affect the rights and obligations of the Company or of the Indemnitee
under this Agreement except as expressly provided herein.
6. Successors; Binding Agreement. This Agreement shall be binding on
and shall inure to the benefit of and be enforceable by and against the Company's successors and
assigns and by the Indemmtee s successors, assigns, officers, directors, shareholders, employees
members, guests, invitees and ground lessors. The Company shall require any successor or
assignee (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company, by written agreement in form and
substance reasonably satisfactory to the Company and to the Indemnitee, expressly to assume
and agree to perform this Agreement in the same manner and to the same extent that the
Company would be required to perform if no such succession or assignment had taken place.
7. Enforcement. In the event the Indemnitee is required to bring any action
to enforce its rights or to collect monies due under this Agreement and is successful in such
action, the Company shall reimburse the Indemnitee for all of the Indemnitee's costs, including
but not limited to attorneys' fees and expenses in bringing and pursuing such action.
8. Severability. Each of the provisions of this Agreement is a separate and
distinct agreement independent of the others, so that if any provision hereof shall be held to be
invalid or unenforceable for any reason, such invalidity or unenforceability shall not affect the
validity or enforceability of the other provisions hereof, which other provisions shall remain in
full force and effect, and, to the fullest extent possible, the provisions of this Agreement
(including, without limitation, each portion of any section of this Agreement containing any such
provision held to be invalid, illegal or unenforceable) shall be construed so as to give effect to
the intent manifested by the provision held illegal, invalid or unenforceable.
9. Miscellaneous. No provisions of this Agreement may be modified,
waived or discharged unless such modification, waiver or discharge is agreed to in writing
signed by the Indemnitee and either the President and Chief Executive Officer of the Company
or another officer of the Company specifically designated by its board of directors No waiver
by either party at any time of any breach by the other party of, or of compliance with, . any
condition or provision of this Agreement to be performed by such other party shall be deemed a
waiver of similar or dissimilar provisions or conditions at the same time or at any prior or
subsequent times. No agreements or representations, oral or otherwise, express or implied, with
respect to the subject matter hereof have been made by either party that are not set forth
expressly in this Agreement. The validity, interpretation, construction and performance of this
Agreement shall by governed by the laws of the State of California, without giving effect to the
principles of conflicts of laws thereof.. All the terms and words used in this Agreement
(including personal pronouns) regardless of gender shall be deemed and construed to include any
other gender as the context shall require.
10. Notices. For the purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be deemed to have
been duly given when delivered or mailed by United States registered mail, return receipt
requested, postage prepaid, as follows:
If to the Indemnitee:
If to the Company:
The Newport Beach Country Club
1600 East Pacific Coast Highway
Newport Beach, California 92660
Attention: President
Lennar Homes
Lennar Homes of California
25 Enterprise, Suite 300
Aliso Viejo, California 92656
Attention: President
11. Counterparts. This Agreement may be executed in one or more
counterparts, .each of which shall be deemed to be an original but all of which together shall
constitute one and the same instrument.
12. Effectiveness. This Agreement shall be effective as of the date first
above written.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of
the day and year first above written.
LENNAR HOMES
By:
Its
LENNAR HOMES OF CALIFORNIA
By:
Its
THE NEWPORT BEACH COUNTRY CLUB, INC.
By:
Its
Exhibit "A"
INSURANCE REQUIREMENTS
[To Be Determined]
Exhibit "B"
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
Lennar Homes of California
25 Enterprise, Suite 300
Aliso Viejo, California 92656
DECLARATION OF EASEMENT FOR GOLF BALLS
THIS DECLARATION OF EASEMENT FOR GOLF BALLS ("Declaration") i
made as of , 2005, by LENNAR HOMES OF CALIFORNIA, a California
corporation (the "Company").
RECITALS
A. The Company is the fee owner of certain real property located in Orange
County, California (the "Property") a legal description and depiction of which is attached hereto
as Exhibit "A" which is adjacent to The Newport Beach Country Club (the "Golf Course') a
legal description and depiction of which is attached hereto as Exhibit `B".
B. The Company intends to develop the Property into a multi -unit, residential
condominium project for sale toindividual homeowners (the "Project"). In connection with the
Project, the Company intends to form a homeowners' association which will ultimately own
certain portions of the Property and Project known as the Common Areas. (The Property, the
Project and the Common Areas, as described herein, shall be collectively referred to as "the
Servient Lots").
C. The Company desires that prior to the purchase or acquisition of any right,
title or interest in any Servient Lot (together with the condominium unit thereon, if any) or the
Common Area on the Property as described in the Project the potential buyer or other owner
have notice of the possibility of errant golf balls from the Golf Course over such Servient Lot or
Lots and in acquiring such Servient Lot, such buyer or other owner agrees to waive claims and
indemnify for injuries from errant golf balls, as provided herein.
NOW, THEREFORE, the Company hereby establishes the. following:
1. Reservation of Golf Ball Easement.
The Company hereby establishes for the benefit of the Golf Course a non-
exclusive easement (the "Easement") over and across, and in the entire airspace above, all of the
Property and/or Servient Lots, for the purpose of' the flight of golf balls through the air over the
Property and/or Servient Lots and the entry of golf balls upon and/or across the Property and/or
Servient Lots and any improvements constructed, or to be constructed, upon the Property. and/or
Servient Lots.
2. Character of Easement.
The Easement shall be appurtenant to the Golf Course and the Golf Course shall
be the dominant tenement, and each. and every legal parcel or lot on the Property and/or in the
Servient Lots shall be the servient tenement,
3. Use of Easement.
(a) Limited Purpose. The Easement shall be used only for the
purposes set forth in paragraph 1 above. Nothing herein shall be construed to (i) permit entry
upon the Servient Lots by any individual for any purpose, including but not limited to, the
retrieval of golf balls, or (ii) limit the construction of improvements on the Servient Lots.
(b) Limited Use. The Easement shall be specifically limited to use by
the owner(s) and operator(s) of the Golf Course and their licensees, invitees, employees and
agents. The rights reserved and created hereunder are for the benefit of the Parties (as that term
is defined below) and each of them.
4. Term.
The term of the Easement shall be from the date of recordation of this Declaration
in the Official Records of Orange County California, to and until such time as no portion of the
Golf Course has been operated as a golf course for a period of' at least thirty six (36) consecutive
calendar months, which 36-month period may not include any time the Golf Course is under
construction or closed for refurbishment, redesign or other similar reasons.
Waiver and Indemnification.
The Company, the owner(s), operator(s) and designer(s) of the Golf Course, and
all of their respective divisions, subsidiaries and affiliated companies, and all of their respective
officers, directors, shareholders, agents, representatives, employees and professional consultants,
and all of their respective successors and assigns (collectively, the "Parties"), and each of them,
shall not be liable for any cost, expense (including actual attorneys' fees), loss, damage, injury
(including death) or claim of any kind or character, including, but not limited to, causes of action
for negligence, nuisance trespass, assault or battery, to any person or property arising from or
related to any use of the Easement. All persons holding any right, title or interest in any portion
of the Servient Lots (an `Owner") shall hold such interest subject to the terms and conditions of
this Declaration, and each such Owner hereby waives any and all claims and demandsagainst the
Parties arising from or related to any such cost, expense, loss, damage, injury or claim.
Furthermore, each such Owner shall indemnify, defend and hold harmless the Parties, and each
of them, from and against any and all claims, demands, actions, suits, losses, liabilities, damages,
costs and expenses (including actual attorneys' fees) arising from or related in any way
whatsoever to any use of the Easement over, above across or in such Owner's Servient Lot,
whether made or incurred by such Owner, any member of such Owner's family, any invitee of'
such Owner or any other person. Payment shall not be a condition precedent to recovery under
the foregoing indemnification, and the obligation of each Owner to defend the Parties as set forth
above shall be the obligation to defend with counsel approved by the indemnified Party. The
obligations of such Owners hereunder shall run with the Servient Lots for the benefit of the. Golf
Course and shall be binding on all successive owners of any portion of' the Servient Lots.
Notwithstanding anything to the contrary herein, (a) nothing contained in this paragraph shall
operate to relieve any Party for any loss, damage, injury or claim which is determined by a court
of competent jurisdiction to have been solely and proximately caused by the intentional
misconduct or gross negligence of such Party, and (b) the waiver and indemnification provisions
of this paragraph shall not extend to the individual responsible for placing the golf ball in flight if
such flight is the sole and proximatecause of the personal injury or property damage. When
more than one person is the Owner of any Servient Lot such persons shall be jointly and
severally liable hereunder as the Owner of such Servient Lot. The term "Owner" shall not
include any person holding an interest in a Servient Lot merely as security for the performance of
an obligation.
6. Buffers .
Without limiting the generality of the foregoing paragraphs of this Declaration,
each Owner understands and agrees that the owner(s), operator(s) and designer(s) of the Golf'
Course cannot necessarily install fences, trees and other buffers, or reconfigure or remodel the
Golf Course, to hinder errant golf balls from entering such Owner's specific Lot as such
installations, reconfigurations and remodeling may diminish the enjoyment of the Lots or other
Owners or other property. Nothing contained herein shall be deemed to establish or grant a view
easement or any other similar easement or right in favor of any Owner or any owner of other
property near the Golf Course, and the owner(s) .and operator(s) of the Golf Course may install
fences, trees and other improvements on the Golf Course and remodel or reconfigure the Golf
Course as and when they so desire.
7. Miscellaneous.
(a) Successors and Assigns. The provisions of this Declaration shall
bind all parties now having or hereafter obtaining any beneficial interest in the Servient Lots and
their successors and assigns, and shall inure to the benefit of all of the Parties and all parties now
having or hereafter obtaining any beneficial interest in the Golf Course and their successors and
assigns.
(b) No Rights in Public. Nothing contained herein shall be deemed to
be a gift or dedication of any portion of the Servient Lots to or for the general public or for any
public purpose whatsoever, it being the intention of the undersigned that the Easement shall be
strictly limited to and for the purposes herein expressed.
(c) Attorneys' Fees. In the event of any controversy, claim, action,
dispute or proceeding, including any arbitration proceeding, relating to this Declaration, or the
breach hereof, then the unsuccessful party in such action or proceeding shall reimburse the
successful party therein for all costs and expenses (including court costs and actual attorneys'
fees) incurred therein by such successful party.
(d) Governing Law. This Declaration shall be governed by and
construed in accordance with the laws of the State of California. If any term, provision or
condition contained in this Declaration (or the application of any such term, provision or
condition) shall to any extent be invalid or unenforceable, the remainder of this Declaration shall
be valid and enforceable to the fullest extent permitted by law.
IN WITNESS WHEREOF, the Company has executed this Declaration the day
and year first above written.
LENNAR HOMES OF CALIFORNIA
By:
Its
STATE OF CALIFORNIA
) ss.
COUNTY OF ORANGE
On , 2000, before me, , a
Notary Public in and for said State, personally appeared and
personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person(s) whose name(s) (is) (are) subscribed to the within
instrument and acknowledged to me that (he) (she) (they) executed the same in (his) (her) (their)
authorized capacity(ies), and that by (his) (her) (their) signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
(SEAL)
WITNESS my hand and official seal.
Notary Public in and for said State
-10-
EXHIBIT "A"
LEGAL DESCRIPTION OF THE PROPERTY
That certain real property located in the County of Orange, State of California,
more particularly described as follows:
11-
EXHIBIT "B"
LEGAL DESCRIPTION OF GOLF COURSE
That certain real property located in the County of Orange, State of California,
more particularly described as follows:
16001.00IindemnificationagmtNBCC
-12-
CHRISTIAN F. DUBIA, JR.
WRITER'S E-MAIL ADDRESS
cdubia@detrlaw.com
DUBIA, ERICKSON, TENERELLI & RUSSO, LLP
ATTORNEYS AT LAW
2 PARK PLAZA, SUITE 300
IRVINE, CALIFORNIA 92614-8513
TELEPHONE: (949) 955-1177
FACSIMILE: (949) 833-2067
www.detrlaw.com,
OUR FILENO.
16001.00
December 28, 2005
Renetta A. Caya, Esq.
Palmieri, Tyler, Wiener, Wilhem & Waldron, LLP
2603 Main Street, Suite 1300
Irvine, California 92614-6228
Re: The Newport Beach Country Club and Lennar Homes
Dear Renetta:
This letter is written in response to your letter dated December 9,
2005 which responded to my letter to you dated December 6, 2005. My letter of
December 6, 2005 set forth the design parameters and conditions which my client,
The Newport Beach Country Club, Inc. ("NBCC") believes to be necessary for
NBCC to not oppose the proposed Santa Barbara condominiums ("Project") by
your client, Lennar Homes of California, Inc ("Lennar").
At our meeting on November 29, 2005 at your offices, Dave Wooten
reviewed with you the concerns of NBCC regarding safety issues associated with a
residential development in such close proximity to the golf course. You also were
provided a copy of an article fiom the Urban Land Institute entitled "Golf Course
Development and Real Estate ' which discusses these safety issues and design
standards for real estate development in proximity to golf courses. In my letter
dated December 6, I provided you with a letter from Ted Robinson, Jr , NBCC's
golf course architect, which summarizes his opinions and conclusions regarding
these safety concerns as well as aesthetic issues.
Your letter dated December 9 sets forth your responses to NBCC's
design parameters and conditions in order for NBCC to not oppose the Pioject.
Renetta A. Caya, Esq.
Palmieri, Tyler, Wiener, Wiihem & Waldron, LLP
December 28, 2005
Page 2
Below is NBCC's Reply to Lennar's Responses to NBCC's Conditions For
purposes of clarity NBCC's original design parameters and conditions set forth in
its December 6 letter ("NBCC Conditions") are restated along with Lennar's
response set forth in your letter dated December 9 ("Lennar Response") and
NBCC's reply thereto ("NBCC Reply"):
1. NBCC Condition: The current plans, presented at our
meeting, contemplate a walkway/path along the perimeter of the project and
adjacent to the golf course boundary with limited fencing. It was represented
that the purpose of the walkway/path was for emergency access of firefighters.
NBCC has significant concerns that residents and guests will utilize this
walkway and increase their exposure to bodily injury from errant golf balls.
NBCC would require that Lennar install fencing at a height of at least five
feet to restrict access to the walkway/path to only emergency personnel and to
restrict trespassing on NBCC property.
Lennar Response: Lennar will construct locked gates at the
entry to this emergency access drive to restrict trespassing onto NBCC property in
accordance with the Fire Department requirements Lennar cannot, however,
restrict access from the emergency access drive to the Project buildings as this
would defeat the purpose of the drive by preventing emergency vehicles from
accessing these buildings.
NBCC Reply: NBCC requires that Lennar install fencing
along the property line to prevent trespassing on NBCC property and the
attendant risks of being hit by a golf ball.
2. NBCC Condition: The current plans contemplate the
construction of patios on the ground level and balconies on the upper levels of
the project. NBCC would require a redesign that eliminated all outside patios
and balconies due to the risks associated with errant golf balls. The type of
glass installed in the units should be shatter proof and capable of withstanding
significant blunt force without breaking.
Lennar Response: Due to the height of the first floor
balconies and patios, owners would have to jump off these balconies down several
feet in order to access the golf course. The height of these balconies above
finished grade is a large obstacle to homeowners trespassing on the golf course.
Renetta A, Caya, Esq.
Patinier', Tyler, Wiener, Wilhem & Waldron, LLP
December 28, 2005
Page 3
Lennar will also be proactive in discouraging its homeowners and others from
trespassing on the course, by including a provision in the disclosure documents to
homebuyers and adopting homeowners' association rules. Lennar's current
building plans contemplate the installation of safety -tempered glass at windows
facing the golf course.
NBCC Reply: Lennar's reponse is unacceptable and fails to
address NBCC's concern that people on balconies on the upper floors and on
patios on the ground floor are at a considerable risk of being hit by golf balls.
Access to patios and balconies should not be allowed It is unclear to NBCC
whether "safety -tempered" glass at windows facing the golf course are shatter
proof and capable of withstanding blunt force without breaking.
3. NBCC Condition: The current plans contemplate an open,
public area with a seating area between the first two buildings fronting the
golf course. NBCC would require that this open area be eliminated or
landscaped and fenced in such a manner so as to prevent owners and guests
from congregating or walking in this area. It is in very close proximity to the
No. 2 green and well within the landing area of errant golf balls.
Lennar Response: NBCC requested that the open area "either
be eliminated or landscaped and fenced in such a manner so as to prevent owners
and guests from congregating or walking in this area." First, the open public area
does not provide for a stairway (or any pathway) down to the golf course and is
several feet above the natural grade. It would likely cause a person great harm to
jump down from this common area to access the golf course. Further, NBCC's
concern that the common area is "well within the area of errant golf balls" is quite
troublesome Lennar has noted that currently only tennis courts 5, 6 7 and only a
portion of 8 are surrounded by protective netting Therefore, Lennar can only
conclude that NBCC did not install netting along courts 1 through 4 because golf
balls currently do not pose a risk to the guests playing on these courts. The
location of the common area is within the realm of courts 1 and 3, the area that is
not presently protected by netting. As such, your request to eliminate or redesign
the common area appears incompatible with the location of the current safety
measures along the tennis courts.
Renetta A. Caya, Esq.
Palmieri, Tyler, Wiener, Wilhem & Waldron, LLP
December 28, 2005
Page 4
NBCC Reply. Lennar misses the point. The issue is not
pedestrian access but safety. Ted Robinson's Exhibits 2a and 3a clearly show
the area in question, where Lennar proposes putting in a parklike assembly
area, and it is well within the hazard area for errant golf balls. That area is
currently a grass area in front of the tennis clubhouse and is not protected by
fencing because it is hardly ever used. The tennis court nearest the Marriott
Tower his notbeen a problem because it is largely protected by trees and
vegetation. NBCC requires that this open area be eliminated or landscaped and
fenced in such a manner so as to prevent owners and guests from congregating
or walking in this area.
4. NBCC Condition: NBCC would require that netting be
installed along No. 2 fairway/green and along No 3 fairway in the areas
affected by errant golf balls and additional landscaping, including trees,
associated with such netting installed to protect against errant golf balls
damaging the property or injuring persons at the project. Ted Robinson, Jr.
has received a proposal from a netting subcontractor to perform a trajectory
study (which will take 3-4 weeks to perform at a cost of $3500) to determine
the location and specifications of the required netting. The costs of such
netting and landscaping, including consultant fees and studies, would be paid
for by Lennar. We will await Lennar's written authorization before we
proceed with the trajectory study.
Lennar Response: As recommended by NBCC, the
installation of netting appears to be the solution that best mitigates the safety risks
posed by errant golf balls. Lennar will choose an independent
subcontractor/consultant to prepare a trajectory study of the errant golf balls.
Based upon the recommendations of this trajectory study, Lennar will consult with
NBCC to determine the location and specifications of the netting and other
recommended remedies to address the safety concerns
NBCC Reply: NBCC wants Lennar to do more than promise
to "consult" with it on the location and specifications of such netting. NBCC
requires that it, not Lennar, engage a netting subcontractor to perform the
trajectory study and that Lennar agree, in advance, to pay for such netting and
associated landscaping, including consultant fees and studies.
Renetta A. Caya, Esq.
Palmieri, Tyler, Wiener, Wilhem & Waldron, LLP
December 28, 2005
Page 5
5. NBCC Condition: To the extent that the course may be
modified to reduce the potential for errant golf balls landing on the project,
NBCC may consider implementing such modifications to the course to
mitigate the risk. The costs associated with any course modification, including
any plantings and/or landscaping, would be paid for by Lennar.
Lennar Responses Lennar requests that NBCC seriously
consider certain modifications to the No 2 and No. 3 fairways and provide Lennar
with a list of such modifications that could be implemented to mitigate the errant
golf ball risks and perhaps s'multaneously enhance the aesthetics or functionality
of the course to its members. If these modifications are identified and are cost
effective, Lennar would be prepared to contribute financially toward them. Lennar
is convinced that simple changes in the fairway design, like the addition of
screening trees along the fairway, would dramatically reduce the number of errant
golf balls landing on the Project boundaries. Further if the course modifications
reduce the need for screening, Lennar would consider contributing an allocated
portion toward the cost of such netting or other screening material.
NBCC Reply: Lennar must agree in advance to pay for any
and all consultant fees associated with preparing proposed modifications to the
course. Moreover, it is not enough for Lennar to "consider contributing an
allocated portion toward the cost of such netting or other screening material."
Lennar must agree in advance to pay for all such screening and/or landscaping.
6. NBCC Condition: NBCC will require Lennar to enter into
an Indemnity Agreement, in tl e form attached hereto, which includes a
Declaration of Golf Ball Easement, along with the provision of liability
insurance coverage. Lennar would be responsible for all costs associated with
this Indemnity Agreement and related documents, including reimbursing
NBCC for the legal expenses incurred in preparing and finalizing the
agreement.
Lennar Response: Lennar has reviewed the Declaration and
indemnity agreements and has several comments as shown on the attached redline.
We have redlined only the Declaration as that document shall incorporate all the
necessary indemnity, waiver and release provisions that affect Lennar's future
Renetta A. Caya, Esq.
Palmieri, Tyler, Wiener, Withem & Waldron, LLP
December 28, 2005
Page 6
homeowners. As you can see, much of the language from the indemnity agreement
has been incorporated into the Declaration. As, set forth in the Declaration, Lennar
will disclose to each homebuyer the additional risks of living adjacent to a golf
course, including not only errant golf balls, but also fertilizer overspray, the
potential of obstructed view due to the installation of netting and/oi landscaping,
traffic, noise and other impacts arising from the use and operation of the golf
course. Lennar is presently researching additional homeowner association
insurance coverage to insure against the liability of errant golf balls on the Project
and reserves the right to modify this provision once Lennar has further information
on coverage. Condominiums within the Project will be developed and sold to the
homebuying public; any improvements the Condominium Buildings and the
common areas will ultimately be owned and maintained by a non-profit mutual
benefit corporation or homeowner's association ("Association"). Lennar will not
own, maintain or be responsible for any portion of the Project once Lennar has sold
all of the Condominimus within the Project. For this reason, Lennar cannot
indemnify for the acts of others on property it no longer owns or controls. Instead.
Lennar would be prepared to agree that the Association and the future Owners will
acknowledge and accept the risks of errant golf balls, waive and release NBCC
from associated liabilities from these claims. These changes are noted on the
enclosed redline to the Declaration.
NBCC Reply: Lennar must remain responsible to NBCC for the
liability it has created th lough the development of the Project. Your Draft
Declaration of Covenants, Conditions and Restrictions and Grant of Easement
for Golf Balls ("Declaration') simply shifts the responsibility for indemnification
to the homeowner's association, if and when it is formed. Thus, while you
acknowledge the safety issues and the potential for harm to property and
persons, Lennar simply puts the profits of the Project in its pocket and walks
away from the harm it has created without any residual liability. This is
unacceptable to NBCC. NBCC will require Lennar to enter into an Indemnity
Agreement, in the form attached to its letter dated December 6. Lennar must
agree that it will he responsible for all costs associated with this Indemnity
Agreement and related documents, including reimbursing NBCC for the legal
expenses incurred in preparing and finalizing the agreement. As for the
Declaration, it must be modified to protect and indemnify NBCC's owners,
operators, designers, and their respective divisions, subsidiaries and affiliated
Renetta A. Caya, Esq.
Palmieri, Tyler, Wiener, Wilhem & Waldron, LLP
December 28, 2005
Page 7
companies, and all of their respective officers, directors, shareholders, agents,
representatives, employees and professional consultants, and all of their
respective successors and assigns, as well as its members, guests and invitees in
accordance with paragraph 5 of the Indemnification Agreement.
In conclusion, as set forth in our letter dated December 6, NBCC has
operated a golf course at its present location for over 50 years. With such an
operating history, the likelihood of errant golf balls landing on Lennar's Project is
a certainty. Lennar's Project falls squarely within the historical landing area of
these errant golf balls. Given the substantial number of rounds of golf played each
year, it is a certainty that hundreds of golf balls will land in the area of the Project.
Without NBCC's design parameters and conditions being met, it is a certainty that
someone will sustain serious bodily injury and/or property damage from errant golf
balls. NBCC and its owner, members, guests and invitees should not be subjected
to risk of lawsuits by contractors, owners, guests or third persons because of
Lennar's Project. Based on these undisputed facts, Lennar must remain
responsible to NBCC for the liability it will create through the development of the
Project.
At the outset of your December 9 letter you state that "Lennar
appreciates and understands the risks to persons and property posed by
errant golf balls" and declares a desire to "mitigate these safety risks." If this is
really true and you really mean to `mitigate these safety risks" then you should
have no problem agreeing to NBCC's design parameters and conditions
Moreover, it is Lennar, not NBCC, that stands to profit handsomely from this
Project. Part of your development costs should not be born by NBCC, but rather
falls squarely on Lennar's shoulders. It is unreasonable for Lennar not to agree, in
advance, to pay for these necessary safety and design features which the Project is
imposing on NBCC. Without such agreement, NBCC cannot support and will
actively oppose, the Project.
We are currently scheduled to meet at my office on Thursday, January
5, 2006 at 2:00 p.m. to discuss this matter further. Please confirm such meeting on
receipt of this letter.
Very truly yours,
Renetta A. Caya, Esq.
Palmieri, Tyler, Wiener, Wilhem & Waldron, LLP
December 28, 2005
Page 8
Christian F. Dubia, Jr.
CFD:sd
Enclosures
16001.00/efdcayal tr.doc