Loading...
HomeMy WebLinkAbout21 - Tennis and Pickleball Club at Newport Beach - 1602 East Coast Highway (PA2021-260)Q SEW Pp�T CITY OF z NEWPORT BEACH c<,FORN'P City Council Staff Report November 14, 2023 Agenda Item No. 21 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Seimone Jurjis, Assistant City Manager/Community Development Director - 949-644-3232, sjurjis@newportbeachca.gov PREPARED BY: David Lee, Senior Planner, dlee@newportbeachca.gov 949-644-3225 Ordinances Nos. 2023-18 and 2023-19: Tennis and Pickleball Club TITLE: at Newport Beach — 1602 East Coast Highway (PA2021-260) ABSTRACT: The applicant requests an approval of legislative amendments to the approved Tennis Club at Newport Beach project located at 1602 East Coast Highway. The amendments are to 1) reduce the number of future tennis courts from seven to four courts and add 14 pickleball courts, 2) increase the number of future hotel rooms from 27 to 41 rooms, 3) increase the gross floor area of ancillary uses within the future hotel by 4,686 square feet, and 4) provide three attached condominium units and two detached single-family residences in -lieu of five detached single-family residences. The request also includes a new 15-year-term Development Agreement to ensure the orderly development of the property and certain public benefits to the City of Newport Beach. For the City Council's consideration is the approval of three resolutions for environmental clearance, an amendment to the General Plan, authorization to submit an amendment of the Local Coastal Program to the California Coastal Commission, and the introduction of two ordinances to amend the Newport Beach Country Club Planned Community Development Plan and approve a new Development Agreement for the amended project. If approved, the item will return to the City Council on November 28, 2023, for the second reading and adoption of the two ordinances. The requested local coastal program amendment (Title 21 Amendment) will not become effective until approval and adoption by the California Coastal Commission. RECOMMENDATIONS: a) Conduct a public hearing; b) Adopt Resolution No. 2023-69, A Resolution of the City Council of the City of Newport Beach, California, Adopting an Addendum to Mitigated Negative Declaration No. ND2010-008 for the Tennis and Pickleball Club at Newport Beach Located at 1602 East Coast Highway (PA2021-260); c) Adopt Resolution No. 2023-70, A Resolution of the City Council of the City of Newport Beach, California, Approving a General Plan Amendment for the Tennis and Pickleball Club at Newport Beach Located at 1602 East Coast Highway (PA2021-260); 21-1 Ordinances Nos. 2023-18 and 2023-19: Tennis and Pickleball Club at Newport Beach — 1602 East Coast Highway (PA2021-260) November 14, 2023 Page 2 d) Adopt Resolution No. 2023-71, A Resolution of the City Council of the City of Newport Beach, California, Authorizing Submittal of Local Coastal Program Amendment to the California Coastal Commission to Amend the Newport Beach Country Club Planned Community Development Plan (PC-47) for the Tennis and Pickleball Club at Newport Beach Located at 1602 East Coast Highway (PA2021-260); e) Waive full reading, direct the City Clerk to read by title only, introduce Ordinance No. 2023-18, An Ordinance of the City Council of the City of Newport Beach, California, Approving an Amendment to the Newport Beach Country Club Planned Community Development Plan (PC-47) for the Tennis and Pickleball Club at Newport Beach Located at 1602 East Coast Highway (PA2021-260), and pass on to second reading on November 28, 2023; and f) Waive full reading, direct the City Clerk to read by title only, introduce Ordinance No. 2022-19, An Ordinance of the City Council of the City of Newport Beach, California, Approving a Development Agreement for the Tennis Club and Pickleball Club at Newport Beach Located at 1602 East Coast Highway (PA2021-260), and pass on to second reading on November 28, 2023. DISCUSSION: Background The subject property is approximately seven acres in size and presently improved with a private tennis club consisting of a 3,725-square-foot clubhouse, 16 tennis courts, 31 interim -use pickle ball courts, and a 125-space surface parking lot. The property is located adjacent to the Newport Beach Country Club Golf Course and west of the Corporate Plaza West Planned Community, which consists of several office buildings. The site is also located directly south of the Granville residential community. The 2012 Approved Project On March 27, 2012, the City Council approved land use entitlements and executed a 10-year-term development agreement (2012 Development Agreement) to allow the redevelopment of the tennis club site into three distinct components: 1) Tennis Club — Reconstruct the existing 3,725-square-foot tennis clubhouse and reduce the total number of tennis courts from 24 to seven, including one lighted stadium court; 2) Hotel - Construct a 27-room boutique hotel with ancillary uses consisting of a performance therapy center, yoga pavilion, hotel office, common area, and a spa and fitness center; and 3) Residential - Construct five detached single-family residences. 21-2 Ordinances Nos. 2023-18 and 2023-19: Tennis and Pickleball Club at Newport Beach — 1602 East Coast Highway (PA2021-260) November 14, 2023 Page 3 The project described above (Approved Project) has not been implemented to date and the property continues to operate as a private tennis club, with interim -use pickleball courts being introduced in 2019 without authorization from the City. Amendment to 2012 Development Agreement On June 28, 2022, the City Council approved an amendment to the 2012 Development Agreement, which authorized a one-year extension of the agreement to allow City staff additional time to process an amendment to the Approved Project. The one-year extension, however, has since lapsed and the 2012 Development Agreement expired on September 23, 2023. The 2021 Project Amendment Application On November 2, 2021, the applicant applied to amend the Approved Project to include one additional tennis court for a total of eight courts, 14 additional hotel rooms for a total of 41 rooms, additional ancillary hotel uses, and to provide three attached condominium units and two detached single-family residences in -lieu of five detached single-family residences. On September 8, 2022, the Planning Commission considered and recommended approval of the 2021 Project Application to the City Council. On September 27, 2022, the City Council considered and failed to approve the 2021 Project Application. Subsequent to the failed motion, the City Council directed the applicant to revise the project to include pickleball courts and remanded the application to a future Planning Commission meeting for further consideration of the pickleball use. On October 11, 2022, the City Council adopted a motion to reconsider the 2021 Project Application. On October 25, 2022, the City Council reconsidered and failed to approve the 2021 Project Application. Subsequent to the failed motion, the City Council again remanded the application to the Planning Commission to consider a revised project with pickleball. The 2022 Project Amendment Application Subsequent to City Council's actions in October 2022, the applicant augmented and submitted a proposed project (Proposed Project) to reduce the overall number of tennis courts and formally add pickleball courts to the existing private tennis club. The hotel and residential components of the 2021 Project Application did not change. Project Description The applicant is proposing to maintain four tennis courts (a reduction of three), add 14 pickleball courts, add 14 hotel rooms for a total of 41 rooms with additional ancillary uses, and to allow three of five single-family units to be developed as condominiums. The Proposed Project also includes a request for a 15-year-term Development Agreement. 21-3 Ordinances Nos. 2023-18 and 2023-19: Tennis and Pickleball Club at Newport Beach — 1602 East Coast Highway (PA2021-260) November 14, 2023 Page 4 Table 1 provides a summary of the Approved Project, comparing it to the Proposed Project: Table 1 — Proiect Comaarison Use Approved Project Proposed Project Tennis Clubhouse (3,725 sq. ft.) No Change 7 Tennis Courts 4 Tennis Courts (-3*) 14 Pickleball Courts +14* Hotel 27 Hotel Rooms 41 Hotel Rooms (+14) Concierge Center (2,200 sq. ft.) No Change Spa/Fitness Center (7,500 sq. ft.) No Change +4,686 sq. ft. of Ancillary Uses Performance Therapy (+852 sq. ft.), Yoga Pavilion (+633 sq. ft.), Administrative Office (+2,620 sq. ft.), Common Area (+581 sq. ft.) Residential 5 Detached Single -Family Residences 2 Detached Single -Family Residences (-3) 3 Attached Condominiums (+3) *There are currently 16 tennis courts and 31 interim -use pickleball courts on -site. The change in courts are in comparison to the 2012 Approved Project that is entitled in the 2012 Development Agreement. The Proposed Project involves a Local Coastal Program Amendment requiring subsequent approval of the California Coastal Commission (CCC). If the CCC does not approve the Proposed Project, the entire application would not become effective. C I] '1'Tait'6TaS The subject property is designated as Mixed -Use Horizontal 3/Parks and Recreation (MU-H3/PR) in the General Plan. This designation allows for a blend of regional commercial office, hotel, single-family and multi -family residential, and ancillary commercial uses. The PR designation applies to land intended for active public or private recreational purposes, including parks, golf courses, marina support facilities, aquatic facilities, tennis clubs and courts, private recreation, and similar facilities. The project site is classified as Anomaly No. 46 under the existing Land Use Element, which limits development to a tennis club building of 3,725 square feet and 24 tennis courts. It also permits up to five residential units in line with the MU-H3/PR designation. The applicant seeks no changes to the General Plan designations, but rather requests to increase the hotel rooms from 27 to 41, reduce the tennis courts from seven to four, and add 14 pickleball courts as compared to the Approved Project. The property would remain MU-H3/PR. The Proposed Project is consistent with the MU-H3/PR designation as it includes a mix of land uses including single-family residential, attached residential condominiums, recreational tennis and pickleball club facilities, and visitor -serving commercial uses. These uses are permitted. A complete consistency analysis of each of the applicable General Plan policies is provided in the attached resolution to approve the General Plan Amendment (GPA) (Attachment B) and included in Table 5-12 of the Land Use and Planning Section of the Mitigated Negative Declaration Addendum. 21-4 Ordinances Nos. 2023-18 and 2023-19: Tennis and Pickleball Club at Newport Beach — 1602 East Coast Highway (PA2021-260) November 14, 2023 Page 5 Charter Section 423 (Measure S) Pursuant to City Charter Section 423 and Council Policy A-18, an analysis must be prepared to establish whether a proposed GPA requires a vote by the electorate. The analysis is a comparison of intensity of the General Plan of a site prior to the amendment and after the amendment. As part of the Approved Project, the City Council authorized the conversion of 17 tennis courts to 27 hotel rooms on a traffic neutral basis. Since the Approved Project did not include a GPA, the conversion was not documented in Anomaly No. 46. However, the Approved Project has been used as the baseline for the analysis. To do otherwise would ignore a previously approved project entitled with a Development Agreement, as well as existing development standards outlined in the Planned Community Development Plan and Local Coastal Program Implementation Plan. Voter approval is required for "major" amendments defined as those amendments that significantly increase allowed density or intensity by 40,000 square feet of non-residential floor area or increase traffic by more than 100 peak hour vehicle trips (AM/PM) or increase residential dwelling units by 100 units. These thresholds apply to the total increases resulting from the amendment itself, plus 80 percent of the increases resulting from other amendments affecting the same neighborhood (defined as a Statistical Area as shown in the General Plan Land Use Element) and adopted within the preceding 10 years. In this particular case, the General Plan identifies the intensity of use as 24 tennis courts and a 3,725-square-foot tennis clubhouse in accordance with the MU-H3/PR land use category. The site was allocated five units from Land Use Element Policy LU 6.14.8 and there is no increase in residential units with the proposed application. Only 14 hotel rooms are required to be analyzed for Charter Section 423 since the 27 hotel rooms have been previously converted from the 17 tennis courts. Table 2 illustrates the calculations and none of the thresholds specified by Charter Section 423 are exceeded, therefore no vote of the electorate is required should the City Council choose to approve the GPA. Table 2 - Charter Section 423 Calculations Unit Floor area Trip rates AM trips PM Trips Tennis and Pickleball Clubhouse N/A N/A N/A Tennis and Pickleball Courts 11 courts N/A 1.67/Court AM 3.88/Court PM 18.37 42.68 Hotel 14 rooms 14,0001 0.56 AM/room 0.61 PM/room 7.84 8.54 Total - Project N/A 14,000 N/A 26.21 51.22 Vote Required Project N/A No N/A No No 80% of Prior Amendments N/A 0 N/A 23 43 Total- Project + Prior Amendments N/A 14,000 N/A 49.21 94.22 Vote Required Project + Prior Amendments N/A No N/A No No Pursuant to Council Policy A-18, each hotel room equals 1,000 square feet, so there is a 14,000 square foot increase. 21-5 Ordinances Nos. 2023-18 and 2023-19: Tennis and Pickleball Club at Newport Beach — 1602 East Coast Highway (PA2021-260) November 14, 2023 Page 6 Prior amendments within the past 10 years are Vivante Senior Housing and Residences at Newport Center projects. Charter Section 423 requires consideration of 80 percent of prior increases. Upon approval of the project, the Proposed Project will be added to the L1 Tracking Table as such: Project Name Date Amendment Square Dwelling AM Peak PM Peak Approved Description Footage Unit Hour Trip Hour Trip Change Chan a Change Change Vivante Senior 8/13/2019 Private Institutions (Reduction: 90 26 52 Housing (PI) to Mixed Use 45,028 to Horizontal (MU- 16,000) H3 Residences at 9/28/2021 Regional 0 28 3 2 Newport Center Commercial Office (CO-R) to Planned Community (PC- 61 Tennis and TBD 14 Hotel Rooms, 14,000 0 26.21 51.22 Pickleball 4 Tennis Courts, Club at and 14 Pickleball Newport Courts Beach 100% Totals 14,000 118 55.21 105.2 80% Totals 11,200 94 44.17 84.16 Remaining 28,800 6 55.83 15.84 Capacity Without Vote Local Coastal Program Amendment The proposed amendment to the Local Coastal Program Implementation Plan (Title 21) is consistent with the Coastal Land Use Plan (CLUP), which designates the property as MU-H/PR (Mixed Use Horizontal/Parks and Recreation). This designation allows horizontally -distributed mix of uses, which may include general or neighborhood commercial, commercial offices, multi -family residential, visitor -servicing and marine - related uses, buildings that vertically integrate residential with commercial uses, and active public or private recreational uses, including parks, golf courses, marina support facilities, aquatic facilities, tennis clubs and courts, private recreation, and similar facilities. The Proposed Project is a request to increase existing uses which have been previously permitted. The project is a mixture of uses which include a tennis and pickleball club consisting of a tennis and pickleball clubhouse, four tennis courts and 14 pickleball courts, a 41-unit hotel development and ancillary uses, and five residential units. All of these uses are intended to provide an updated, visitor -serving and recreational facility to serve the residents and visitors of the city. Additionally, the amendment is consistent with applicable land use policies of the CLUP, as provided in the attached Draft Resolution. Therefore, an amendment to the CLUP is not necessary as there is no change in coastal land use. Title 21 includes specific development standards for development of the project site specifically for the Approved Project. The applicant's request to modify and expand the future project requires an amendment to Title 21 to revise the development standards listed in Section 21.26.055.S. The following amendments are proposed: 21-6 Ordinances Nos. 2023-18 and 2023-19: Tennis and Pickleball Club at Newport Beach — 1602 East Coast Highway (PA2021-260) November 14, 2023 Page 7 1. The amendment modifies the density and intensity limit for the number of tennis courts from seven to four courts and adds 14 pickleball courts. The addition of the pickleball courts increases the minimum required parking from 28 spaces to 72 spaces (4 spaces per court). There is no change to the 3,725-square-foot limit for the tennis and pickleball clubhouse. 2. The number of residential units remains unchanged. However, the amendment converts three of the five single-family residences to attached residential condominium units. Therefore, the amendment revises the density and intensity limit for the residential use from five to two single-family residences and removes previous development standards for three single-family residences previously referred to as Villas C, D and E. 3. The amendment includes new development standards for attached residential condominiums, which have a density limit of three units and maximum gross floor area of 15,035 square feet. The maximum height allowed for the condominium buildings is 50 feet. The buildings are required to be set back 5 feet from any property line. The remaining single-family residences require a minimum of two enclosed parking spaces and one guest parking space per unit, while the proposed attached condominiums require a minimum of three enclosed parking spaces and one guest parking space per unit. 4. The amendment revises the density and intensity limits for the hotel from 27 to 41 short-term guest rental rooms. Additionally, the maximum allowable gross floor area increases from 28,300 to 47,484 square feet, and square footage for ancillary hotel uses are included. A minimum of one space per hotel unit is required. Planned Community Development Plan Amendment In 2012, the City Council adopted NBCC Planned Community Development Plan (PC-47) for the subject site as part of the Approved Project that also includes the adjacent Newport Beach Country Club Golf Course site. All proposed changes as part of the Proposed Project are limited to the Tennis and Pickleball Club (formerly referred to as Tennis Club) site and do not apply to the Golf Course site. The Proposed Project is consistent with the intent and purpose of PC-47 in that the Tennis and Pickleball club, hotel and residential uses and their development standards have already been allowed and are in place on the Tennis and Pickleball Club site. The 31 existing pickleball courts are of interim use and have been determined to be ancillary to the tennis club. The proposed changes are minor adjustments to the building height, setbacks and parking standards in order to accommodate the Proposed Project. Additionally, PC-47 provides guidelines for architectural design to include coordinated and cohesive architecture which exhibits quality in keeping with the surrounding area in Newport Center. The Proposed Project includes additional hotel rooms and two attached residential condominium loft buildings. The proposed additions are designed to be compatible with the approved architectural design of the Approved Project. PC-47 permits structures to be a maximum of 50 feet in height. The Proposed Project includes two attached residential condominium loft buildings and additional hotel rooms to be at a maximum of 46 feet high and comply with the height limit. 21-7 Ordinances Nos. 2023-18 and 2023-19: Tennis and Pickleball Club at Newport Beach — 1602 East Coast Highway (PA2021-260) November 14, 2023 Page 8 Development Agreement On March 27, 2012, the City Council approved the 2012 Development Agreement (DA2008-001) with the Applicant for the Approved Project. The 2012 Development Agreement was executed and recorded on January 29, 2014, with a 10-year term. The 2012 Development Agreement included public benefit fees of $93,000 per each residential dwelling unit and $10 per square foot of construction for the tennis clubhouse. These fees were subject to annual adjustments, based on the CPI index. On July 12, 2022, the City Council adopted Ordinance No. 2022-16, approving an amendment to extend the term of the 2012 Development Agreement by one year to allow additional time for staff to evaluate the Proposed Project. The 2012 Development Agreement expired on September 23, 2023. However, since the Proposed Project includes an amended scope of work, a new Development Agreement is required as it includes an increased number of hotel units. This is considered to be new, additional, non-residential development in Statistical Area L1 (Newport Center/Fashion Island). In accordance with Newport Beach Municipal Code Section 15.45.020.A.2.c a new Development Agreement (2023 Development Agreement) is required as the Proposed Project consists of new non-residential development in Statistical Area L1 (Newport Center/Fashion Island). The applicant requests a 15-year term for the agreement pursuant to Section 15.45.070 (Amendment/Cancellation). The 2023 Development Agreement provides assurance that the applicant may proceed with the Proposed Project in accordance with existing policies, rules and regulations, and conditions of approval. Additionally, the 2023 Development Agreement helps the applicant avoid a waste of resources and escalated costs for the Proposed Project, while encouraging a commitment to private participation in comprehensive planning. The 2023 Development Agreement provides vested rights to develop the Proposed Project subject to the term. The City negotiated the public benefit fees of $126,990 per each residential dwelling unit and $13.65 per square foot of construction for the tennis and pickleball clubhouse, for a total of $685,796.25. As recommended by the Planning Commission at its March 23, 2023 meeting, these fees reflect the adjusted public benefit fees of the 2012 DA based on annual adjustments of the Consumer Price Index (CPI). Additionally, these fees are subject to annual adjustments based on the CPI, for the duration of the 2023 Development Agreement. In addition to the 15-year term, the 2023 Development Agreement specifies the updated permitted uses, density and intensity, and maximum height and size of proposed buildings, consistent with the Proposed Project. The 2023 Development Agreement includes all mandatory elements, including public benefits that are appropriate to support conveying the vested development rights consistent with the City's General Plan, NBMC, and Government Code Sections 65864 et seq. 21-8 Ordinances Nos. 2023-18 and 2023-19: Tennis and Pickleball Club at Newport Beach — 1602 East Coast Highway (PA2021-260) November 14, 2023 Page 9 Planning Commission Review and Recommendation The Planning Commission held a public hearing on March 23, 2023. The main topics discussed by the Planning Commission were the inclusion of pickleball as part of the project, and the duration and public benefit fees of the proposed development agreement. One member of the public addressed the Planning Commission regarding the Proposed Project. At the conclusion of the public hearing, the Planning Commission adopted Resolution No. PC2023-014, recommending the City Council approve the Proposed Project. The Planning Commission staff report, meeting minutes, and resolution are included for reference as Attachment Nos. F, G and H. FISCAL IMPACT: The applicant is required to reimburse the City for all costs associated with the review of the application. The applicant has agreed to the terms of the new DA stated above that requires the payment of $685,796.25 in addition to all required permit fees and development impact fees. ENVIRONMENTAL REVIEW: On March 27, 2012, the Newport Beach City Council approved a Mitigated Negative Declaration and its Errata to Mitigated Negative Declaration (together referred to as "MND") that addressed the potential environmental effects associated with the Approved Project. Although the Proposed Project necessitates an amendment to the General Plan due to the increased number of hotel rooms and tennis courts, there are no proposed changes to the land uses permitted per the General Plan land use designation. Additionally, based on the changes associated with the Proposed Project, there are no conditions that would require the preparation of a subsequent or supplemental MND. As a result, an Addendum to the MND was prepared pursuant to Section 15162 (Subsequent EIRs and Negative Declarations) and 15164 (Addendum to an EIR or Negative Declaration) of the CEQA Guidelines. On the basis of the earlier MND and entire environmental review record including the Addendum, which has been updated to include the latest proposal with pickleball courts, the Proposed Project will not result in any new significant impacts that were not previously analyzed in the MND. The Addendum confirms and provides substantial evidence that the potential impacts associated with the Proposed Project would either be the same or less than those described in the MND, or as mitigated by applicable mitigation measures and standard conditions of approval in the MND. In addition, there are no substantial changes to the circumstances under which the Proposed Project would be undertaken that would result in new or more severe environmental impacts than previously addressed in either the MND, nor has any new information regarding the potential for new or more severe significant environmental impacts been identified. 21-9 Ordinances Nos. 2023-18 and 2023-19: Tennis and Pickleball Club at Newport Beach — 1602 East Coast Highway (PA2021-260) November 14, 2023 Page 10 Therefore, in accordance with Section 15164 of the CEQA Guidelines, an addendum to the previously adopted MND is the appropriate environmental document for the Proposed Project. In taking action to approve any of the requested applications for the Proposed Project, the data presented in the MND, as augmented by the Addendum for this Proposed Project, are considered as part of the record. NOTICING: The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). ATTACHMENTS: Attachment A — Resolution No. 2023-69 (Addendum to Mitigated Negative Declaration) Attachment B — Resolution No. 2023-70 (General Plan Amendment) Attachment C — Resolution No. 2023-71 (Local Coastal Program Amendment) Attachment D — Ordinance No. 2023-18 (Planned Community Amendment) Attachment E — Ordinance No. 2023-19 (Development Agreement) Attachment F — Planning Commission Staff Report (without attachments) Attachment G — Planning Commission Minutes Attachment H — Planning Commission Resolution No. PC2023-014 Attachment I — Planning Commission Correspondence Attachment J — Project Plans 21-10 Attachment A Resolution No. 2023-69 - Addendum to MND 21-11 RESOLUTION NO. 2023-69 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA, ADOPTING AN ADDENDUM TO MITIGATED NEGATIVE DECLARATION NO. ND2010-008 FOR THE TENNIS AND PICKLEBALL CLUB AT NEWPORT BEACH LOCATED AT 1602 EAST COAST HIGHWAY (PA2021-260) WHEREAS, Section 200 of the City of Newport Beach ("City") Charter vests the City Council with the authority to make and enforce all laws, rules, and regulations with respect to municipal affairs subject only to the restrictions and limitations contained in the Charter and the State Constitution, and the power to exercise, or act pursuant to any and all rights, powers and privileges, or procedures granted or prescribed by any law of the State of California; WHEREAS, on March 27, 2012, the City Council approved an application by Golf Realty Fund, Managing Owner ("Applicant") for the reconstruction of the 3,725-square-foot tennis clubhouse, a reduction of tennis courts from 24 to seven courts, construction of a 27- room boutique hotel with 9,700 square feet of ancillary uses, five single -unit residential units, and a development agreement for the property ("2012 Entitlements") located at 1602 East Coast Highway, and legally described as Parcels A, B, C, and D of Parcel Map No. 2016- 151 (commonly referred as the "Tennis Club Site" or "Property'); WHEREAS, on November 20, 2018, the Zoning Administrator approved Coastal Development Permit No. CD2017-039, authorizing the redevelopment of the Property consistent with the 2012 Entitlements (2012 Entitlements and Coastal Development Permit No. CD2017-039 are collectively referred to as the "Approved Project'); WHEREAS, on June 28, 2022, the City Council approved a one year extension of Development Agreement No. DA2008-001 which expired on September 23, 2023; WHEREAS, on November 2, 2021, the Applicant submitted an application to amend the Approved Project to include one additional tennis court for a total of eight courts, 14 additional hotel rooms for a total of 41 rooms, additional ancillary hotel uses, and three attached condominium units and two detached single -unit residences in -lieu of five detached single -unit residences ("2021 Project Application"); WHEREAS, on September 8, 2022, the Planning Commission held a public hearing and recommended approval of the 2021 Project Application to the City Council; 21-12 Resolution No. 2023- Page 2 of 8 WHEREAS, on September 27, 2022, the City Council held a public hearing on the 2021 Project Application but remanded it to the Planning Commission for further consideration of the pickleball use; WHEREAS, on October 11, 2022, the City Council adopted a motion to reconsider the 2021 Project Application; WHEREAS, on October 25, 2022, the City Council reconsidered the 2021 Project Application but continued the item to a future meeting after the Planning Commission considered an amendment to the project that includes pickleball courts; WHEREAS, the Property currently has 31 pickleball courts and 16 tennis courts, which will remain as an interim use until the Project (defined below) is fully implemented; WHEREAS, on December 6, 2022, the Applicant submitted a revised application to the Approved Project to decrease the number of future tennis courts from seven to four tennis courts, add 14 pickleball courts, increase the number of future hotel rooms from 27 to 41 rooms, increase the gross floor area of ancillary hotel uses by 4,686 square feet for a total of 14,386 square feet, provide three attached condominium units and two single - unit residences in -lieu of five single -unit residences, and approve a development agreement for a term of 15 years ("Project"); WHEREAS, the following land use approvals are requested or required for the Project: • General Plan Amendment (°GPA") —An amendment to Anomaly No. 46 of Table LU2 of the 2006 Newport Beach General Plan Land Use Element to document the conversion of 17 tennis courts to 27 hotel rooms and assignment of five residential units authorized by City Council Resolution No. 2012-10, the addition of 14 hotel rooms for a total of 41 rooms, the reduction from seven tennis courts to four tennis courts, and the addition of 14 pickleball courts; • Local Coastal Program Amendment ("LCPA") — An amendment to Newport Beach Country Club (PC-47) Planned Community Coastal Zoning District Development Standards set forth in Section 21.26.055(S)(2) of the Newport Beach Municipal Code ("NBMC") to modify the permitted uses and development standards allowed on the Property; 21-13 Resolution No. 2023- Page 3 of 8 + Planned Community Development Plan Amendment ("PCDP Amendment") — An amendment to Planned Community Development Plan No. 47 (Newport Beach Country Club Planned Community) to amend land use regulations and development standards on the Property; • Development Agreement ("DA") -- A new development agreement between the Applicant and the City, pursuant to Sections 15.45.020(A)(2)(c) (Buildings and Construction, Development Agreements Required, Development Agreement Required) and 15.45.070 (Buildings and Constructions, Development Agreements, Amendment/Cancellation) of the NBMC, which would provide vested right to develop the Project for a term of 15 years and negotiated public benefits to the City; and • Addendum to previously adopted Mitigated Negative Declaration No. ND-2010- 008 (SCH2O10091052) ("Addendum") — Pursuant to the California Environmental Quality Act ("CEQA"), the Addendum addresses reasonably foreseeable environmental impacts resulting from the Project; WHEREAS, the Property is designated Mixed -Use Horizontal 3/Parks and Recreation (MU-H31PR) by the City of Newport Beach General Plan and is located within the Newport Beach Country Club Planned Community (PC-47) Zoning District; WHEREAS, the Property is designated Mixed -Use Horizontal/Parks and Recreation (MU-HIPR) by the Coastal Land Use Plan and is located within the Newport Beach Country Club Planned Community (PC-47) Coastal Zoning District; WHEREAS, the Planning Commission held a public hearing on March 23, 2023, in the City Council Chambers, located at 100 Civic Center Drive, Newport Beach, California, at which time the Planning Commission considered the Project. A notice of time, place and purpose of the hearing was given in accordance with California Government Code Section 54950 et seq. ("Ralph M. Brown Act"), and Chapters 15.45 (Development Agreements), 20.56 (Planning Community District Procedures), 20.62 (Public Hearings) and 21.62 (Public Hearings) of the NBMC. Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this hearing; WHEREAS, at the hearing, the Planning Commission adopted Resolution No. PC2023-014 (5 ayes, 1 absent, 1 recusal) recommending approval of the Project to the City Council; and 21-14 Resolution No. 2023- Page 4 of 8 WHEREAS, the City Council held a public hearing on November 14, 2023, in the City Council Chambers, located at 100 Civic Center Drive, Newport Beach, California. A notice of time, place and purpose of the hearing was given in accordance with the Ralph M. Brown Act, and Chapters 15.45 (Development Agreements), 20.56 (Planning Community District Procedures), 20.62 (Public Hearings) and 21.62 (Public Hearings) of the NBMC. Evidence, both written and oral, was presented to, and considered by, the City Council at this hearing. NOW, THEREFORE, the City Council of the City of Newport Beach resolves as follows: Section 1: On March 27, 2012, the Newport Beach City Council approved Mitigated Negative Declaration No. ND2010-008 (SCH 2O10091052) and an Errata to Mitigated Negative Declaration No. ND2010-008 (together referred to as "MND") that addressed the potential environmental effects associated with the Approved Project. The MND was prepared in compliance with CEQA, as set forth in Section 21000 et seq. of the California Public Resources Code, the State CEQA Guidelines set forth in Title 14, Division 6, Chapter 3 of the California Code of Regulations, ("CEQA Guidelines"), and City Council Policy K-3. The MND is attached hereto as Exhibit "A" and incorporated herein by reference. Section 2: Pursuant to Section 21166 of the California Public Resources Code and Section 15162 of the CEQA Guidelines, when a negative declaration is adopted for a project, no subsequent negative declaration is required unless the lead agency determines, on the basis of substantial evidence in the light of the whole record, one or more of the following: a. Substantial changes are proposed in the project which will require major revisions of the previous negative declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; b. Substantial changes occur with respect to the circumstances under which the project is undertaken which will require major revisions of the previous negative declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; or 21-15 Resolution No. 2023- Page 5 of 8 c. New information of substantial importance, which was not known and could not have been known with the exercise of reasonable diligence at the time the negative declaration was adopted as complete, shows any of the following: i. The project will have one or more significant effects not discussed in the previous negative declaration; ii. Significant effects previously examined will be substantially more severe than shown in the adopted negative declaration; iii. Mitigation measures or alternatives previously found not to be feasible would in fact be feasible and would substantially reduce one or more significant effects of the project, but the project proponents decline to adopt the mitigation measures or alternatives; or iv. Mitigation measures or alternatives which are considerably different from those analyzed in the previous negative declaration would substantially reduce one or more significant effects on the environment, but the project proponents decline to adopt the mitigation measures or alternatives. Section 3: Although the Project necessitates an amendment to the General Plan due to the increased number of hotel rooms, reduction of tennis courts and addition of pickleball courts, there are no proposed changes to the land uses permitted per the General Plan land use designation. Additionally, based on the changes associated with the Project, there are no conditions that would require the preparation of a subsequent or supplemental MND. As a result, an Addendum to the MND was prepared pursuant to Section 15162 (Subsequent EIRs and Negative Declarations) and 15164 (Addendum to an EIR or Negative Declaration) of the CEQA Guidelines. 21-16 Resolution No. 2023- Page 6 of 8 Section 4: The following environmental topics were analyzed for the Project: Aesthetics, Air Quality, Biological Resources, Cultural Resources, Energy, Geology and Soils, Greenhouse Gas Emissions, Hazards and Hazardous Materials, Hydrology and Water Quality, Land Use and Planning, Noise, Population and Housing, Public Services, Recreation, Transportation, Utilities and Service Systems, and Wildfire. The Addendum includes new topics that were not included in the previous MND. Specifically, it includes a new energy section and new wildfire section. These additional analyses are appropriate for inclusion in the Addendum, but do not result in new or increased significant impacts that would require preparation of a subsequent MND pursuant to Section 15162 of the CEQA Guidelines. Section 5: On the basis of the MND and entire environmental review record, the reduction of tennis courts and addition of pickleball courts, hotel rooms, ancillary hotel uses, and conversion of three single -unit residences to condominium units will not result in any new significant impacts that were not previously analyzed in the MND, The Addendum confirms and provides substantial evidence that the potential impacts associated with this Project would either be the same or less than those described in the MND, or as mitigated by applicable mitigation measures in the MND. In addition, there are no substantial changes to the circumstances under which the Project would be undertaken that would result in new or more severe environmental impacts than previously addressed in either the MND, nor has any new information regarding the potential for new or more severe significant environmental impacts been identified. Therefore, in accordance with Section 15164 of the CEQA Guidelines, the Addendum to the previously adopted MND is the appropriate environmental document for the Project. In taking action to approve any of the requested applications for the Project, the data presented in the MND, as augmented by the Addendum for this Project, are considered part of the record. Section 6: The Addendum to the MND, which is attached hereto as Exhibit °B," and incorporated herein by reference, is hereby adopted by the City Council given its analysis and conclusions. The Addendum to the MND and related referenced documentation, including but not limited to Exhibits "A" and " B," constitute the administrative record upon which this decision was based, are on file with the Planning Division, City Hall, 100 Civic Center Drive, Newport Beach, California. 21-17 Resolution No. 2023- Page 7 of 8 Section 7: The City Council finds that judicial challenges to the City's CEQA determinations and approvals of land use projects are costly and time consuming. In addition, project opponents often seek an award of attorneys' fees in such challenges. As project applicants are the primary beneficiaries of such approvals, it is appropriate that such applicants should bear the expense of defending against any such judicial challenge, and bear the responsibility for any costs, attorneys' fees, and damages which may be awarded to a successful challenger. The Applicant shall indemnify, defend, and hold the City of Newport Beach harmless against any judicial challenge(s) to the City's approval of the MND. Section 8: The recitals provided in this resolution are true and correct and are incorporated into the operative part of this resolution. Section 9: If any section, subsection, sentence, clause or phrase of this resolution is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this resolution. The City Council hereby declares that it would have passed this resolution, and each section, subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional. 21-18 Resolution No. 2023- Page 8 of 8 Section 10: This resolution shall take effect immediately upon its adoption by the City Council, and the City Clerk shall certify the vote adopting the resolution. ADOPTED this 14k" day of November, 2023. Noah Blom Mayor ATTEST: Leilani I. Brown City Clerk APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Aaron C Harp City Att ney Attachment(s): Exhibit A - Mitigated Negative Declaration No. ND2010-008 and an Errata to Mitigated Negative Declaration No. ND2010-008 Exhibit B - Addendum to Mitigated Negative Declaration No. ND2010-008 and an Errata to Mitigated Negative Declaration No. ND2010-008 (MND) 21-19 Exhibit "A" Mitigated Negative Declaration No. ND2010-008 and an Errata to Mitigated Negative Declaration No. ND2010-008 (MND) Available separately due to bulk at: htt s://www.new ortboachca. ovl overnment/de artments/communit - develowe nVo tannin -division) ro'ects-environmental-document-download- pagelenvironmental-document-download-page-arch 21-20 Exhibit "B" Addendum to Mitigated Negative Declaration No. ND2010-008 and an Errata to Mitigated Negative Declaration No. ND2010-008 hftps://www.newportbeachca.govlpin/CEQA_REVI EW/Tennis_Club_At—Newport_Beach _Project Amendment/21358%20NB%20Tennis%20CIub%20Amendment%201s- Addendum 03.07.23.pdf 21-21 Attachment 6 Resolution No. 2023-70 - GPA 21-22 RESOLUTION NO. 2023-70 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA, APPROVING A GENERAL PLAN AMENDMENT FOR THE TENNIS AND PICKLEBALL CLUB AT NEWPORT BEACH LOCATED AT 1602 EAST COAST HIGHWAY (PA2021-260) WHEREAS, Section 200 of the City of Newport Beach ("City") Charter vests the City Council with the authority to make and enforce all laws, rules, and regulations with respect to municipal affairs subject only to the restrictions and limitations contained in the Charter and the State Constitution, and the power to exercise, or act pursuant to any and all rights, powers and privileges, or procedures granted or prescribed by any law of the State of California; WHEREAS, on March 27, 2012, the City Council approved an application by Golf Realty Fund, Managing Owner ("Applicant") for the reconstruction of the 3,725-square-foot tennis clubhouse, reduction of tennis courts from 24 to seven courts, construction of a 27- room boutique hotel with 9,700 square feet of ancillary uses, five single -unit residential units, and a development agreement for the property ("2012 Entitlements") located at 1602 East Coast Highway, and legally described as Parcels A, B, C, and D of Parcel Map No. 2016- 151 (commonly referred as the "Tennis Club Site" or "Property"); WHEREAS, on November 20, 2018, the Zoning Administrator approved Coastal Development Permit No. CD2017-039, authorizing the redevelopment of the Property consistent with the 2012 Entitlements (2012 Entitlements and Coastal Development Permit No. CD2017-039 are collectively referred to as the "Approved Project"); WHEREAS, on November 2, 2021, the Applicant submitted an application to amend the Approved Project to include one additional tennis court for a total of eight courts, 14 additional hotel rooms for a total of 41 rooms, additional ancillary hotel uses, and three attached condominium units and two detached single -unit residences in -lieu of five detached single -unit residences ("2021 Project Application"); WHEREAS, on June 28, 2022, the City Council approved a one year extension of Development Agreement No. DA2008-001 which expired on September 23, 2023; WHEREAS, on September 8, 2022, the Planning Commission held a public hearing and recommended approval of the 2021 Project Application to the City Council; 21-23 Resolution No. 2023- Page 2 of 13 WHEREAS, on September 27, 2022, the City Council held a public hearing on the 2021 Project Application but remanded it to the Planning Commission for further consideration of the pickleball use; WHEREAS, on October 11, 2022, the City Council adopted a motion to reconsider the 2021 Project Application; WHEREAS, on October 25, 2022, the City Council reconsidered the 2021 Project Application but continued the item to a future meeting after the Planning Commission considered an amendment to the project that included pickleball courts; WHEREAS, the Property currently has 31 pickleball courts and 16 tennis courts, which will remain as an interim use until the Project (defined below) is fully implemented; WHEREAS, on December 6, 2022, the Applicant submitted a revised application to the Approved Project to decrease the number of future tennis courts from seven to four tennis courts, add 14 pickleball courts, increase the number of future hotel rooms from 27 to 41 rooms, increase the gross floor area of ancillary hotel uses by 4,686 square feet, for a total of 14,386 square feet, provide three attached condominium units and two single -unit residences in -lieu of five single -unit residences, and approve a development agreement for a term of 15 years ("Project"); WHEREAS, the following land use approvals are requested or required for the Project: • General Plan Amendment ("GPA") -- An amendment to Anomaly No. 46 of Table LU2 of the 2006 Newport Beach General Plan Land Use Element to document the conversion of 17 tennis courts to 27 hotel rooms and assignment of five residential units authorized by City Council Resolution No. 2012-10, the addition of 14 hotel rooms for a total of 41 rooms, the reduction from seven tennis courts to four tennis courts, and the addition of 14 pickleball courts; • Local Coastal Program Implementation Plan Amendment ("LCPA") — An amendment to Newport Beach Country Club (PC-47) Planned Community Coastal Zoning District Development Standards set forth in Section 21.26.055(S)(2) of the Newport Beach Municipal Code ("NBMC") to modify the permitted uses and development standards allowed on the Property; 21-24 Resolution No. 2023- Page 3 of 13 • Planned Community Development Plan Amendment ("PCDP Amendment") — An amendment to Planned Community Development Plan No. 47 (Newport Beach Country Club Planned Community) to amend land use regulations and development standards on the Property; • Development Agreement ("DA") — A new development agreement between the Applicant and the City, pursuant to Sections 15.45.020(A)(2)(c) (Buildings and Construction, Development Agreements Required, Development Agreement Required) and 15,46.070 (Buildings and Constructions, Development Agreements, Amendment/Cancellation) of the NBMC, which would provide vested right to develop the Project for a term of 15 years and negotiated public benefits to the City; and • Addendum to previously adopted Mitigated Negative Declaration No. ND-2010- 008 (SCH2O10091052) ("Addendum") — Pursuant to the California Environmental Quality Act ("CEQA"), the Addendum addresses reasonably foreseeable environmental impacts resulting from the Project; WHEREAS, the Property is designated Mixed -Use Horizontal 3/Parks and Recreation (MU-H31PR) by the City of Newport Beach General Plan and is located within the Newport Beach Country Club Planned Community (PC-47) Zoning District; WHEREAS, the Property is designated Mixed -Use Horizontal/Parks and Recreation (MU-HIPR) by the Coastal Land Use Plan and is located within the Newport Beach Country Club Planned Community (PC-47) Coastal Zoning District; WHEREAS, the Planning Commission held a public hearing on March 23, 2023, in the City Council Chambers, located at 100 Civic Center Drive, Newport Beach, California, at which time the Planning Commission considered the Project. A notice of time, place and purpose of the hearing was given in accordance with California Government Code Section 54950 et seq. ("Ralph M. Brown Act"), and Chapters 15.45 (Development Agreements), 20.56 (Planning Community District Procedures), 20.62 (Public Hearings) and 21.62 (Public Hearings) of the NBMC. Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this hearing; WHEREAS, at the conclusion of the hearing, the Planning Commission adopted Resolution No. PC2023-014 (5 ayes, 1 absent, 1 recusal) recommending approval of the Project to the City Council; and 21-25 Resolution No. 2023- Page 4 of 13 WHEREAS, the City Council held a public hearing on November 14, 2023, in the City Council Chambers, located at 100 Civic Center Drive, Newport Beach, California. A notice of time, place and purpose of the hearing was given in accordance with the Ralph M. Brown Act, and Chapters 16.45 (Development Agreements), 20.56 (Planning Community District Procedures), 20.62 (Public Hearings) and 21.62 (Public Hearings) of the NBMC. Evidence, both written and oral, was presented to, and considered by, the City Council at this hearing. NOW, THEREFORE, the City Council of the City of Newport Beach resolves as follows: Section 1: The City Council has considered the recommendation of the Planning Commission and determined that modifications to the Project made by the City Council, if any, are not major changes that require referral back to the Planning Commission for consideration and recommendation. Section 2: The City Council hereby approves the General Plan Amendment, which is attached hereto as Exhibit "A," and incorporated herein by reference. Section 3: The City Council finds that judicial challenges to the City's CEQA determinations and approvals of land use projects are costly and time consuming. In addition, project opponents often seek an award of attorneys' fees in such challenges. As project applicants are the primary beneficiaries of such approvals, it is appropriate that such applicants should bear the expense of defending against any such judicial challenge, and bear the responsibility for any costs, attorneys" fees, and damages which may be awarded to a successful challenger. The Applicant shall indemnify, defend, and hold the City of Newport Beach harmless against any judicial challenges to the City's approval of the General Plan Amendment provided herein. Section 4: An amendment to the 2006 Newport Beach General Plan Land Use Element is a legislative act. Neither Title 20 (Planning and Zoning) nor California Government Code Section 65000 et seq., set forth any required findings for either approval or denial of such amendments. Nonetheless, the GPA is consistent with the following City of Newport Beach General Plan Land Use Element based upon the following: 21-26 Resolution No. 2023- Page 5 of 13 Findings and Facts in Support of General Plan Consistency: As part of the Approved Project, the City Council adopted Resolution No. 2012-10, which authorized the conversion of 17 tennis courts to 27 hotel rooms along with the redevelopment of the Property including the seven remaining tennis courts. The City Council found that the conversion of tennis courts to hotel rooms was consistent with the General Plan based upon the revitalization to Newport/Fashion Island area where the General Plan encourages additional hotel development and housing units, and the fact that the conversion did not create traffic impacts. At the time of the conversion, the 17 tennis courts generated 658 average daily trips based upon ITE Trip Generation Rates (7{h edition), while the 27 hotel rooms generated 221 average daily trips, resulting in a net decrease of 389 daily trips. With the amendment to the Approved Project, Anomaly No. 46 will be modified to include 14 additional hotel rooms, four tennis courts, and 14 pickleball courts. Together, a total of 41 hotel rooms (27+14 = 41 rooms) will be included in Anomaly No. 46. No change to the 3,725-square-foot Tennis and Pickleball Clubhouse is proposed. Finally, a maximum of five residential units have been specified in the Anomaly table. The GPA does not include a change in land use designation and would remain as Mixed -Use Horizontal 3/Parks and Recreation (MU-H31PR). The amendment to the Approved Project is consistent with the following General Plan policies: a. Land Use Element Policy LU9. I (Unique Environment). Maintain and enhance the beneficial and unique character of the different neighborhoods, business districts, and harbor that together identify Newport Beach. Locate and design development to reflect Newport Beach's topography, architectural diversity, and view sheds. The Project includes an amendment to the PC-47 District regulations on the tennis club site and reflects the proposed development on the Property. PC-47 will continue to guide development occurring within the Property. The development standards address building height, setbacks, landscaping, and architectural character. The standards are intended to ensure that the City's unique character is maintained through land use and architectural diversity. b. Land Use Element Policy LU1.2 (Citywide Identity). While recognizing the qualities that uniquely define its neighborhoods and districts, promote the identity of the entire City that differentiates it as a special place within the Southern California region. 21-27 Resolution No. 2023- Page 6 of 13 The area in which the Property is located is characterized by a variety of residential, commercial, and recreational land uses that reflect a range of architectural styles, that contribute to the unique character of the City. The intensity and architectural character of the Project are compatible with the variety of densities and styles within the area, which are consistent with the identity of the City. The architectural character of the Project, including the bungalow -style hotel rooms, detached residential units, and attached residential loft buildings, is consistent with the City's desire to differentiate Newport Beach from other coastal cities. C. Land Use Element Policy LU2.1 (Resident -Serving Land Uses). Accommodate uses that support the needs of Newport Beach's residents including housing, retail, services, employment, recreation, education, culture, entertainment, civic engagement, and social and spiritual activity that are in balance with community natural resources and open spaces. The Project will continue to provide residents with recreational opportunities, culture, entertainment, and civic engagement. The proposed amendment continues to support recreational uses by providing four tennis courts and 14 pickleball courts. The GPA provides an additional 14 hotel rooms to the previously approved 27-unit hotel development with additional hotel amenities for club members such as a Performance Therapy Center and Yoga Pavilion. d. Land Use Element Policy LU.2.6 (Visitor Serving Uses). Provide uses that serve visitors to Newport Beach's ocean, harbor, open spaces, and other recreational assets, while integrating them to protect neighborhoods and residents The Project provides visitors with an updated recreational facility as it includes a new Tennis and Pickleball Clubhouse, four tennis courts and 14 pickleball courts. Two of the 14 pickleball courts are proposed to be located within a new stadium. The Tennis and Pickleball Club is adjacent to a golf course with amenities and is within 2,000 feet of Newport Bay. The proposed 41 hotel rooms provide additional opportunities for visitors to enjoy the Tennis and Pickleball Club and nearby recreational activities. 21-28 Resolution No. 2023- Page 7 of 13 e. Land Use Element Policy LU3.2 (Growth and Change). Enhance existing neighborhoods, districts, and corridors, allowing for reuse and infill with uses that are complementary in type, form, scale, and character. Changes in use and/or density/intensity should be considered only in those areas that are economically underperforming, are necessary to accommodate Newport Beach's share of projected regional population growth, improve the relationship and reduce commuting distance between home and jobs, or enhance the values that distinguish Newport Beach as a special place to live for its residents. The scale of growth and new development shall be coordinated with the provision of adequate infrastructure and public services, including standards for acceptable traffic level of service. The character of the Tennis and Pickleball Club, hotel development, and residential units are compatible with the existing land uses and development intensities of the surrounding area. Although the reduction of three tennis courts and addition of 14 hotel rooms and 14 pickleball courts requires amendments to adopted plans and regulations, the existing tennis club and hotel development that are the substance of the Approved Project are allowed under the existing General Plan. The Project has been designed to be compatible with the existing residential, commercial, and recreational uses located within the vicinity of the Property. In addition, the surrounding area is adequately served by existing infrastructure, including circulation, water, sewer, and storm drainage systems. As a result, the implementation of the Project will not adversely affect those systems or the provision of adequate service to nearby development. f: Land Use Element Policy LU3.3 (Opportunities for Change). Provide opportunities for improved development and enhanced environments for residents in the following districts and corridors, as specified in Polices 6.3.1 through 6.22.7. Fashion Island/Newport Center: expanded retail uses and hotel rooms and development of residential in proximity to jobs and services, while limiting increases in office development. The Project enhances the Property by providing 41 hotel rooms, ancillary uses, five residential units, four tennis courts and 14 pickleball courts as well as the reconstruction of the Tennis and Pickleball Clubhouse. The Project will be utilized as a recreational facility for residents, guests, and club members. g. Land Use Element Policy LU4.1 (Land Use Diagram). Accommodate land use development consistent with the Land Use Plan. 21-29 Resolution No. 2023- Page 8 of 13 The Project is consistent with the designation of the General Plan Land Use Element, which designates the Property as MU-H31PR. The Property is located within Anomaly 46, which allocates 24 tennis courts with residential permitted in accordance with the MU-H3 designation. The GPA includes an amendment to the Development Limit (Other) of Anomaly 46, to reduce the number of tennis courts to four, add 14 pickleball courts, and include 41 hotel rooms. h. Land Use Element Policy LU5.1.2 (Compatible Interfaces). Require that the height of development in nonresidential and higher -density residential areas transition as it nears lower -density residential areas to minimize conflicts at the interface between the different types of development. Although the Property is not located adjacent to lower density residential development, the Project has been designed to respect the proximity of the existing residential development adjacent to the Property. The amended PC-47 prescribes maximum building heights and setback requirements for each of the development components to ensure land use compatibility. Building heights for the proposed structures will range from 46 feet for the attached residential loft buildings, 39 feet for the detached residential units, 31 feet for the hotel rooms, and 30 feet for the Tennis and Pickleball Clubhouse, which are within the maximum 50-foot building height allowed by PC-47. Land Use Element Policy LU (5.3.3). Require that properties developed with a mix of residential and non-residential uses be designed to achieve high levels of architectural quality in accordance with Policies 5.1.9 and 5.2.1 and planned to assure compatibility among the uses and provide adequate circulation and parking. Residential uses should be seamlessly integrated with non-residential uses through architecture, pedestrian walkways, and landscape. They should not be completely isolated by walls or other design elements. The Project includes four tennis courts, 14 pickleball courts, 41 hotel rooms and ancillary hotel uses, two single -unit residences, and three residential condominium units. The Project provides adequate parking for each of the proposed uses. Vehicular and pedestrian circulation has been designed to accommodate the residents, guests, and members of the Tennis and Pickleball Club and hotel development. The architectural character of the uses is defined in PC-47 to ensure that compatibility between proposed uses and the surrounding area is maintained. 21-30 Resolution No. 2023- Page 9 of 13 j. Land Use Element Policy LU5.3.4 (Districts Integrating Residential and Nonresidential Uses). Require that sufficient acreage be developed for an individual use located in a district containing a mix of residential and non- residential uses to prevent fragmentation and assure each use's viability, quality, and compatibility with adjoining uses. Each of the uses has been designed to complement the overall Project. The uses are connected by the vehicular and pedestrian circulation system, including sidewalks and pedestrian pathways. Land use compatibility is achieved through a common landscape theme and design guidelines in PC-47 to ensure that the architectural integrity of the Project is not compromised. k. Land Use Element Policy LU6.14.2 (Newport Center). Provide the opportunity for limited residential, hotel, and office development in accordance with the limits specified by Tables LU9 and LU2. The Project has a mix of land uses including single -unit residential, attached residential condominiums, recreational tennis and pickleball club facilities, and visitor -serving commercial uses. These uses are permitted in Table LU1 under the MU-H31PR land use designation. The GPA proposes to amend the development limits of Table LU2 to include four tennis courts, 14 pickleball courts, and 41 hotel rooms. 1. Land Use Element Policy LU6.14.6 (Pedestrian Connectivity and Amenity). Encourage that pedestrian access and connections among uses within the district be improved with additional walkways and streetscape amenities concurrent with the development of expanded and new uses. The Project provides for both pedestrian and vehicular access within the Property. Sidewalks and pedestrian pathways are incorporated into the circulation system that are intended to accommodate pedestrians utilizing the tennis club, hotel facilities, and future residents. A landscape plan has been provided which includes plant materials that are intended to reflect and complement the existing character within the project area. 21-31 Resolution No. 2023- Page 10 of 13 Tribal Consultation Finding: Pursuant to California Government Code Section 65352.3 (SB18), a local government is required to contact the appropriate tribes identified by the Native American Heritage Commission ("NAHC") each time it considers a proposal to adopt or amend the General Plan. If requested by any tribe, the local government must consult for the purpose of preserving or mitigating impacts to cultural resources. Fact in Support of Finding of Consistent : The City received comments from the NAHC indicating that twelve tribal contacts should be provided notice regarding the proposed amendment. The tribal contacts were provided notice on June 9, 2022. Subsequently, City staff corresponded with two tribes, Gabrielino Tongva Indians of California and Juaneno Band of Mission Indians. On January 17, 2023, the aforementioned tribes were provided a courtesy notification that the application has been modified to include pickleball courts. No further correspondence was requested by either tribe. California Government Code Section 65352.3 requires notification 90 days prior to Council action to allow tribal contacts to respond to the request to consult. The 90-day notification period expired on September 7, 2022. Section 5: Charter Section 423 requires voter approval of any major General Plan amendment to the General Plan. A major General Plan amendment is one that significantly increases allowed density or intensity by 40,000 square feet of non- residential floor area, increases traffic by more than 100 peak hour vehicle trips (AM or PM), or increases residential dwelling units by 100 units. These thresholds apply to the total increases resulting from the GPA itself, plus 80 percent of the increases resulting from other GPAs affecting the same neighborhood (defined as a Statistical Area as shown in the General Plan Land Use Element) and adopted within the preceding 10 years. Council Policy A-18 (Guidelines for Implementing Charter Section 423) requires that proposed amendments to the General Plan be reviewed to determine if a vote of the Newport Beach electorate would be required. This policy includes a provision that all General Plan amendments be tracked as "Prior Amendments" for 10 years to determine if minor amendments in a single Statistical Area cumulatively exceed the thresholds indicated above. 21-32 Resolution No. 2023- Page 11 of 13 Facts in Support Finding of Consistency with Charter Section 423: a. The Property is within Statistical Area U . Prior amendments within the past 10 years are Vivante Senior Housing and Residences at Newport Center. Charter Section 423 counts 80 percent of prior increases, which results in a cumulative increase of 94 dwelling units, 23 AM trips, and 43 PM trips between both projects. There were no square footage increases. b. The GPA results in an increase of 14,000 square feet (at the rate of 1,000 square feet per hotel unit) of non-residential floor area, 26.21 AM trips, and 51.22 PM trips. When combined with 80 percent of the prior increases, this results in cumulative increases of 14,000 square feet of non-residential floor area, 49.21 AM trips, and 94.22 PM trips. As none of the thresholds specified by Charter Section 423 are exceeded, no vote of the electorate is required if the City Council chooses to approve the GPA. Section 6: The recitals provided in this resolution are true and correct and are incorporated into the operative part of this resolution. Section 7: If any section, subsection, sentence, clause or phrase of this resolution is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this resolution. The City Council hereby declares that it would have passed this resolution, and each section, subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional. 21-33 Resolution No. 2023- Page 12 of 13 Section 8: An Addendum to Mitigated Negative Declaration No. ND2010-008 (MND) was prepared for the Project in compliance with the California Environmental Quality Act ("CEQA") set forth in California Public Resources Code Section 2100 et seq.; CEQA's implementing regulations set forth in CCR Title 14, Division 6, Chapter 3 (°CEQA Guidelines") and City Council Policy K-3 (Implementation Procedures for the California Environmental Quality Act) to ensure that the Project will not result in new or increased environmental impacts. On the basis of the MND and entire environmental review record, the reduction of three tennis courts and addition of 14 pickleball courts, 14 hotel rooms, and 4,686 square feet of ancillary hotel uses, and conversion of three single -unit residences to condominium units will not result in any new significant impacts that were not previously analyzed in the MND. The Addendum confirms and provides substantial evidence that the potential impacts associated with this Project would either be the same or less than those described in the MND, or as mitigated by applicable mitigation measures in the MND. In addition, there are no substantial changes to the circumstances under which the Project would be undertaken that would result in new or more severe environmental impacts than previously addressed in either the MND, nor has any new information regarding the potential for new or more severe significant environmental impacts been identified. Therefore, in accordance with Section 15164 of the CEQA Guidelines, the City Council adopted Resolution No. 2023- thereby adopting an addendum to the previously adopted MND. Resolution 2023- , including all findings contained therein, is hereby incorporated by reference. 21-34 Resolution No. 2023- Page 13 of 13 Section 9: This resolution shall become effective only after the approval of the Local Coastal Program Amendment No. PA2021-260 by the California Coastal Commission, and the City Clerk shall certify the vote adopting the resolution. ADOPTED this 14th day of November, 2023. Noah Blom Mayor ATTEST: Leilani I. Brown City Clerk APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Aaron C.1parp City Attofhey Attachment(s): Exhibit A - General Plan Amendment for the Tennis and Pickleball Club at Newport Beach 21-35 Exhibit A General Plan Amendment for the Tennis and Pickleball Club at Newport Beach Anomaly Number Statistical Area Land Use Designation Development Limit sf . Development Limit Other Additional Information. 46 L1 MU-H31PR 3,725 24. Tennis Courts Qos W 4 Tennis Courts permitted_in -nT aGGOrdanre_ with M1 Lwa 14 Pickleball Courts 5 residential units permitted 21-36 Attachment C Resolution No. 2023-71 - LCPA 21-37 RESOLUTION NO. 2023-71 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA, AUTHORIZING SUBMITTAL OF A LOCAL COASTAL PROGRAM AMENDMENT TO THE CALIFORNIA COASTAL COMMISSION TO AMEND THE NEWPORT BEACH COUNTRY CLUB PLANNED COMMUNITY DEVELOPMENT PLAN (PC-47) FOR THE TENNIS AND PICKLEBALL CLUB AT NEWPORT BEACH LOCATED AT 1602 EAST COAST HIGHWAY (PA2021-260) WHEREAS, as set forth in Section 30500 of the California Public Resources Code, the California Coastal Act requires each county and city to prepare a local coastal program ("LCP") for that portion of the coastal zone within its jurisdiction; WHEREAS, the California Coastal Commission effectively certified the City's Local Coastal Program Implementation Plan on January 13, 2017, and the City of Newport Beach ("City") added Title 21 (Local Coastal Program Implementation Plan) ("Title 21 ") to the Newport Beach Municipal Code ("NBMC") whereby the City assumed coastal development permit -issuing authority as of January 30, 2017; WHEREAS, on March 27, 2012, the City Council approved an application by Golf Realty Fund, Managing Owner ("Applicant") for the reconstruction of the 3,725-square-foot tennis clubhouse, a reduction of tennis courts from 24 to seven courts, construction of a 27- room boutique hotel with 9,700 square feet of ancillary uses and five single -unit residential units, and a development agreement for the property ("2012 Entitlements") located at 1602 East Coast Highway, and legally described as Parcels A, B, C, and D of Parcel Map No. 2016-151 (commonly referred as the "Tennis Club Site" or "Property"); WHEREAS, on November 20, 2018, the Zoning Administrator approved Coastal Development Permit No. CD2017-039, authorizing the redevelopment of the Property consistent with the 2012 Entitlements (2012 Entitlements and Coastal Development Permit No. CD2017-039 are collectively referred to as the "Approved Project"); WHEREAS, on November 2, 2021, the Applicant submitted an application to amend the Approved Project to include one additional tennis court for a total of eight courts, 14 additional hotel rooms for a total of 41 rooms, additional ancillary hotel uses, and three attached condominium units and two detached single -unit residences in -lieu of five detached single -unit residences ("2021 Project Application"); 21-38 Resolution No. 2023- Page 2 of 7 WHEREAS, on June 28, 2022, the City Council approved a one year extension of Development Agreement No. DA2008-001 which expired on September 23, 2023; WHEREAS, on September 8, 2022, the Planning Commission held a public hearing and recommended approval of the 2021 Project Application to the City Council; WHEREAS, on September 27, 2022, the City Council held a public hearing on the 2021 Project Application but remanded it to the Planning Commission for further consideration of the pickleball use; WHEREAS, on October 11, 2022, the City Council adopted a motion to reconsider the 2021 Project Application; WHEREAS, on October 25, 2022, the City Council reconsidered the 2021 Project Application but continued the item to a future meeting after the Planning Commission considered an amendment to the project that includes pickleball courts; WHEREAS, the Property currently has 31 pickleball courts and 16 tennis courts, which will remain as an interim use until the Project (defined below) is fully implemented; WHEREAS, on December 6, 2022, the Applicant submitted a revised application to the Approved Project to decrease the number of future tennis courts from seven to four tennis courts, add 14 pickleball courts, increase the number of future hotel rooms from 27 to 41 rooms, increase the gross floor area of ancillary hotel uses by 4,686 square feet for a total of 14,386 square feet, provide three attached condominium units and two single - unit residences in -lieu of five single -unit residences, and approve a development agreement for a term of 15 years ("Project"); WHEREAS, the following land use approvals are requested or required for the Project: • General Plan Amendment (" GPA") — An amendment to Anomaly No. 46 of Table LU2 of the 2006 Newport Beach General Plan Land Use Element to document the conversion of 17 tennis courts to 27 hotel rooms and assignment of five residential units authorized by City Council Resolution No. 2012-10, the addition of 14 hotel rooms for a total of 41 rooms, the reduction from seven tennis courts to four tennis courts, and the addition of 14 pickleball courts; 21-39 Resolution No. 2023- Page 3 of 7 + Local Coastal Program Amendment ("LCPA") — An amendment to Newport Beach Country Club (PC-47) Planned Community Coastal Zoning District Development Standards set forth in Section 21.26.055(S)(2) of the Newport Beach Municipal Code ("NBMC") to modify the permitted uses and development standards allowed on the Property; • Planned Community Development Plan Amendment ("PCDP Amendment") -- An amendment to Planned Community Development Plan No. 47 (Newport Beach Country Club Planned Community) to amend land use regulations and development standards on the Property; • Development Agreement ("DA") — A new development agreement between the Applicant and the City, pursuant to Sections 15.45.020(A)(2)(c) (Buildings and Construction, Development Agreements Required, Development Agreement Required) and 15.46.070 (Buildings and Constructions, Development Agreements, Amend ment/Cancellation) of the NBMC, which would provide vested right to develop the Project for a term of 15 years and negotiated public benefits to the City; and • Addendum to previously adopted Mitigated Negative Declaration No. ND-2010- 008 (SCH2O10091052) ("Addendum") — Pursuant to the California Environmental Quality Act ("CEQA"), the Addendum addresses reasonably foreseeable environmental impacts resulting from the Project; WHEREAS, the Property is designated Mixed -Use Horizontal 3/Parks and Recreation (MU-H31PR) by the City of Newport Beach General Plan and is located within the Newport Beach Country Club Planned Community (PC-47) Zoning District; WHEREAS, the Property is designated Mixed -Use Horizontal/Parks and Recreation (MU-HIPR) by the Coastal Land Use Plan and is located within the Newport Beach Country Club Planned Community (PC-47) Coastal Zoning District; WHEREAS, the Project includes an amendment to Title 21 (Local Coastal Program Implementation Plan) ("Title 21") related to development standards for the tennis club site located within the Newport Beach Country Club Planned Community (PC-47); WHEREAS, Title 21 includes specific development standards for the Approved Project and, as a result, an amendment to Title 21 is necessary to revise the development standards listed in Section 21.26.055(S) which specifically refers to the PC-47 development standards of the "Tennis Club," "The Villas," and "The Bungalows"; 21-40 Resolution No. 2023- Page 4 of 7 WHEREAS, pursuant to Section 13515 of the California Code of Regulations Title 14, Division 5.5, Chapter 8 ("Section 13515"), drafts of Local Coastal Program Amendment No. PA2021-260 were made available and a Notice of Availability was distributed on December 21, 2022, at least six weeks prior to the anticipated final action date; WHEREAS, the Planning Commission held a public hearing on March 23, 2023, in the City Council Chambers, located at 100 Civic Center Drive, Newport Beach, California, at which time the Planning Commission considered the Project. A notice of time, place and purpose of the hearing was given in accordance with California Government Code Section 54950 et seq. ("Ralph M. Brown Act"), Section 13615, and Chapters 16.45 (Development Agreements), 20.56 (Planning Community District Procedures), 20.62 (Public Hearings) and 21.62 (Public Hearings) of the NBMC. Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this hearing; WHEREAS, at the hearing, the Planning Commission adopted Resolution No. PC2023-014 (5 ayes, 1 absent, 1 recusal) recommending approval of the Project to the City Council; and WHEREAS, the City Council held a public hearing on November 14, 2023, in the City Council Chambers, located at 100 Civic Center Drive, Newport Beach, California. A notice of time, place and purpose of the hearing was given in accordance with the Ralph M. Brown Act, Section 13515, and Chapters 15.45 (Development Agreements), 20.56 (Planning Community District Procedures), 20.62 (Public Hearings) and 21.62 (Public Hearings) of the NBMC. Evidence, both written and oral, was presented to, and considered by, the City Council at this hearing. NOW, THEREFORE, the City Council of the City of Newport Beach resolves as follows: Section 1: The City Council does hereby authorize City staff to submit Local Coastal Program Amendment No. PA2021-260 amending Chapter 21.26.055(S) (Newport Beach Country Club) of Title 21 (Local Coastal Program Implementation Plan) of the NBMC, which attached hereto as Exhibit "A" and incorporated herein by reference, to the California Coastal Commission for review and approval. Section 2: Local Coastal Program Amendment No. PA2021-260 shall not become effective until approval by the California Coastal Commission and adoption, including any modifications suggested by the California Coastal Commission, by resolution(s) and/or ordinance(s) of the City Council of the City of Newport Beach. 21-41 Resolution No. 2023- Page 5 of 7 Section 3: The City Council finds that judicial challenges to the City's CEQA determinations and approvals of land use projects are costly and time consuming. In addition, project opponents often seek an award of attorneys' fees in such challenges. As project applicants are the primary beneficiaries of such approvals, it is appropriate that such applicants should bear the expense of defending against any such judicial challenge, and bear the responsibility for any costs, attorneys' fees, and damages which may be awarded to a successful challenger. The Applicant shall indemnify, defend and hold the City of Newport Beach harmless against any judicial challenges to the City's authorization to submit the Local Coastal Program Amendment to the California Coastal Commission for approval. Section 4: The recitals provided in this resolution are true and correct and are incorporated into the operative part of this resolution. Section 5: If any section, subsection, sentence, clause or phrase of this resolution is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this resolution. The City Council hereby declares that it would have passed this resolution, and each section, subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional. 21-42 Resolution No. 2023- Page 6 of 7 Section 6: An Addendum to Mitigated Negative Declaration No. ND2010-008 (MND) was prepared for the Project in compliance with the California Environmental Quality Act ("CEQA") set forth in California Public Resources Code Section 2100 et seq.; CEQA's implementing regulations set forth in CCR Title 14, Division 6, Chapter 3 (°CEQA Guidelines") and City Council Policy K-3 (Implementation Procedures for the California Environmental Quality Act) to ensure that the Project will not result in new or increased environmental impacts. On the basis of the MND and entire environmental review record, the reduction of three (3) tennis courts and addition of 14 pickleball courts, 14 hotel rooms, and 4,686 square feet of ancillary hotel uses, and conversion of three single -unit residences to condominium units will not result in any new significant impacts that were not previously analyzed in the MND. The Addendum confirms and provides substantial evidence that the potential impacts associated with this Project would either be the same or less than those described in the MND, or as mitigated by applicable mitigation measures in the MND. In addition, there are no substantial changes to the circumstances under which the Project would be undertaken that would result in new or more severe environmental impacts than previously addressed in either the MND, nor has any new information regarding the potential for new or more severe significant environmental impacts been identified. Therefore, in accordance with Section 15164 of the CEQA Guidelines, the City Council adopted Resolution No. 2023- , thereby adopting an addendum to the previously adopted MND. Resolution 2023- , including all findings contained therein, is hereby incorporated by reference. 21-43 Resolution No. 2023- Page 7 of 7 Section 7: This resolution shall take effect immediately upon its adoption by the City Council, and the City Clerk shall certify the vote adopting the resolution. ADOPTED this 14th day of November, 2023. Noah Blom Mayor ATTEST: Leilani I. Brown City Clerk APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Aaron . Harp City Att rney Attachment(s): Exhibit A — Local Coastal Program Amendment No. PA2021-260 Related to Standards of the Tennis and Pickleball Club located within the Newport Beach Country Club Planned Community (PC-47) 21-44 Exhibit "A" Local Coastal Program Amendment No, PA2021-260 Related to Standards of the Tennis and Pickleball Club Property located within the Newport Beach Country Club Planned Community (PC-47) 21-45 Local Coastal Program Implementation Plan Amendment Related to Development Standards of the Tennis and Pickleball Club portion within the Newport Beach Country Club Planned Community (PC-47) (PA2021-260) Amend Section 21.26.055(S)(2)-(4) (Newport Beach Country Club) of Title 21 (Local Coastal Program Implementation Plan) of the Newport Beach Municipal Code to read as follows: S. Newport Beach Country Club (PC-47). 2. Tennis and Pickleball Club. a. Density/intensity limit: sever four (4) tennis courts, fourteen (14) pickleball courts, and three thousand seven hundred twenty-five (3,725) square foot clubhouse. b. Height: thirty (30) feet for clubhouse. c. Parking: twenty-eight (29) spaGes seventy-two (72) spaces. 3. Residential. a. Detached Residential Thus i. Density/intensity limit: f+ve two single-family dwelling units. ii. Development Standards: al+F}a Dwelling Unit V44a Single -Family V41a Single -Family Dwelling B Designation Dwelling A (TTM Lot #1) 1 (TTM Lot #2) Lot Size 5,000 square feet minimum Lot Coverage (Maximum) 70% 65% 39 feet, measured in accordance with the Height and Grade Building Height definition of Section 2.0 General Conditions and Regulations Building Side Yard Setbacks 3 feet minimum Building Front and Rear Yard 5 feet minimum Setbacks Enclosed Parking Space for 2 2 Each Unit Open Guest Parking Space One space - could be located on the private driveway — No for Each Unit overhang to the private street/cul-de-sac is allowed 21-46 b. Attached Residential (Condominiums) i. Density/intensity limit: three (3) attached residential units. ii. Development Standards: Setbacks: 5 feet minimum from any propertyline Height: 46 feet (to be located atop of the 2-story hotel buildings) Parking: 3 enclosed spaces and one guest space per dwelling unit a. Density/intensity Limit: The maximum allowable number of the buRgalews hotel rooms shall be twenty seven r2" forty-one (41) short-term guest rental rooms. The maximum total allowable gross floor area for the hotel rooms shall be tWeRty eight thousand three hundred (28,300) forty-seven thousand four hundred eighty-four (47,484) square feet with a two thousand two hundred (2,200) square - foot concierge aPA guest center, four thousand six hundred eighty-six (4,686) square feet of ancillary hotel uses, and a seven thousand five hundred (7,500) square -foot spa facility. b. Setbacks: five feet from any property line. c. Height: thirty-one (31) feet. d. Parking: +hirty four (34) narking GPaGeo forty-one (41) parking spaces. 21-47 Attachment D Ordinance No. 2023-18 - PCA 21-48 ORDINANCE NO. 2023-18 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA, APPROVING AN AMENDMENT TO THE NEWPORT BEACH COUNTRY CLUB PLANNED COMMUNITY DEVELOPMENT PLAN (PC-47) FOR THE TENNIS AND PICKLEBALL CLUB AT NEWPORT BEACH LOCATED AT 1602 EAST COAST HIGHWAY (PA2021-260) WHEREAS, Section 200 of the City of Newport Beach ("City") Charter vests the City Council with the authority to make and enforce all laws, rules, and regulations with respect to municipal affairs subject only to the restrictions and limitations contained in the Charter and the State Constitution, and the power to exercise, or act pursuant to any and all rights, powers and privileges, or procedures granted or prescribed by any law of the State of California; WHEREAS, on March 27, 2012, the City Council approved an application by Golf Realty Fund, Managing Owner ("Applicant") for the reconstruction of the 3,725-square-foot tennis clubhouse, reduction of tennis courts from 24 to seven courts, construction of a 27- room boutique hotel with 9,700 square feet of ancillary uses, five single -unit residential units, and a development agreement for the property ("2012 Entitlements") located at 1602 East Coast Highway, and legally described as Parcels A, B, C, and D of Parcel Map No. 2016-151 (commonly referred as the "Tennis Club Site" or "Property"); WHEREAS, on November 20, 2018, the Zoning Administrator approved Coastal Development Permit No. CD2017-039, authorizing the redevelopment of the Property consistent with the 2012 Entitlements (2012 Entitlements and Coastal Development Permit No. CD2017-039 are collectively referred to as the "Approved Project"); WHEREAS, on June 28, 2022, the City Council approved a one year extension of Development Agreement No. DA2008-001 which expired on September 23, 2023; WHEREAS, on November 2, 2021, the Applicant submitted an application to amend the Approved Project to include one additional tennis court for a total of eight courts, 14 additional hotel rooms for a total of 41 rooms, additional ancillary hotel uses, and three attached condominium units and two detached single -unit residences in -lieu of five detached single -unit residences ('2021 Project Application"); WHEREAS, on September 8, 2022, the Planning Commission held a public hearing and recommended approval of the 2021 Project Application to the City Council; 21-49 Ordinance No. 2023- Page 2 of 7 WHEREAS, on September 27, 2022, the City Council held a public hearing on the 2021 Project Application but remanded the project to the Planning Commission for further consideration of the pickleball use; WHEREAS, on October 11, 2022, the City Council adopted a motion to reconsider the 2021 Project Application; WHEREAS, on October 25, 2022, the City Council reconsidered the 2021 Project Application but City Council continued the item to a future meeting after the Planning Commission considered an amendment to the project that includes pickleball courts; WHEREAS, the Property currently has 31 pickleball courts and 16 tennis courts, which will remain as an interim use until the Project (defined below) is fully implemented; WHEREAS, on December 6, 2022, the Applicant submitted a revised application to the Approved Project to decrease the number of future tennis courts from seven to four tennis courts, add 14 pickleball courts, increase the number of future hotel rooms from 27 to 41 rooms, increase the gross floor area of ancillary hotel uses by 4,686 square feet, for a total of 14,386 square feet, provide three attached condominium units and two single -unit residences in -lieu of five single -unit residences, and approve a development agreement for a term of 15 years ("Project"); WHEREAS, the following land use approvals are requested or required for the Project: • General Plan Amendment (" GPA") — An amendment to Anomaly No. 46 of Table LU2 of the 2006 Newport Beach General Plan Land Use Element to document the conversion of 17 tennis courts to 27 hotel rooms and assignment of five residential units authorized by City Council Resolution No. 2012-10, the addition of 14 hotel rooms for a total of 41 rooms, the reduction from seven tennis courts to four tennis courts, and the addition of 14 pickleball courts; • Local Coastal Program Amendment ("LCPA") — An amendment to Newport Beach Country Club (PC-47) Planned Community Coastal Zoning District Development Standards set forth in Section 21.26.055(S)(2) of the Newport Beach Municipal Code ("NBMC") to modify the permitted uses and development standards allowed on the Property; 21-50 Ordinance No. 2023- Page 3 of 7 • Planned Community Development Plan Amendment ("PCDP Amendment") — An amendment to Planned Community Development Plan No. 47 (Newport Beach Country Club Planned Community) to amend land use regulations and development standards on the Property; • Development Agreement ("DA") — A new development agreement between the Applicant and the City, pursuant to Sections 15.45.020(A)(2)(c) (Buildings and Construction, Development Agreements Required, Development Agreement Required) and 15.45.070 (Buildings and Constructions, Development Agreements, Amendment/Cancellation) of the NBMC, which would provide vested right to develop the Project for a term of 15 years and negotiated public benefits to the City; and • Addendum to previously adopted Mitigated Negative Declaration No. ND- 2010-008 (SCH2010091052) ("Addendum") — Pursuant to the California Environmental Quality Act ("CEQA"), the Addendum addresses reasonably foreseeable environmental impacts resulting from the Project; WHEREAS, the Property is designated Mixed -Use Horizontal 3/Parks and Recreation (MU-H31PR) by the City of Newport Beach General Plan and is located within the Newport Beach Country Club Planned Community (PC-47) Zoning District; WHEREAS, the Property is designated Mixed -Use Horizontal/Parks and Recreation (MU-H/PR) by the Coastal Land Use Plan and is located within the Newport Beach Country Club Planned Community (PC-47) Coastal Zoning District; WHEREAS, the Planning Commission held a public hearing on March 23, 2023, in the City Council Chambers, located at 100 Civic Center Drive, Newport Beach, California, at which time the Planning Commission considered the Project. A notice of time, place and purpose of the hearing was given in accordance with California Government Code Section 54950 et seq. ("Ralph M. Brown Act"), and Chapters 15.45 (Development Agreements), 20.56 (Planning Community District Procedures), 20.62 (Public Hearings) and 21.62 (Public Hearings) of the NBMC. Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this hearing; WHEREAS, at the hearing, the Planning Commission adopted Resolution No. PC2023-014 (5 ayes, 1 absent, 1 recusal) recommending approval of the Project to the City Council; and 21-51 Ordinance No. 2023- Page 4 of 7 WHEREAS, the City Council held a public hearing on November 14, 2023, in the City Council Chambers, located at 100 Civic Center Drive, Newport Beach, California. A notice of time, place and purpose of the hearing was given in accordance with the Ralph M. Brown Act, and Chapters 15.45 (Development Agreements), 20.56 (Planning Community District Procedures), 20.62 (Public Hearings) and 21.62 (Public Hearings) of the NBMC. Evidence, both written and oral, was presented to, and considered by, the City Council at this hearing. NOW THEREFORE, the City Council of the City of Newport Beach ordains as follows: Section 1: The City Council has considered the recommendation of the Planning Commission and determined that modifications to the Project made by the City Council, if any, are not major changes that require referral back to the Planning Commission for consideration and recommendation. Section 2: An amendment to PC-47, which is the zoning document for the Property, is a legislative act. Neither PC-47, Chapter 20.56 (Planning and Zoning, Planned Community District Procedures), nor Chapter 20.66 (Planning and Zoning, Amendments) of Title 20 (Planning and Zoning) of NBMC, or Article 2 (Adoption of Regulations) of Chapter 4 (Zoning Regulations) of Division 1 (Planning and Zoning) of Title 7 (Planning and Land Use) of the California Government Code set forth any required findings for either approval or denial of such amendments. Nevertheless, amending PC-47 to change the development standards as it relates to the Tennis and Pickleball Club is consistent with the purpose of the Planned Community Districts as specified in Section 20.56.010 (Planned Community District Procedures — Purpose) of the NBMC for the reasons set forth below: a. The Project is consistent with the intent and purpose of PC-47 in that the tennis club, hotel, and residential uses and their development standards have already been allowed and in place on the Property. The Project includes tennis courts and pickleball courts that are ancillary to the club and consistent with the intended recreational uses allowed at the Property. The proposed changes to the building height, setbacks, and parking standards to accommodate the Project are within the development standards in place for the Approved Project. 21-52 Ordinance No. 2023- Page 5 of 7 b. PC-47 provides guidelines for architectural design to include coordinated and cohesive architecture which exhibits quality that is keeping with the surrounding area in Newport Center. The Project includes additional hotel rooms and two attached residential condominium loft buildings. The proposed additions have consistent architecture with the Approved Project, which has cohesive architectural features that include smooth plaster exterior siding, clay -tile roofs, and stone veneer exterior accent finishes. C. PC-47 permits structures to be a maximum of 50 feet in height. The Project includes two attached residential condominium loft buildings which features condominiums on the third level atop of a two -level hotel building. The loft buildings are proposed to be a maximum of 46 feet high and comply with the height limit. All other structures are consistent with the maximum heights prescribed in PC-47. Section 3: The City Council hereby approves the Newport Beach Country Club Planned Community Development Plan Amendment, as set forth in Exhibit "A," which is attached hereto and incorporated herein by reference and finds that the amendment to PC-47 complies with the purpose set forth in Section 20.56.010 (Purpose) of the NBMC, with all other provisions of the existing Planned Community District Regulations and exhibits remaining unchanged and in full force and effect. Section 4: The City Council finds that judicial challenges to the City's CEQA determinations and approvals of land use projects are costly and time consuming. In addition, project opponents often seek an award of attorneys' fees in such challenges. As project applicants are the primary beneficiaries of such approvals, it is appropriate that such applicants should bear the expense of defending against any such judicial challenge, and bear the responsibility for any costs, attorneys' fees, and damages which may be awarded to a successful challenger. The Applicant shall indemnify, defend, and hold the City of Newport Beach harmless against any judicial challenges to the City's approval of the Planned Community Development Plan Amendment provided herein. Section 5: The recitals provided in this ordinance are true and correct and are incorporated into the substantive portion of this ordinance. 21-53 Ordinance No. 2023- Page 6 of 7 Section 6: If any section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this ordinance. The City Council hereby declares that it would have passed this ordinance and each section, subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional. Section 7: An Addendum to Mitigated Negative Declaration No. ND2010-008 (MND) was prepared for the Project in compliance with the California Environmental Quality Act ("CEQA") set forth in California Public Resources Code Section 2100 of seq.; CEQA's implementing regulations set forth in CCR Title 14, Division 6, Chapter 3 ("CEQA Guidelines") and City Council Policy K-3 (Implementation Procedures for the California Environmental Quality Act) to ensure that the Project will not result in new or increased environmental impacts. On the basis of the MND and entire environmental review record, the reduction of three tennis courts and addition of 14 pickleball courts, 14 hotel rooms, and 4,686 square feet of ancillary hotel uses, and conversion of three single -unit residences to condominium units will not result in any new significant impacts that were not previously analyzed in the MND. The Addendum confirms and provides substantial evidence that the potential impacts associated with this Project would either be the same or less than those described in the MND, or as mitigated by applicable mitigation measures in the MND. In addition, there are no substantial changes to the circumstances under which the Project would be undertaken that would result in new or more severe environmental impacts than previously addressed in either the MND, nor has any new information regarding the potential for new or more severe significant environmental impacts been identified. Therefore, in accordance with Section 15164 of the CEQA Guidelines, the City Council adopted Resolution No. 2023- , thereby adopting an addendum to the previously adopted MND. Resolution 2023- , including all findings contained therein, is hereby incorporated by reference. Section 8: This ordinance shall become effective only after the approval of the Local Coastal Program Amendment No. PA2021-260 by the California Coastal Commission. Section 9: Except as expressly modified in this ordinance, all other sections, subsections, terms, clauses and phrases set forth in the NBMC or other planned community shall remain unchanged and shall be in full force and effect. 21-54 Ordinance No. 2023- Page 7 of 7 Section 10: The Mayor shall sign and the City Clerk shall attest to the passage of this ordinance. The City Clerk shall cause the ordinance, or a summary thereof, to be published pursuant to City Charter Section 414. This ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach held on the 14th day of November, 2023, and adopted on the 28th day of November, 2023, by the following vote, to -wit: AYES: NAYS: ABSENT: NOAH BLOM, MAYOR ATTEST: LEILANI I. BROWN, CITY CLERK APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE AARON I HARP, WY ATTORNEY Attachment(s): Exhibit A - Newport Beach Country Club Planned Community Development Plan Amendment 21-55 Exhibit A Newport Beach Country Club Planned Community Development Plan Amendment Newport Beach Country Club Planned Community Development Plan Adoption: March 27, 2012, Ordinance No. 2012-2 Amendment: , 2023, Ordinance No._ 21-56 TABLE OF CONTENTS 1.0 Introduction and Purpose............................................................................... 4 2.0 General Conditions and Regulations.............................................................. 5 3.0 Land Use and Development Regulations....................................................... 10 3.1 Golf Club... .................... .......................................... ........................... 10 A. Golf Course.................................................................................... 10 B. Golf Clubhouse and Ancillary Uses ................................................ 10 1. Building Area............................................................................. 10 2. Building Height.......................................................................... 10 3. Permitted Ancillary Uses........................................................... 10 4. Parking...................................................................................... 11 5. Fencing..................................................................................... 11 3.2 Tennis and Pickleball Club................................................................... 11 A. Tennis and Pickleball Courts.......................................................... 11 1. Number of Courts...................................................................... 11 B. Tennis and Pickleball Clubhouse and Ancillary Uses ..................... 12 1. Building Area ............. ................................................................ 12 2. Building Height.......................................................................... 12 3. Permitted Ancillary Uses........................................................... 12 4. Parking...................................................................................... 12 3.3 Tho�las Residential ......................................................................... 12 1 Nurpha: of I knits Detached Residential ..................................... 13 2. DeVelopMeaat Standards Attached Residential .......................... 14 3.4 The B Rgal ,w s Hotel........................................................................... 14 1. Number of Units Rooms............................................................ 14 2. Permitted Ancillary Uses........................................................... 14 3. Building Area............................................................................. 14 4. Building Height.......................................................................... 15 5. Building Setbacks...................................................................... 15 6. Parking...................................................................................... 15 3.5 Signs.................................................................................................... 15 A. Sign Allowance............................................................................... 15 B. Sign Standards............................................................................... 16 4.0 Site Development Review.............................................................................. 17 4.1 Purpose............................................................................................... 17 4.2 Application........................................................................................... 17 4.3 Findings............................................................................................... 17 4.4 Contents.............................................................................................. 18 4.5 Public Hearing -- Required Notice........................................................ 18 4.6 Expiration and Revocation Site Plan Review Approvals ...................... 19 2 21-57 4.7 Fees................................................................................. ......... 19 4.8 Minor Changes by the Community Development Director ................... 19 LIST OF EXHIBITS Exhibit Name Exhibit Number VicinityAerial Map............................................................................................... A Conceptual Master Site Plan............................................................................... B LIST OF TABLES Table Name Page The�r�aa Residential Development Standards ................................................... 13 3 21-58 1.0 INTRODUCTION AND PURPOSE The Newport Beach Country Club Planned Community District {the PCD} is composed of the Golf Club, Tennis and Pickleball Club, SYRgalow6 hotel and Villas fa^i{it�^^ detached and attached residences, totaling approximately 43 140 acres. The PCD has been developed in accordance with the Newport Beach General Plan and is consistent with the Local Coastal Land Use Plan. The purpose of this PCD is to provide for the classification and development of coordinated, cohesive, comprehensive planning project with limited mixed uses, including the private Golf Club, Tennis and Pickleball Club, 2-7 shert-term rental l ini+^ 41-roam boutique hotel wed the B Rgalews with a spa/fitness area center and ancillary uses, and 5 vtN^rmrr-oi ncgle—up residential dwellings units ^a"tea V111;4q. Whenever the regulations contained in the PCD Regulations conflict with the regulations of the Newport Beach Municipal Code, the regulations contained in the PCD Regulations shall take precedence. The Newport Beach Municipal Code shall regulate all development within the PCD when such regulations are not provided within the PCD Regulations. rd 21-59 2.0 GENERAL CONDITIONS AND REGULATIONS 1. Alcoholic Beverage Consumption The consumption of alcoholic beverages within the PC❑ shall be in compliance with the State of California Department of Alcoholic Beverage Control and the Newport Beach Municipal Code. A use permit shall be required if the establishment operates past 11:00 p.m. any day of the week and a minor use permit shall be required if the establishment operates until 11:00 p.m. any day of the week. 2. Amplified Music All amplified music played after 10:00 p.m. within the PCD shall be confined within the interior of a building unless a Special Events Permit is obtained. 3. Archaeological/Paleontological Resources Development of the site is subject to the provisions of City Council Policies K-5 and K-6 regarding archaeological and paleontological resources. 4. Architectural Design All development shall be designed with high quality architectural standards and shall be compatible with the surrounding uses. The development should be well -designed with coordinated, cohesive architecture and exhibiting the highest level of architectural and landscape quality in keeping with the PCD's prominent location in the Newport Center Planning Area. Massing offsets, variation of roof lines, varied textures, openings, recesses, and design accents on all building elevations shall be provided to enhance the architectural style. Architectural treatments for all ancillary facilities (i.e. storage, truck loading and unloading, and trash enclosures) shall be provided. 5. Building Codes Construction shall comply with applicable provisions of the California Buiiding Code and the various other mechanical, electrical and plumbing codes related thereto as adopted by the Newport Beach Municipal Code. 6. Exterior Storage Areas There shall be no exterior storage areas permitted with the exception of the greenskeeperlmaintenance area which shall be enclosed by a minimum six-foot plastered block wall. y 21-60 7. Flood Protection Development of the subject property will be undertaken in accordance with the flood protection policies of the City. 8. Grading and Erosion Control Grading and erosion control measures shall be carried out in accordance with the provisions of the Newport Beach Excavation and Grading Code and shall be subject to permits issued by the Community Development Department. 9. Gross Floor Area Gross floor area shall be defined as the total area of a building including the surrounding exterior walls. 10. Height and Grade The height of any structure within the PCD shall not exceed fifty (50) feet, unless otherwise specified. The height of a structure shall be the vertical distance between the highest point of the structure and the grade directly below. In determining the height of a sloped roof, the measurement shall be the vertical distance between the grade and the midpoint of the roof plane, provided that no part of the roof shall be extend more than five (5) feet above the permitted height in the height limitation zone, and any amendments shall be subject to the review and approval of the Community Development Director 11. Landscapinglirrigation Landscaping and irrigation shall be provided in all areas not devoted to structures, parking lots, driveways, walkways, and tennis courts to enhance the appearance of the development, reduce heat and glare, control soil erosion, conserve water, screen adjacent land uses, and preserve the integrity of PCD. Landscaping and irrigation shall consist of a combination of trees, shrubs, groundcover and hardscape improvements. Landscaping shall be prepared in accordance with the Landscaping Standards and Water -Efficient Landscaping Sections of the Newport Beach Municipal Code and installed in accordance with the approved landscape plans prepared by a licensed landscape architect. U. Lighting —Outdoor All new outdoor lighting shall be designed, shielded, aimed, located and maintained to shield adjacent uses/properties and to not produce glare onto adjacent uses/properties. Lighting plans shall be prepared in compliance with the Outdoor Lighting Section of the 1*1 21-61 Newport Beach Municipal Code and shall be prepared by a licensed electrical engineer. All lighting and lighting fixtures that are provided shall be maintained in accordance with the approved lighting plans. 13. Lighting — Parking & Walkways All lighting and lighting fixtures that are provided shall be maintained in accordance with the approved lighting plans. Light standards within parking lots shall be the minimum height required to effectively illuminate the parking area and eliminate spillover of light and glare onto adjoining uses/properties and roadways. Parking lots and walkways accessing buildings shall be illuminated with a minimum of 0.5 foot-candle average on the driving or walking surface during the hours of operation and one hour thereafter. Lighting plans shall be prepared in compliance with the Outdoor Lighting Section of the Newport Beach Municipal Code and shall be prepared by a licensed electrical engineer. If the applicant wishes to deviate from this lighting standard, a lighting plan may be prepared by the applicant and submitted to the Community Development Director for review and approval. 14. Loading Areas for Non -Residential Uses All loading and unloading of goods delivery shall be performed onsite. Loading platforms and areas shall be screened from public view. 15. Parking Areas Parking spaces, driveways, maneuvering aisles, turnaround areas, and landscaping areas of the parking lots shall be kept free of dust, graffiti, and litter. All components of the parking areas including striping, paving, wheel stops, walls, and light standards of the parking lots shall be permanently maintained in good working condition. Access, location, parking space and lot dimensions, and parking lot improvements shall be in compliance with the Development Standards for Parking Areas Section of the Newport Beach Municipal Code. 16. Property Owner Approval Written property owner approval shall be required for the submittal of any site development review application and/or prior to grading and/or building permit issuance. 17. Outdoor Paging Outdoor paging shall be permitted at the Golf Club to call individuals to the tees and at the Tennis and Pickleball Club to call points during tennis and pickleball tournaments. 7 21-62 18. Sewage Disposal Sewage disposal service facilities for the PCD will be provided by Orange County Sanitation District No. 5 and shall be subject to applicable regulations, permits and fees as prescribed by the Sanitation District. 19. Screening of Mechanical Equipments All new mechanical appurtenances (e.g., air conditioning, heating, ventilation ducts and exhaust vents, swimming pool and spa pumps and filters, transformers, utility vaults and emergency power generators) shall be screened from public view and adjacent land uses. The enclosure design shall be approved by the Community Development Department. All rooftop equipment (other than vents, wind turbines, etc.) shall be architecturally treated or screened from off -site views in a manner compatible with the building materials prior to final building permit clearance for each new or remodeled building. The mechanical appurtenances shall be subject to sound rating in accordance with the Exterior Noise Standards Section of the Newport Beach Municipal Code. Rooftop screening and enclosures shall be subject to the applicable height limit. 20. Screening of the was Residential Units from Tennis and Piickleball Courts Adequate buffering between the Villa s residential units and tennis courts and pickleball courts shall be provided and subject to the Site Development Review process. The exterior perimeter of the tennis courts facing Granville Condominiums, Granville Drive, and the Tennis and Pickleball Clubhouse parking lot shall be screened by a minimum ten -foot -high chain link fence covered by a wind screen. Wind screen shall be maintained in good condition at all time. Additionally, adequate sound barriers shall be installed around the tennis and pickleball courts to the satisfaction of the Community Development Director. 21. Screening of the Villas' Pool/Spa Equipment All pool and/or spa equipment shall be enclosed by a minimum five-foot high block wall plastered or otherwise textured to match the building. 22. Special Events Temporary special community events, such as such as PGA Senior Classic golf tournaments, Team Tennis, Davis Cup Matches, pickleball tournaments and other similar events, are permitted in the PCD, and are subject to the Special Events Chapter of the Newport Beach Municipal Code. Temporary exterior storage associated with approved special events may be permitted provided it is appropriately screened and regulated with an approved Special Event Permit. 21-63 23. Temporary Structures and Uses Temporary structures and uses, including modular buildings for construction -related activities are permitted. 24. Trash Container Storage for Residential Dwellings Trash container storage shall be out of view from public places, and may not be located in the required parking areas. If trash container storage areas cannot be located out of public view, they shall be screened from public view. Screening shall consist of fences, walls, and landscaping to a height at least 6 inches above the tops of the containers. 25. Trash Enclosures for Non -Residential Uses All trash enclosures for non-residential uses shall be provided and in accordance with the Solid Waste and Recyclable Materials Storage of the Newport Beach Municipal Code. 26. Tennis and Picklebail Club Site Phasing Plan The phasing plan for the tennis club site which consists of the Jennis and Pickleball sClub, v4as residential units and bungalow hotel rooms shall be subject to a site development review process. 27. Water Service Water service to the PCD will be provided by the City of Newport Beach and will be subject to applicable regulations, permits and fees as prescribed by the City. 9 21-64 3.0 LAND USE AND DEVELOPMENT REGULATIONS 3.1 Golf Club Refer to Exhibit B - Conceptual Master Site Plan for the general location and placement of the golf course and clubhouse. A. Golf Course An 18-hale championship golf course and related facilities (i.e. putting green, driving range, snack bar, starter shack, restroom facilities, etc.). B. Golf Clubhouse and Ancillary Uses 1. Building Area The maximum allowable gross floor area for a golf clubhouse building shall be 56,000 square feet, exclusive of any enclosed golf cart storage areas ramp and washing area. The greens keeper/maintenance buildings, snack bar, separate golf course restroom facilities, starter shack, and similar ancillary buildings are exempt from this development limit. 2. Building Height The maximum allowable building height for the Golf Clubhouse shall be 50 feet and shall be measured in accordance with the Height and Grade definition of Section 2.0 General Conditions and Regulation of the PCD. 3. Permitted Ancillary Uses The following ancillary uses are allowed: • Golf shop • Administrative Offices • Dining, and event areas • Kitchen & Bar areas • Banquet Rooms • Men and Women's Card Rooms • Health and fitness facility • Restroom and Locker facilities • Golf Club storage areas • Employee lounge/lunch areas • Meeting rooms • Golf Cart Parking Storage and Washing Area 10 21-65 • Separate Snack Bar + Separate Starter Shack • Separate Golf Course Restrooms • Hand Carwash Area • Greenskeeper Maintenance Facility • Temporary Construction Facilities • Guard House • Others (subject to an approval of the Community Development Director) 4. Parking Parking for the Golf Course and Golf Clubhouse shall be in accordance with following parking ratios (source: from Table 2 of the Circulation and Parking Evaluation by Kimley-Horn and Associates, Inc., September 2009 for Newport Beach Country Club — Clubhouse improvement Project): Golf Course: 8 spaces per hole Golf Clubhouse: Dining, assembly & meeting rooms: 1 per 3 seats or 1 per 35 square feet Administrative Office: 4 per 1,000 square feet Pro Shop: 4 per 1,000 square feet Maintenance Facility: 2 per 1,000 square feet Health and Fitness Facility: 4 per 1,000 square feet The design of the parking lot and orientation of vehicular aisles and parking spaces shall be subject to the review and approval of the City Traffic Engineer and Community Development Director. 5. Fencing Golf Course perimeter fencing shall be wrought -iron with a maximum permitted height of six (6) feet. 3.2 Tennis and Pickleball Club Refer to Exhibit B - Conceptual Master Site Plan for the general location and placement of the tennis and pickleball courts and clubhouse. A. The Tennis and Pickleball Courts 1. Number of courts 11 21-66 The maximum allowable tennis courts shall be seven four lighted tennis courts and 14 pickleball courts (12 lighted courts and one lighted stadium with two (2) pickleball courts). lighted siadiU M GenteF GO A) B. Tennis and Pickleball Clubhouse and Ancillary Uses 1. Building Area The maximum allowable gross floor area for the Tennis and Pickleball Clubhouse shall be 3,725 square feet. 2. Building Height The maximum allowable building height for the Tennis and Pickleball Clubhouse shall be 30 feet and shall be measured in accordance with the Height and Grade definition of Section 2.0 General Conditions and Regulations of the PCD. 3. Permitted Ancillary Uses The following ancillary uses are allowed: • Tennis and Pickleball Shop • Administrative Offices • Concessions • Restroom and Locker facilities • Storage areas • Spectator seating • Others (subject to an approval of the Community Development Director) 4. Parking Parking for the Tennis and Pickleball Clubhouse and Courts shall be a minimum of 2-9 72 parking spaces. 3.3. T�a',�-l;;'4as Residential Refer to Exhibit B - Conceptual Master Site Plan for the general location and placement of the v4as dwelling units. 12 21-67 A. Detached Residential (The V0 1. Number of Units The maximum allowable number of single-family residential units shall be five-(5) two (2). 2. Development Standards The following development standards shall apply to the detached residential units: Thy Residential Development Standards Table Wta Single -Family V41a Single -Family V414a Dwelling Dwelling A Dwelling B Unit Designation TTM Lot #1 TTM Lot #2 Lot Size 5,000 square feet minimum Lot Coverage 70% 65% (Maximum) 39 feet, measured in accordance with the Height Building Height and Grade definition of Section 2.0 General Conditions and Regulations Building Side 3 feet minimum Yard Setbacks Building Front and Rear Yard 5 feet minimum Setbacks Enclosed Parking Space for Each 2 2 Unit Open Guest One space - could be located on the private Parking Space for driveway — No overhang to the private streeticul- Each Unit de -sac is allowed 13 21-68 B. Attached Residential 1. Number of Units The maximum allowable number of attached residential units shall be three (3). 2. Development Standards The following development standards shall apply to the detached residential units: Setbacks: 5 feet minimum from any propertyline Height: 46 feet (to be located atop of the 2-story hotel buildings) Parking: 3 enclosed spaces and one guest space per dwelling unit 3.4. The Sung,lews Hotel Refer to Exhibit B - Conceptual Master Site Plan for the general location and placement of the bungalows hotel rooms, concierge and guest center, and spa facility. A. Number of 444 Rooms The maximum allowable number of the BURgalews rooms shall be 2-7 41, to be built in a clustered setting of single and two-story buildings. B. Permitted Ancillary Uses The following ancillary uses are allowed: • Administrative Offices • Concierge office and guest meeting facility • Performance Therapy Center • Spa and Fitness Center • Swimming pool and Jacuzzi serving drinks, sRaG s and light bFeakfast and IUnch 48M6 • Yoga Pavilion C. Building Area The maximum allowable gross floor area for the bungalGws hotel rooms shall be 0 47,484 square feet with a 2,200 square foot concierge & guest center, 4,686 square feet of ancillary hotel uses, and a 7,500 square -foot spa facility. 14 21-69 D. Building Height The maximum allowable building height for the bURgalew hotel rooms shall be 31 feet, measured in accordance with the Height and Grade definition of Section 2.0 General Conditions and Regulations of the PCD. E. Building Setbacks The building setback reqUiF8FR Rt shall be a minimum of 5 feet from any property line. F. Parking Parking for the bYRgalews hotel rooms shall be a minimum of 34 41 parking spaces located in proximity to the use. 3.5 Signs A. Sign Allowance 1. One (1) single or double-faced, ground -mounted entrance identification sign shall be allowed at Newport Beach Tennis Club's main entrance (Country Club Drive and Irvine Terrace). Total maximum signage area shall not exceed seventy-five (75) square feet and shall not exceed five (5) feet in height. 2. One (1) single or double-faced, ground -mounted entrance identification sign shall be allowed at or near the vicinity of the Newport Beach Country Club's secondary entrance (Granville). Total maximum signage area shall not exceed seventy-five (75) square feet and shall not exceed five (5) feet in height. 3. Building identification signs shall be allowed; one for each street frontage. If freestanding, this sign type shall not exceed a maximum height of five (5) feet in height. The maximum signage area shall not exceed seventy (70) square feet. 4. Vehicular and pedestrian directional signs shall be allowed. This sign type may occur as a single -faced or double-faced sign. The sign shall be sized to allow for proper readability given the number of lines of copy, speed of traffic, setback off the road and viewing distance. This sign type shall not exceed a maximum of six (6) feet in height. 5. One (1) single or double faced, ground -mounted identification sign shall be allowed at the entrance road to the BURgalews hotel. Total 15 21-70 maximum signage area shall not exceed seventy-five (75) square feet and shall not exceed five (5) feet in height and fifteen (15) feet in length. B. Sign Standards The design and materials of all permanent signs in the Newport Beach Country Club Planned Community District shall be in accordance with Sign Section 3.5, unless otherwise approved by the Community Development Director. 2. All permanent signs shall be subject to a sign permit issued by the Community Development Department. 3. All signs shall be subject to the review of the City Traffic Engineer to ensure adequate sight distance in accordance with the provisions of the Newport Beach Municipal Code. 4. Sign illumination is permitted for all sign types. No sign shall be constructed or installed to rotate, gyrate, blink or move, or create the illusion of motion, in any fashion. 5. All permanent signs together with the entirety of their supports, braces, guys, anchors, attachments and decor shall be properly maintained, legible, functional and safe with regards to appearance, structural integrity and electrical service. 6. Temporary signs that are visible from any public right-of-way shall be allowed up to a maximum of sixty (60) days and subject to a temporary sign permit issued by the Community Development Department. 7. If the applicant wishes to deviate from the sign standards identified herein, a comprehensive sign program may be prepared or a modification permit application may be submitted for review and consideration by the Zoning Administrator in accordance with the applicable provisions of the Newport Beach Municipal Code. 16 21-71 4.0 SITE DEVELOPMENT REVIEW 4.1 Purpose The purpose of the Site Development Review process is to ensure new development proposals within the Newport Beach Country Club Planned Community Development are consistent with the goals and policies of the General Plan, provisions of this Planned Community Development Plan, the Development Agreement and the findings set forth below in sub -section 4.3. 4.2 Application An approval of Site Development Review application by the Planning Commission shall be required for the construction of any new structure prior to the issuance of a grading or building permit . i of an approval in E;ence Signs, tenant improvements to any existing buildings, kiosks, and temporary structures are exempt from the site development review process and subject to the applicable City's permits. The decision of Planning Commission is the final, unless appealed in accordance with the Newport Beach Municipal Code. 4.3. Findings In addition to the general purposes set forth in subsection 4.1 and in order to carry out the purposes of this chapter as established by said section, the Site Development Review procedures established by this Section shall be applied according to and in compliance with the following findings: A. The development shall be in compliance with all other provisions of the Planned Community District Plan; B. The development shall be compatible with the character of the neighboring uses and surrounding sites and shall not be detrimental to the orderly and harmonious development of the surroundings and of the City; C. The development shall be sited and designed to maximize the aesthetic quality of the project as viewed from surrounding roadways and properties, with special consideration given to the mass and bulk of buildings and the streetscape on Coast Highway; and 17 21-72 D. Site plan and layout of buildings, parking areas, pedestrian and vehicular access ways, landscaping and other site features shall give proper consideration to functional aspects of site development. 4.4. Contents The Site Development Review application shall include all of the information and materials specified by the Community Development Director and any additional information review by the Planning Commission in order to conduct a thorough review of the project in question. The following plans/exhibits may include, but not limited to the following: An aerial map showing the subject property, adjacent properties and identifying their uses. 2. Comprehensive elevations and floor plans for new structures with coordinated and complimentary architecture, design, materials and colors. 3. A parking and circulation plan showing golf cart and pedestrian paths in addition to streets and fire lanes. 4. A comprehensive, cohesive and coordinated preliminary landscape plan. 5. A comprehensive, cohesive and coordinated lighting plan showing type, location and color of all exterior lighting fixtures. 6. Comprehensive text and graphics describing the design philosophy for the architecture, landscape architecture, material and textures, color palette, lighting, and signage. 7. Text describing drainage and water quality mitigation measures. 8. A statement that the proposed new structure is consistent with the goals, policies, and actions of the General Plan and Planned Community Development Plan. 4.5 Public Hearing —Required Notice A public hearing shall be held on all site development review applications. Notice of such hearing shall be mailed not less than ten (10) days before the hearing date, postage prepaid, using addresses from the last equalized assessment roll or, alternatively, from such other records as contain more recent addresses, to owners of property within a radius of three hundred (300) feet of the exterior boundaries of the subject property. It shall be the responsibility of the applicant to obtain and provide to the City the names and addresses of owners as required by this Section. In addition to the mailed notice, such hearing shall be posted in f -,] 21-73 not less than two (2) conspicuous places on or close to the property at least ten (10) days prior to the hearing. 4.6 Expiration and Revocation Site Development Review Approvals Expiration. Any site development review approved in accordance with the terms of this planned community development plan shall expire within twenty-four (24) months from the effective date of final approval as specified in the Time Limits and Extensions Section of the Newport Beach Municipal Code, unless at the time of approval the Planning Commission has specified a different period of time or an extension is otherwise granted. 2. Violation of Terms. Any site development review approved in accordance with the terms of this planned community development plan may be revoked if any of the conditions or terms of such site development review are violated or if any law or ordinance is violated in connection therewith. 3. Public Hearing. The Planning Commission shall hold a public hearing on any proposed revocation after giving written notice to the permittee at least ten (10) days prior to the hearing, and shall submit its recommendations to the City Council. The City Council shall act thereon within sixty (60) days after receipt of the recommendation of the Planning Commission. 4.7. Fees The applicant shall pay a fee as established by Resolution of the Newport Beach City Council to the City with each application for Site Development Review under this planned community development plan. 4.8 Minor Changes by the Director The following minor changes to an approved site plan may be approved by the Director in compliance with Section 20.54.070 (Changes to an approved project) of the Newport Beach Municipal Code: a) Minor relocation of any proposed structure. b) Reduction in the square footage of any structure and a commensurate reduction in required parking, if applicable. c) Reconfiguration of the golf clubhouse parking lot, including drive aisles and/or parking spaces, subject to review and approval of the City Traffic Engineer. d) Reconfiguration of parking lot landscaping. e) Modification of the approved architectural style. f) Any other minor change to the site plan provided it does not 19 21-74 increase any structure area, height, number of units, number of hotel rooms, and/or change of use. 2. Any proposed changes that are not deemed minor shall be subject to review and approval by the Planning Commission. 20 21-75 Exhibit A 21 21-76 Exhibit B N. r . N` P , ■ p / �41 ., r 'Q r t Of O • OJF� G • yip • �" • � Golf Course , �� • % • Golf Clubhouse Tennis & Picklehan Club- , �j & Parking Lot a �Cq • Hotel, & Residential j O A r H 4 4yy � dye � Tea - .- ,�•�•�� m q� ��' 0 899ft 22 21-77 Attachment E Ordinance No. 2023-19 - DA 21-78 ORDINANCE NO. 2023-19 AN ORDINANCE OF THE CITY COUNCIL. OF THE CITY OF NEWPORT BEACH, CALIFORNIA, APPROVING A DEVELOPMENT AGREEMENT FOR THE TENNIS CLUB AND PICKLEBALL CLUB AT NEWPORT BEACH LOCATED AT 1602 EAST COAST HIGHWAY (PA2021- 260) WHEREAS, Section 200 of the City of Newport Beach ("City") Charter vests the City Council with the authority to make and enforce all laws, rules, and regulations with respect to municipal affairs subject only to the restrictions and limitations contained in the Charter and the State Constitution, and the power to exercise, or act pursuant to any and all rights, powers and privileges, or procedures granted or prescribed by any law of the State of California; WHEREAS, on March 27, 2012, the City Council approved an application by Golf Realty Fund, Managing Owner ("Applicant") for the reconstruction of the 3,725-square-foot tennis clubhouse, reduction of tennis courts from 24 to seven courts, construction of a 27- room boutique hotel with 9,700 square feet of ancillary uses and five single -unit residential units, and a development agreement for the property ("2012 Entitlements") located at 1602 East Coast Highway, and legally described as Parcels A, B, C, and D of Parcel Map No. 2016-151 (commonly referred as the "Tennis Club Site" or "Property"); WHEREAS, Development Agreement No. DA2008-001 ("2012 Agreement") adopted pursuant to Ordinance No. 2012-3 was executed and recorded, as document number 2014000036369; WHEREAS, on November 20, 2018, the Zoning Administrator approved Coastal Development Permit No. CD2017-039, authorizing the redevelopment of the Property consistent with the 2012 Entitlements (2012 Entitlements and Coastal Development Permit No. CD2017-039 are collectively referred to as the "Approved Project"); WHEREAS, on November 2, 2021, the Applicant submitted an application to amend the Approved Project to include one additional tennis court for a total of eight courts, 14 additional hotel rooms for a total of 41 rooms, additional ancillary hotel uses, and three attached condominium units and two detached single -unit residences in -lieu of five detached single -unit residences ("2021 Project Application"); WHEREAS, on June 28, 2022, the City Council approved a one year extension of Development Agreement No. DA2008-001 which expired on September 23, 2023; 21-79 Ordinance No. 2023- Page 2 of 8 WHEREAS, on September 8, 2022, the Planning Commission held a public hearing and recommended approval of the 2021 Project Application to the City Council; WHEREAS, on September 27, 2022, the City Council held a public on the 2021 Project Application but remanded it to the Planning Commission for further consideration of the pickleball use; WHEREAS, on October 11, 2022, the City Council adopted a motion to reconsider the 2021 Project Application; WHEREAS, on October 25, 2022, the City Council reconsidered the 2021 Project Application but continued the item to a future meeting after the Planning Commission considered an amendment to the project that includes pickleball courts; WHEREAS, the Property currently has 31 pickleball courts and 16 tennis courts, which will remain as an interim use until the Project (defined below) is fully implemented; WHEREAS, on December 6, 2022, the Applicant submitted a revised application to the Approved Project to decrease the number of future tennis courts from seven to four tennis courts, add 14 pickleball courts, increase the number of future hotel rooms from 27 to 41 rooms, increase the gross floor area of ancillary hotel uses by 4,686 square feet, for a total of 14,386 square feet, provide three attached condominium units and two single -unit residences in -lieu of five single -unit residences, and approve a development agreement for a term of 15 years ("Project"); WHEREAS, the following land use approvals are requested or required for the Project: • General Plan Amendment ("GPA") -- An amendment to Anomaly No. 46 of Table LU2 of the 2006 Newport Beach General Plan Land Use Element to document the conversion of 17 tennis courts to 27 hotel rooms and assignment of five residential units authorized by City Council Resolution No. 2012-10, the addition of 14 hotel rooms for a total of 41 rooms, the reduction from seven tennis courts to four tennis courts, and the addition of 14 pickleball courts; 21-80 Ordinance No. 2023- Page 3 of 8 + Local Coastal Program Implementation Plan Amendment (" LCPX) — An amendment to Newport Beach Country Club (PC-47) Planned Community Coastal Zoning District Development Standards set forth in Section 21.26.055(S)(2) of the Newport Beach Municipal Code ("NBMC") to modify the permitted uses and development standards allowed on the Property; + Planned Community Development Plan Amendment ("PCDP Amendment") — An amendment to Planned Community Development Plan No. 47 (Newport Beach Country Club Planned Community) to amend land use regulations and development standards on the Property; + Development Agreement ("DA") -- A new development agreement between the Applicant and the City, pursuant to Sections 15.45.020(A)(2)(c) (Buildings and Construction, Development Agreements Required, Development Agreement Required) and 15.45.070 (Buildings and Constructions, Development Agreements, Amendment/Cancellation) of the NBMC, which would provide vested right to develop the Project for a term of 15 years and provides negotiated public benefits to the City; and + Addendum to previously adopted Mitigated Negative Declaration No. ND-2010- 008 (SCH2010091052) ("Addendum") — Pursuant to the California Environmental Quality Act ("CEQA"), the Addendum addresses reasonably foreseeable environmental impacts resulting from the Project; WHEREAS, the Property is designated Mixed -Use Horizontal 31Parks and Recreation (MU-H31PR) by the City of Newport Beach General Plan and is located within the Newport Beach Country Club Planned Community (PC-47) Zoning District; WHEREAS, the Property is designated Mixed -Use Horizontal/Parks and Recreation (MU-HIPR) by the Coastal Land Use Plan and is located within the Newport Beach Country Club Planned Community (PC-47) Coastal Zoning District; 21-81 Ordinance No. 2023- Page 4 of 8 WHEREAS, the Planning Commission held a public hearing on March 23, 2023, in the City Council Chambers, located at 100 Civic Center Drive, Newport Beach, California, at which time the Planning Commission considered the Project. A notice of time, place and purpose of the hearing was given in accordance with California Government Code Section 54950 et seq. ("Ralph M. Brown Act"), and Chapters 15.45 (Development Agreements), 20.56 (Planning Community District Procedures), 20.62 (Public Hearings) and 21.62 (Public Hearings) of the NBMC. Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this hearing; WHEREAS, at the hearing, the Planning Commission adopted Resolution No. PC2023-014 (5 ayes, 1 absent, 1 recusal) recommending approval of the Project to the City Council; and WHEREAS, the City Council held a public hearing on November 14, 2023, in the City Council Chambers, located at 100 Civic Center Drive, Newport Beach, California. A notice of time, place and purpose of the hearing was given in accordance with the Ralph M. Brown Act, and Chapters 15.45 (Development Agreements), 20.56 (Planning Community District Procedures), 20.62 (Public Hearings) and 21.62 (Public Hearings) of the NBMC. Evidence, both written and oral, was presented to, and considered by, the City Council at this hearing. NOW THEREFORE, the City Council of the City of Newport Beach ordains as follows: Section 1: The City Council has considered the recommendation of the Planning Commission and determined that modifications to the Project made by the City Council, if any, are not major changes that require referral back to the Planning Commission for consideration and recommendation. 21-82 Ordinance No. 2023- Page 5 of 8 Section 2: The City Council finds the DA is consistent with provisions of California Government Code Sections 65864 to 65869.5 and Chapter 15.45 (Development Agreements) of the NBMC that authorize binding agreements that: (i) encourage investment in, and commitment to, comprehensive planning and public facilities financing; (ii) strengthen the public planning process and encourage private implementation of the local general plan; (iii) provide certainty in the approval of projects to avoid waste of time and resources; and (iv) reduce the economic costs of development by providing assurance to the property owners that they may proceed with projects consistent with existing policies, rules, and regulations. The City Council finds the DA is consistent with Land Use Element of the General Plan which designates the Tennis and Pickleball Club site as Mixed Use Horizontal 3/Park and Recreation (MU- H31PR). The MU-H31PR designation on the Tennis and Pickleball Club site provides for the horizontal intermixing of regional commercial office, hotel, single -unit and multi -unit residential and ancillary commercial uses. The PR designation allows active public or private recreational uses including parks (both active and passive), golf courses, marina support facilities, aquatic facilities, tennis clubs and courts, private recreation, and similar facilities. The Project necessitates an amendment to the General Plan due to the increased number of hotel rooms and tennis courts. However, there are no proposed changes to the land uses permitted per the General Plan land use designation and the Project is consistent with all applicable General Plan Land Use policies. Additionally, the City Council finds the DA is entered into pursuant to, and constitutes a present exercise of, the City's police power and is in the best interest of the health, safety, and general welfare of the City, residents, and the public. The City Council finds that judicial challenges to the City's CEQA determinations and approvals of land use projects are costly and time consuming. In addition, project opponents often seek an award of attorneys' fees in such challenges. As project applicants are the primary beneficiaries of such approvals, it is appropriate that such applicants should bear the expense of defending against any such judicial challenge, and bear the responsibility for any costs, attorneys' fees, and damages which may be awarded to a successful challenger. Section 3: The Development Agreement which is attached hereto as Exhibit and incorporated herein by reference between the City of Newport Beach and the Applicant is hereby approved. 21-83 Ordinance No. 2023- Page 6 of 8 Section 4: The City Council finds that judicial challenges to the City's CEQA determinations and approvals of land use projects are costly and time consuming. In addition, project opponents often seek an award of attorneys' fees in such challenges. As project applicants are the primary beneficiaries of such approvals, it is appropriate that such applicants should bear the expense of defending against any such judicial challenge, and bear the responsibility for any costs, attorneys' fees, and damages which may be awarded to a successful challenger. In addition to the obligation to The Applicant shall indemnify, defend, and hold the City of Newport Beach harmless against any judicial challenges to the City's approval of the Development Agreement provided herein that take place prior to its Effective Date. Section 5: An Addendum to Mitigated Negative Declaration No. ND2010-008 (MND) was prepared for the Project in compliance with the California Environmental Quality Act ("CEQA") set forth in California Public Resources Code Section 2100 of seq.; CEQA's implementing regulations set forth in CCR Title 14, Division 6, Chapter 3 ("CEQA Guidelines") and City Council Policy K-3 (implementation Procedures for the California Environmental Quality Act) to ensure that the Project will not result in new or increased environmental impacts. On the basis of the MND and entire environmental review record, the reduction of three tennis courts and addition of 14 pickleball courts, 14 hotel rooms, and 4,686 square feet of ancillary hotel uses, and conversion of three single -unit residences to condominium units will not result in any new significant impacts that were not previously analyzed in the MND. The Addendum confirms and provides substantial evidence that the potential impacts associated with this Project would either be the same or less than those described in the MND, or as mitigated by applicable mitigation measures in the MND. In addition, there are no substantial changes to the circumstances under which the Project would be undertaken that would result in new or more severe environmental impacts than previously addressed in either the MND, nor has any new information regarding the potential for new or more severe significant environmental impacts been identified. Therefore, in accordance with Section 15164 of the CEQA Guidelines, the City Council adopted Resolution No. 2023- thereby adopting an addendum to the previously adopted MND. Resolution 2023- , including all findings contained therein, is hereby incorporated by reference. Section 6: The recitals provided in this ordinance are true and correct and are incorporated into the substantive portion of this ordinance. 21-84 Ordinance No. 2023- Page 7 of 8 Section 7: If any section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this ordinance. The City Council hereby declares that it would have passed this ordinance and each section, subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional. 21-85 Ordinance No. 2023- Page 8 of 8 Section 8: The Mayor shall sign and the City Clerk shall attest to the passage of this ordinance. The City Clerk shall cause the ordinance, or a summary thereof, to be published pursuant to City Charter Section 414. This ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach held on the 14th day of November, 2023, and adopted on the 28th day of November, 2023, by the following vote, to -wit: AYES- NAYS - ABSENT: NOAH BLOM, MAYOR ATTEST: LEILANI 1. BROWN, CITY CLERK APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE AARON'03 HARP, ATTORNEY Attachment(s): Exhibit A — Development Agreement 21-86 Exhibit "A" RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92663-3884 Attn: Citv Clerk (Space Above This Line Is for Recorder's Use Only) This Agreement is recorded at the request and for the benefit of the City of Newport Beach and is exempt from the payment of a recording fee pursuant to Government Code §§ 6103 and 27383. DEVELOPMENT AGREEMENT between CITY OF NEWPORT BEACH and GOLF REALTY FUND CONCERNING PROPERTIES REFERENCED AS "TENNIS AND PICKLEBALL CLUB" WITHIN THE NEWPORT BEACH COUNTRY CLUB PLANNED COMMUNITY DISTRICT 21-87 DEVELOPMENT AGREEMENT (Pursuant to California Government Code Sections 65864-65869.5) This DEVELOPMENT AGREEMENT (the "Agrcement") is dated for reference purposes as of the _ day of , 2023 (the "Agreement Date"), and is being entered into by and between the City of Newport Beach ("City"), and Golf Realty Fund LP, a California limited partnership "Property Owner"). City and Property Owner are sometimes collectively referred to in this Agreement as the "Parties" and individually as a "Party." RPPITAT.0 A. Property Owner is the managing owner of and owns a fee interest in title to that certain real property located in the City of Newport Beach, County of Orange, State of California commonly referred to as 1602 East Coast Highway and more particularly described in the legal description attached as Exhibit "A" and depicted on the site map attached hereto as Exhibit "B" ( "Property"). The Property consists of approximately seven (7) acres and is a part of the Newport Beach Country Club Planned Community District shown on the City's Zoning Map. The Property comprises the area shown on Exhibit B as The Residential Sub -Area, The Tennis and Pickleball Club Sub -Area, and The Hotel Sub -Area. B. In order to encourage investment in, and commitment to, comprehensive planning and public facilities financing, strengthen the public planning process and encourage private implementation of the local general plan, provide certainty in the approval of projects in order to avoid waste of time and resources, and reduce the economic costs of development by providing assurance to property owners that they may proceed with projects consistent with existing land use policies, rules, and regulations, the California Legislature adopted California Government Code sections 65864-65869.5 (the "Development Agreement Statute") authorizing cities and counties to enter into development agreements with persons or entities having a legal or equitable interest in real property located within their jurisdiction. C. On March 13, 2007, the City Council adopted Ordinance No. 2007-6, entitled "Ordinance Amending Chapter 15.45 of City of Newport Beach Municipal Code Regarding Development Agreements" (the "Development Agreement Ordinance"). This Agreement is consistent with the Development Agreement Ordinance. D. The Parties wish to enter into Agreement to include four (4) tennis courts, fourteen (14) pickleball courts, including a stadium (approximately one hundred four feet (104') by one hundred forty-eight feet (148') with two pickleball courts, forty-one (41) hotel rooms, the gross floor area of ancillary hotel uses is fourteen thousand three hundred and eighty-six (14,386) square feet, and construct three (3) attached condominium units and two (2) single-family residences in lieu of five (5) single-family residences. E. As detailed in Section 3 of this Agreement, Property Owner has agreed to provide the following significant public benefits as consideration for this Agreement: Visitor -Serving Uses within the Coastal Zone, and other economic contributions including the payment of a Public Benefit Fee. -1- 21-88 F. This Agreement is consistent with the City of Newport Beach General Plan ("General Plan"), including without limitation the General Plan's designation of the Property as "MU-H31PR" (Mixed Use Horizontal /(Parks and Recreation) (Anomaly 46), the Coastal Land Use Plan's designation as "MU-H/PR (Mixed Use Horizontal / Parks & Recreation", the Newport Beach Country Club Planned Community District that was adopted in 1997 by Ordinance No. 97- 10 in order to establish appropriate zoning to regulate land use and development of the Property consistent with the General Plan, and the Newport Beach Country Club Planned Community Development Plan No PC2005-002 approved for the Property on March 27, 2012 by Ordinance No. 2012-2. G. In recognition of the significant public benefits that this Agreement provides, the City Council finds that this Agreement: (i) is consistent with the City of Newport Beach General Plan as of the date of this Agreement; (ii) is in the best interests of the health, safety, and general welfare of City, its residents, and the public; (iii) is entered into pursuant to, and constitutes a present exercise of, City's police power; (iv) is consistent and has been approved consistent with the Final Environmental Impact Report for the City of Newport Beach General Plan 2006 Update (State Clearinghouse No. 2006011119), the Mitigated Negative Declaration No. ND2010-008 and for the Newport Beach Country Club Planned Community District (PA2021-260) approved by the City Council on and the Addendum to Mitigated Negative Declaration No. ND2010-008, both of which analyze the environmental effects of the Project on the Property; and (v) is consistent and has been approved consistent with provisions of California Government Code section 65867 and City of Newport Beach Municipal Code chapter 15.45. H. On March 23, 2023, City's Planning Commission held a public hearing on this Agreement, and made findings and determinations with respect to this Agreement, and recommended to the City Council that the City Council approve this Agreement. I. On November 14, 2023, the City Council held a public hearing on this Agreement and considered the Planning Commission's recommendations and the testimony and information submitted by City staff, Property Owner, and members of the public. On November 28, 2023, consistent with applicable provisions of the Development Agreement Statute and Development Agreement Ordinance, the City Council adopted its Ordinance No. 2023- (the "Adopting Ordinance"), finding this Agreement to be consistent with the City of Newport Beach General Plan and approving this Agreement. AGREEMENT NOW, THEREFORE, City and Property Owner agree as follows: 1. Definitions. In addition to any terms defined elsewhere in this Agreement, the following terms when used in this Agreement shall have the meanings set forth below: "Action" shall have the meaning ascribed in Section 8.10 of this Agreement. "Adopting Ordinance" shall mean City Council Ordinance No. 2023-_ approving and adopting this Agreement. 2 21-89 "Ageement" shall mean this Development Agreement, as the same may be amended from time to time. "Agreement Date" shall mean November 28, 2023 which date is the date the City Council adopted the Adopting Ordinance. "CEQA" shall mean the California Environmental Quality Act (California Public Resources Code Sections 21000-21177) and the implementing regulations promulgated thereunder by the Secretary for Resources (California Code of Regulations, Title 14, Section 15000 et seq.) ("CEQA Guidelines"), as the same may be amended from time to time. "City" shall mean the City of Newport Beach, a California charter city. "City Council" shall mean the governing body of City. "City's Affiliated Parties" shall have the meaning ascribed in Section 10.1 of this Agreement. "Claim" shall have the meaning ascribed in Section 10.1 of this Agreement. "CPI Index" shall mean the Consumer Price Index published from time to time by the United States Department of Labor, Bureau of Labor Statistics for all urban consumers (all items) for the Los Angeles -Long Beach -Anaheim, California Area, All Urban Consumers, All Items, Base Period (1982-84=100), or, if such index is discontinued, such other similar index as may be publicly available that is selected by City in its reasonable discretion. "Cure Period" shall have the meaning ascribed in Section 8.1 of this Agreement. "Default" shall have the meaning ascribed to that term in Section 8.1 of this Agreement. "Develop" or "Development" shall mean to improve or the improvement of the Property for the purpose of completing the structures, improvements, and facilities comprising the Project, including but not limited to: grading; the construction of infrastructure and public facilities related to the Project, whether located within or outside the Property; the construction of all of the private improvements and facilities comprising the Project; the preservation or restoration, as required of natural and man-made or altered open space areas; and the installation of landscaping. The terms "Develop" and "Development," as used herein, do not include the maintenance, repair, reconstruction, replacement, or redevelopment of any structure, improvement, or facility after the initial construction and completion thereof. "Development Agreement Ordinance" shall mean Chapter 15.45 of the City of Newport Beach Municipal Code. "Development Agrcement Statute" shall mean California Govermnent Code Sections 65864-65869.5, inclusive. "Development Exactions" shall mean any requirement of City in connection with or pursuant to any ordinance, resolution, rule, or official policy for the dedication of land, the construction or installation of any public improvement or facility, or the payment of any fee or 21-90 charge in order to lessen, offset, mitigate, or compensate for the impacts of Development of the Project on the environment or other public interests. "Development Plan" shall mean the amendment to Newport Beach Country Club Planned Community Development Plan (PC-47) adopted pursuant to Ordinance No. 2012-2 and as amended by Ordinance No. 2023- ; General Plan Amendment adopted pursuant to Resolution No. 2023-; amendment to Coastal Development Permit No. CD2017-039 adopted pursuant to Resolution No. 2023-; and Local Coastal Program Implementation Plan Amendment (also referred to herein as Title 21 of the Newport Beach Municipal Code) adopted pursuant to Resolution No. 2023- but subject to California Coastal Commission final review and approval. "Development Regulations" shall mean the following regulations as they are in effect as of the Agreement Date and to the extent they govern or regulate the development of the Property, but excluding any amendment or modification to the Development Regulations adopted, approved, or imposed after the Agreement Date that impairs or restricts Property Owner's rights set forth in this agreement, unless such amendment or modification is expressly authorized by this Agreement or is agreed to by Property Owner in writing: the General Plan, the Coastal Land Use Plan, the Development Plan, the Local Coastal Program Implementation Plan (Title 21); and, to the extent not expressly superseded by the Development Plan or this Agreement, all other land use and subdivision regulations governing the permitted uses, density and intensity of use, design, improvement, and construction standards and specifications, procedures for obtaining required City permits and approvals for development, and similar matters that may apply to development of the Project on the Property during the Term of this Agreement that are set forth in Title 15 of the Municipal Code (buildings and construction), Title 19 of the Municipal Code (subdivisions). Title 20 of the Municipal Code (planning and zoning) and Title 21 of the Municipal Code (local coastal program implementation plan), but specifically excluding all other sections of the Municipal Code, including without limitation Title 5 of the Municipal Code (business licenses and regulations), Notwithstanding the foregoing, the tern "Development Regulations," as used herein, does not include any City ordinance, resolution, code, rule, regulation or official policy governing any of the following: (i) the conduct of businesses, professions, and occupations; (ii) taxes and assessments; (iii) the control and abatement of nuisances; (iv) the granting of encroachment permits and the conveyance of rights and interests which provide for the use of or entry upon public property; or (v) the exercise of the power of eminent domain. "Effective Date" shall mean the latest of the following dates, as applicable: (i) the date that is thirty (30) days after the Agreement Date; (ii) if a referendum concerning the Adopting Ordinance, the Development Plan, or any of the Development Regulations approved on or before the Agreement Date is timely qualified for the ballot and a referendum election is held concerning the Adopting Ordinance or any of such Development Regulations, the date on which the referendum is certified resulting in upholding and approving the Adopting Ordinance and the Development Regulations; (iii) if a lawsuit is timely filed challenging the validity of the Adopting Ordinance, this Agreement, and/or any of the Development Regulations approved on or before the Agreement Date, the date on which said challenge is finally resolved in favor of the validity or legality of the Adopting Ordinance, this Agreement, the Development Plan and/or the applicable Development Regulations, which such finality is achieved by a final non -appealable judgment, voluntary or involuntary dismissal (and the passage of any time required to appeal an involuntary dismissal), or binding written settlement agreement; (iv) the date of final approval of Amendment to the Local Coastal Program Implementation Plan for the Project; or (v) if a lawsuit is timely filed El 21-91 challenging the validity or legality of the approval of Amendment to the Local Coastal Program Implementation Plan for the Project, the date on which said challenge is finally resolved in favor of the validity or legality of Amendment to the Local Coastal Program Implementation Plan for the Project, whether such finality is achieved by a final non -appealable judgment, voluntary or involuntary dismissal (and the passage of any time required to appeal an involuntary dismissal), or binding written settlement agreement. Promptly after the Effective Date occurs, the Parties agree to cooperate in causing an appropriate instrument to be executed and recorded against the Property memorializing the Effective Date. "Environmental Laws" means all federal, state, regional, county, municipal, and local laws, statutes, ordinances, rules, and regulations which are in effect as of the Agreement Date, and all federal, state, regional, county, municipal, and local laws, statutes, rules, ordinances, rules, and regulations which may hereafter be enacted and which apply to the Property or any part thereof, pertaining to the use, generation, storage, disposal, release, treatment, or removal of any Hazardous Substances, including without limitation the following: the Comprehensive Environmental Response Compensation and Liability Act of 1980, 42 U.S.C. Sections 9601, et se ., as amended ("CERCLA"); the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976, 42 U.S.C. Sections 6901, et SeMC ., as amended ("RCRA'); the Emergency Planning and Community Right to Know Act of 1986, 42 U.S.C. Sections 11001 et sea., as amended; the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seM., as amended; the Clean Air Act, 42 U.S.C. Sections 7401 et sect., as amended; the Clean Water Act, 33 U.S.C. Section 1251, et SeMc ., as amended; the Toxic Substances Control Act, 15 U.S.C. Sections 2601 et seq., as amended; the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. Sections 136 et seq., as amended; the Federal Safe Drinking Water Act, 42 U.S.C. Sections 300f et sea., as amended; the Federal Radon and Indoor Air Quality Research Act, 42 U.S.C. Sections 7401 et se ., as amended; the Occupational Safety and Health Act, 29 U.S.C. Sections 651 et seq., as amended; and California Health and Safety Code Section 25100, et seMc . "General Plan" shall mean City's 2006 General Plan adopted by the City Council on July 25, 2006, by Resolution No. 2006-76, as amended through the Agreement Date but excluding any amendment after the Agreement Date that impairs or restricts Property Owner's rights set forth in this Agreement, unless such amendment is expressly authorized by this Agreement, is authorized by Sections 8 or 9, or is specifically agreed to by Property Owner. The Land Use Plan of the Land Use Element of the General Plan was approved by City voters in a general election on November 7, 2006. "Hazardous Substances" means any toxic substance or waste, pollutant, hazardous substance or waste, contaminant, special waste, industrial substance or waste, petroleum or petroleum -derived substance or waste, or any toxic or hazardous constituent or additive to or breakdown component from any such substance or waste, including without limitation any substance, waste, or material regulated under or defined as "hazardous" or "toxic" under any Environmental Law. "Mortgage" shall mean a mortgage, deed of trust, sale and leaseback arrangement, or any other form of conveyance in which the Property, or a part or interest in the Property, is pledged as security and contracted for in good faith and for fair value. 1.1 21-92 "Mort ggee" shall mean the holder of a beneficial interest under a Mortgage or any successor or assignee of the Mortgagee. "Notice of Default" shall have the meaning ascribed in Section 8.1 of this Agreement. "Party" or "Parties" shall mean either City or Property Owner or both, as determined by the context. "Project" shall mean all on -site and off -site improvements that Property Owner is authorized and/or may be required to construct with respect to each parcel of the Property, as provided in this Agreement and the Development Regulations, as the same may be modified or amended from time to time consistent with this Agreement and applicable law. "Pro e "is described in Exhibit "A" and generally depicted on Exhibit "B" as The Tennis and Pickleball Club, The Residential, and The Hotel Sub -Areas shown on "Exhibit B". "Property Owner" shall mean Golf Realty Fund, a California limited partnership and any successor or assignee, including lessees, to all or any portion of the right, title, and interest of Golf Realty Fund in and to ownership of all or a portion of the Property. "Public Benefit Fee" shall have the meaning ascribed in Section 3.1 of this Agreement. "Subsequent Development Approvals" shall mean all discretionary development and building approvals that Property Owner is permitted to obtain to Develop the Project on and with respect to the Property after the Agreement Date consistent with the Development Regulations. "Term" shall have the meaning ascribed in Section 2.4 of this Agreement. "Termination Date" and "Lot Termination Date" shall have the meaning ascribed in Section 2.4 of this Agreement. "Transfer" shall have the meaning ascribed in Section 11 of this Agreement. 2. General Provisions. 2.1 Plan Consistencv. Zoning Imnlementation. This Agreement and the Development Regulations applicable to the Property are consistent with the General Plan and the Newport Beach Country Club Planned Community Development Plan (PC-47) as amended by the approvals in the Development Plan adopted concurrently herewith (including but not limited to the amendment to the Newport Beach Country Club Planned Community Development Plan (PC-47). The amendment to the Local Coastal Program Implementation Plan is subject to final review and approval by the California Coastal Commission. 2.2 Binding Effect of Agreement. The Property is hereby made subject to this Agreement. Development of the Property is hereby authorized and shall be carried out in accordance with the terms of this Agreement. C 21-93 2.3 ProppVy Owner Rgpresentations and Warranties Regarding Ownership of the Property and Related Matters Pertaining to this Agreement. Property Owner and each person executing this Agreement on behalf of Property Owner hereby represents and warrants to City as follows: (i) Property Owner or any co-owner comprising Property Owner is a legal entity and that such entity is duly fonned and existing and is authorized to do business in the State of California; (ii) if Property Owner or any co-owner comprising Property Owner is a natural person that such natural person has the legal right and capacity to execute this Agreement; (iii) that all actions required to be taken by all persons and entities comprising Property Owner to enter into this Agreement have been taken and that Property Owner has the legal authority to enter into this Agreement; (iv) Property Owner's entering into and performing its obligations set forth in this Agreement will not result in a violation of any obligation, contractual or otherwise, that Property Owner or any person or entity comprising Property Owner has to any third party; (v) that neither Property Owner nor any co-owner comprising Property Owner is the subject of any voluntary or involuntary petition in bankruptcy; and (vi) Property Owner has the authority and ability to enter into or perform any of its obligations set forth in this Agreement. 2.4 Term. The term of this Agreement (the "Term" shall commence on the Effective Date and continue until 20_, unless otherwise terminated or modified pursuant to its terms. Notwithstanding any other provision set forth in this Agreement to the contrary, if any Party reasonably determines that the Effective Date will not occur because (i) the Adopting Ordinance or any of the Development Regulations approved on or before the Agreement Date for the Project has/have been disapproved by City's voters at a referendum election or (ii) a final non - appealable judgment is entered in a judicial action challenging the validity or legality of the Adopting Ordinance, this Agreement, the LCPA for the Project and/or any of the Development Regulations for the Project approved on or before the Agreement Date such that this Agreement and/or any of such Development Regulations is/are invalid and unenforceable in whole or in such a substantial part that the judgment substantially impairs such Party's rights or substantially increases its obligations or risks hereunder or thereunder, then such Party, in its sole and absolute discretion, shall have the right to terminate this Agreement upon delivery of a written notice of termination to the other Party, in which event neither Party shall have any further rights or obligations hereunder except that Property Owner's indemnity obligations set forth in Article 10 shall remain in full force and effect and shall be enforceable, and the Development Regulations applicable to the Project and the Property only (but not those general Development Regulations applicable to other properties in the City) shall be repealed by the City after delivery of said notice of termination except for the Development Regulations that have been disapproved by City's voters at a referendum election and, therefore, never took effect. The Termination Date shall be the earliest of the following dates: (i) the tenth (10`h) anniversary of the Effective Date; (ii) such earlier date that this Agreement may be terminated in accordance with Articles 5, 7, and/or Section 8.3 of this Agreement and/or Sections 65865.1 and/or 65868 of the Development Agreement Statute; or (iii) completion of the Project in accordance with the terms of this Agreement, including Property Owner's complete satisfaction, performance, and payment, as applicable, of all Development Exactions, the issuance of all required final 7 21-94 occupancy permits, and acceptance by City or applicable public agency(ies) or private entity(ies) of all required offers of dedication. Notwithstanding any other provision set forth in this Agreement to the contrary, the provisions set forth in Article 10 and Section 14.11 (as well as any other Property Owner obligations set forth in this Agreement that are expressly written to survive the Termination Date) shall survive the Termination Date of this Agreement. 3. Public Benefits. 3.1 Public Benefit Fee. As consideration for City's approval and performance of its obligations set forth in this Agreement, Property Owner shall pay to City a fee that shall be in addition to any other fee or charge to which the Property and the Project would otherwise be subject to (herein, the "Public Benefit Fee") in the total sum of six hundred eighty-five thousand seven hundred ninety six dollars and 25/100 ($685,796.25) broken down as follows; (i) one -hundred twenty six thousand and nine hundred ninety dollars and 00/100 ($126,990 per residential dwelling unit) for a sum of six hundred thirty four thousand nine hundred fifty dollars and 00/100 ($634,950.00) for the residential units; and (ii) thirteen dollars and 65/100 ($13.65) per square foot of the three thousand seven hundred twenty-five (3,725) square foot Tennis and Pickleball Clubhouse for a sum of fifty thousand eight hundred forty six dollars and 25/100 ($50,846.25), with the unpaid balance of said Public Benefit Fee increased on the first January I following the Effective Date of this Agreement by the percentage increase in the CPI Index between the Effective Date and said January lst date (the first "Adjustment Date") and thereafter with the unpaid balance of said Public Benefit Fee increased on each subsequent January 1 during the Term of this Agreement (each, an "Adjustment Date") by the percentage increase in the CPI Index in the year prior to the applicable Adjustment Date. The amount of the percentage increase in the CPI Index on the applicable Adjustment Dates shall in each instance be calculated based on the then most recently available CPI Index figures such that, for example, if the Effective Date of this Agreement falls on July 1 and the most recently available CPI Index figure on the first Adjustment Date (January 1 of the following year) is the CPI Index for November of the preceding year, the percentage increase in the CPI Index for that partial year (a 6-month period) shall be calculated by comparing the CPI Index for November of the preceding year with the CPI Index for May of the preceding year (a 6-month period). In no event, however, shall application of the CPI Index reduce the amount of the Public Benefit Fee (or unpaid portion thereof) below the amount in effect prior to any applicable Adjustment Date. Property Owner shall pay the Public Benefit Fee at the following time(s); (i) As to the residential dwelling units, prior to the issuance of the first building permit for any residential unit; and (ii) as to the Tennis and Pickleball Clubhouse, prior to the issuance of the first building permit. Notwithstanding any other provision set forth in this Agreement to the contrary, during the Term of this Agreement, City shall not increase the Public Benefit Fee except pursuant to the CPI Index as stated in this Section 3.1. The Public Fee Benefit Fee shall be calculated based on the total gross square footage of the Tennis and Pickleball Clubhouse. Property Owner shall not be entitled to any credit or offset to the Public Benefit Fee for any existing buildings or structures. Property Owner acknowledges by its approval and execution of this Agreement that it is voluntarily agreeing to pay the Public Benefit Fee, that its obligation to pay the Public Benefit Fee is an essential term of this Agreement and is not severable from City's obligations and Property Owner's vesting rights to be acquired hereunder, and that Property Owner expressly waives any 1; 21-95 constitutional, statutory, or common law right it might have in the absence of this Agreement to protest or challenge the payment of such fee on any ground whatsoever, including without limitation pursuant to the Fifth and Fourteenth Amendments to the United States Constitution, California Constitution Article I Section 19, the Mitigation Fee Act (California Government Code Section 66000 et seq.), or otherwise. In addition to any other remedy set forth in this Agreement for Property Owner's default, if Property Owner shall fail to timely pay any portion of the Public Benefit Fee when due City shall have the right to withhold issuance of any further building permits, occupancy permits, or other development or building permits for the Development Plan. 12 Other Public Benefits. The development of the Project will include the addition of Visitor -Serving Uses consistent with the City's Coastal Land Use Plan and will provide a unique amenity for those visitors whose interests include tennis and pickleball recreational uses. It is anticipated that the Property will continue to host numerous events of significant social and economic benefit to the City, its citizens, businesses and charitable institutions. 4. Development of Project. 4.1 Applicable Regulations; Property Owner's Vested Rights and City's Reservation of Discretion With Respect to Subsequent Development Approvals. Other than as expressly set forth in this Agreement, during the Term of this Agreement, (i) Property Owner shall have the vested right to Develop the Project on and with respect to the Property in accordance with the terms of the Development Regulations and this Agreement and (ii) City shall not prohibit or prevent development of the Property on grounds inconsistent with the Development Regulations or this Agreement. Notwithstanding the foregoing, nothing herein is intended to limit or restrict City's discretion with respect to (i) review and approval requirements contained in the Development Regulations, (ii) exercise of any discretionary authority City retains under the Development Regulations, (iii) the approval, conditional approval, or denial of any Subsequent Development Approvals applied for by Property Owner, or that are required, for Development of the Project as of the Agreement Date provided that all such actions are consistent with the Development Regulations, or (iv) any environmental approvals that may be required under CEQA or any other federal or state law or regulation in conjunction with any Subsequent Development Approvals that may be required for the Project, and in this regard, as to future actions referred to in clauses (i)-(iv) of this sentence, City reserves its full discretion to the same extent City would have such discretion in the absence of this Agreement. In addition, it is understood and agreed that nothing in this Agreement is intended to vest Property Owner's rights with respect to any laws, regulations, rules, or official policies of any other governmental agency or public utility company with jurisdiction over the Property or the Project; or any applicable federal or state laws, regulations, rules, or official policies that may be inconsistent with this Agreement and that override or supersede the provisions set forth in this Agreement, and regardless of whether such overriding or superseding laws, regulations, rules, or official policies are adopted or applied to the Property or the Project prior or subsequent to the Agreement Date. Property Owner has expended and will continue to expend substantial amounts of time and money in the planning and entitlement process to permit Development of the Project in the future. Property Owner represents and City acknowledges that Property Owner would not make these D] 21-96 expenditures without this Agreement, and that Property Owner is and will be making these expenditures in reasonable reliance upon obtaining vested rights to Develop the Project as set forth in this Agreement. Property Owner may apply to City for permits or approvals necessary to modify or amend the Development specified in the Development Regulations, provided that unless this Agreement also is amended, the request does not propose an increase in the maximum density, intensity, height, or size of proposed structures, or a change in use that generates more peak hour traffic or more daily traffic. In addition, Property Owner may apply to City for approval of minor amendments to existing tentative tract maps, tentative parcel maps, or associated conditions of approval, consistent with City of Newport Beach Municipal Code section 19.12.090. This Agreement does not constitute a promise or commitment by City to approve any such permit or approval, or to approve the same with or without any particular requirements or conditions, and City's discretion with respect to such matters shall be the same as it would be in the absence of this Agreement. 4.2 No Conflicting Enactments. Except to the extent City reserves its discretion as expressly set forth in this Agreement, during the Term of this Agreement City shall not apply to the Project or the Property any ordinance, policy, rule, regulation, or other measure relating to Development of the Project that is enacted or becomes effective after the Agreement Date to the extent it conflicts with this Agreement. This Section 4.2 shall not restrict City's ability to enact an ordinance, policy, rule, regulation, or other measure applicable to the Project pursuant to California Government Code Section 65866 consistent with the procedures specified in Section 4.3 of this Agreement. In Pardee Construction Co. v. City of Camarillo (1984) 37 Ca1.3d 465, the California Supreme Court held that a construction company was not exempt from a cty's growth control ordinance even though the city and construction company had entered into a consent judgment (tantamount to a contract under California law) establishing the company's vested rights to develop its property consistent with the zoning. The California Supreme Court reached this result because the consent judgment failed to address the timing of development. The Parties intend to avoid the result of the Pardee case by acknowledging and providing in this Agreement that Property Owner shall have the vested right to Develop the Project on and with respect to the Property at the rate, timing, and sequencing that Property Owner deems appropriate within the exercise of Property Owner's sole subjective business judgment, provided that such Development occurs in accordance with this Agreement and the Development Regulations, notwithstanding adoption by City's electorate of an initiative to the contrary after the Agreement Date. No City moratorium or other similar limitation relating to the rate, timing, or sequencing of the Development of all or any part of the Project and whether enacted by initiative or another method, affecting subdivision maps, building permits, occupancy certificates, or other entitlement to use, shall apply to the Project to the extent such moratorium or other similar limitation restricts Property Owner's vested rights in this Agreement or otherwise conflicts with the express provisions of this Agreement. 4.3 Reservations of Authority. Notwithstanding any other provision set forth in this Agreement to the contrary, the laws, rules, regulations, and official policies set forth in this Section 4.3 shall apply to and govern the Development of the Project on and with respect to the Property. 10 21-97 4.3.1 Procedural Regulations. Procedural regulations relating to hearing bodies, petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals, and any other matter of procedure shall apply to the Property, provided that such procedural regulations are adopted and applied City-wide or to all other properties similarly situated in City. 4.3.2 Processing and Permit Fees. City shall have the right to charge and Property Owner shall be required to pay all applicable processing and permit fees to cover the reasonable cost to City of processing and reviewing applications and plans for any required Subsequent Development Approvals, building permits, excavation and grading permits, encroachment permits, and the 'like, for performing necessary studies and reports in connection therewith, inspecting the work constructed or installed by or on behalf of Property Owner, and monitoring compliance with any requirements applicable to Development of the Project, all at the rates in effect at the time fees are due. 4.3.3 Consistent Future City Regulations. City ordinances, resolutions, regulations, and official policies governing Development which do not conflict with the Development Regulations, or with respect to such regulations that do conflict, where Property Owner has consented in writing to the regulations, shall apply to the Property. 4.3.4 Development Exactions Applicable to Property. During the Term of this Agreement, Property Owner shall be required to satisfy and pay all Development Exactions at the time performance or payment is due to the same extent and in the same amount(s) that would apply to Property Owner and the Project in the absence of this Agreement; provided, however, that to the extent the scope and extent of a particular Development Exaction (excluding any development impact fee) for the Project has been established and fixed by City in the conditions of approval for any of the Development Regulations approved on or before the Agreement Date, City shall not alter, increase, or modify said Development Exaction in a manner that is inconsistent with such Development Regulations without Property Owner's prior written consent or as may be otherwise required pursuant to overriding federal or state laws or regulations (Section 4.3.5 hereinbelow). In addition, nothing in this Agreement is intended or shall be deemed to vest Property Owner against the obligation to pay any of the following (which are not included within the definition of "Development Exactions") in the full amount that would apply in the absence of this Agreement: (i) City's normal fees for processing, environmental assessment and review, tentative tract and parcel map review, plan checking, site review and approval, administrative review, building permit, grading permit, inspection, and similar fees imposed to recover City's costs associated with processing, reviewing, and inspecting project applications, plans, and specifications; (ii) fees and charges leviedby any other public agency, utility, district, or joint powers authority, regardless of whether City collects those fees and charges; or (iii) community facility district special taxes or special district assessments or similar assessments, business license fees, bonds or other security required for public improvements, transient occupancy taxes, sales taxes, property taxes, sewer lateral connection fees, water service connection fees, new water meter fees, and the Property Development Tax payable under Chapter 3.12 of City's Municipal Code. 4.3.5 Overriding Federal and State Laws and Regulations. Federal and state laws and regulations that override Property Owner's vested rights set forth in this Agreement shall apply to the Property, together with any City ordinances, resolutions, regulations, and official policies that are necessary to enable City to comply with the provisions of any such overriding federal or state laws and regulations, provided that (i) Property Owner does not waive its right to challenge 11 21-98 or contest the validity of any such purportedly overriding federal, state, or City law or regulation; and (ii) upon the discovery of any such overriding federal, state, or City law or regulation that prevents or precludes compliance with any provision of this Agreement, City or Property Owner shall provide to the other Party a written notice identifying the federal, state, or City law or regulation, together with a copy of the law or regulation and a brief written statement of the conflict(s) between that law or regulation and the provisions of this Agreement. Promptly thereafter City and Property Owner shall meet and confer in good faith in a reasonable attempt to determine whether a modification or suspension of this Agreement, in whole or in part, is necessary to comply with such overriding federal, state, or City law or regulation. In such negotiations, City and Property Owner agree to preserve the terms of this Agreement and the rights of Property Owner as derived from this Agreement to the maximum feasible extent while resolving the conflict. City agrees to cooperate with Property Owner at no cost to City in resolving the conflict in a manner which minimizes any financial impact of the conflict upon Property Owner. City also agrees to process in a prompt manner Property Owner's proposed changes to this Agreement, the Project and any of the Development Regulations as may be necessary to comply with such overriding federal, state, or City law or regulation; provided, however, that the approval of such changes by City shall be subject to the discretion of City, consistent with this Agreement. 4.3.6 Public Health and Safety. Any City ordinance, resolution, rule, regulation, program, or official policy that is necessary to protect persons on the Property or in the immediate vicinity from conditions dangerous to their health or safety, as reasonably determined by City, shall apply to the Property, even though the application of the ordinance, resolution, rule regulation, program, or official policy would result in the impairment of Property Owner's vested rights under this Agreement. 4.3.7 Uniform Building Standards. Existing and future building and building - related standards set forth in the uniform codes adopted and amended by City from time to time, including building, plumbing, mechanical, electrical, housing, swimming pool, and fire codes, and any modifications and amendments thereof shall all apply to the Project and the Property to the same extent that the same would apply in the absence of this Agreement. 4.3.8 Public Works Improvements. To the extent Property Owner constructs or installs any public improvements, works, or facilities, the City standards in effect for such public improvements, works, or facilities at the time of City's issuance of a permit, license, or other authorization for construction or installation of same shall apply. 4.3.9 No Guarantee or Reservation of Utility Capacityr. Notwithstanding any other provision set forth in this Agreement to the contrary, nothing in this Agreement is intended or shall be interpreted to require City to guarantee or reserve to or for the benefit of Property Owner or the Property any utility capacity, service, or facilities that may be needed to serve the Project, whether domestic or reclaimed water service, sanitary sewer transmission or wastewater treatment capacity, downstream drainage capacity, or otherwise, and City shall have the right to limit or restrict Development of the Project if and to the extent that City reasonably determines that inadequate utility capacity exists to adequately serve the Project at the time Development is scheduled to commence. 5. Amendment or Cancellation of Agreement. This Agreement may be amended or canceled in whole or in part only by mutual written and executed consent of the Parties in compliance with 12 21-99 California Government Code Section 65868 and Newport Beach Municipal Code Section 15.45.070 or by unilateral termination by City in the event of an uncured default of Property Owner. 6. Enforcement. Unless this Agreement is amended, canceled, modified, or suspended as authorized herein or pursuant to California Government Code section 65869.5, this Agreement shall be enforceable by either Party despite any change in any applicable general or specific plan, zoning, subdivision, or building regulation or other applicable ordinance or regulation adopted by City (including by City's electorate) that purports to apply to any or all of the Property. 7. Annual Review of Pronertv Owner's Compliance With Agreement. 7.1 General. City shall review this Agreement once during every twelve (12) month period following the Effective Date for compliance with the terms of this Agreement as provided in Government Code Section 65865.1. Property Owner (including any successor to the Property Owner executing this Agreement on or before the Agreement Date) shall pay City a reasonable fee in an amount City may reasonably establish from time to time to cover the actual and necessary costs for the annual review. City's failure to timely provide or conduct an annual review shall not constitute a Default hereunder by City. 7.2 Pro eLt Owner Obligation to Demonstrate Good Faith Compliance. During each annual review by City, Property Owner is required to demonstrate good faith compliance with the terms of the Agreement. Property Owner agrees to furnish such evidence of good faith compliance as City, in the reasonable exercise of its discretion, may require, thirty (30) days prior to each anniversary of the Effective Date during the Term. 7.3 Procedure. The Zoning Administrator shall conduct a duly noticed hearing and shall determine, on the basis of substantial evidence, whether or not Property Owner has, for the period under review, complied with the terms of this Agreement. If the Zoning Administrator finds that Property Owner has so complied, the annual review shall be concluded. If the Zoning Administrator finds, on the basis of substantial evidence, that Property Owner has not so complied, written notice shall be sent to Property Owner by first class mail of the Zoning Administrator's finding of non-compliance, and Property Owner shall be given at least ten (10) calendar days to cure any noncompliance that relates to the payment of money and thirty (30) calendar days to cure any other type of noncompliance. If a cure not relating to the payment of money cannot be completed within thirty (30) calendar days for reasons which are beyond the control of Property Owner, Property Owner must commence the cure within such thirty (30) calendar days and diligently pursue such cure to completion. If Property Owner fails to cure such noncompliance within the time(s) set forth above, such failure shall be considered to be a Default and City shall be entitled to exercise the remedies set forth in Article 8 below. 7.4 Annual Review a Non -Exclusive Means for Determining and Requiring Cure of Pro ert Owner's Default. 13 21-100 The annual review procedures set forth in this Article 7 shall not be the exclusive means for City to identify a Default by Property Owner or limit City's rights or remedies for any such Default. Events of Default. 8.1 General Provisions. In the event of any material default, breach, or violation of the terms of this Agreement ("Default"), the Party alleging a Default shall deliver a written notice (each, a "Notice of Default") to the defaulting Party. The Notice of Default shall specify the nature of the alleged Default and a reasonable manner and sufficient period of time (ten (10) calendar days if the Default relates to the failure to timely make a monetary payment due hereunder and not less than thirty (30) calendar days in the event of non -monetary Defaults) in which the Default must be cured ("Cure Period"). During the Cure Period, the Party charged shall not be considered in Default for the purposes of termination of this Agreement or institution of legal proceedings. If the alleged Default is cured within the Cure Period, then the Default thereafter shall be deemed not to exist. If a non -monetary Default cannot be cured during the Cure Period with the exercise of commercially reasonable diligence, the defaulting Party must promptly commence to cure as quickly as possible, and in no event later than thirty (30) calendar days after it receives the Notice of Default, and thereafter diligently pursue said cure to completion. Notwithstanding the foregoing, the City is not required to give Property Owner notice of default and may immediately pursue remedies for a Property Owner Default that result in an immediate threat to public health, safety or welfare. 8.2 Default by Property Owner. If Property Owner is alleged to have committed a non -monetary Default and it disputes the claimed Default, it may make a written request for an appeal hearing before the City Council within ten (10) days of receiving the Notice of Default, and a public hearing shall be scheduled at the next available City Council meeting to consider Property Owner's appeal of the Notice of Default. Failure to appeal a Notice of Default to the City Council within the ten (10) day period shall waive any right to a hearing on the claimed Default. If Property Owner's appeal of the Notice of Default is timely and in good faith but after a public hearing of Property Owner's appeal the City Council concludes that Property Owner is in Default as alleged in the Notice of Default, the accrual date for commencement of the thirty (30) day Cure Period provided in Section 8.1 shall be extended until the City Council's denial of Property Owner's appeal is communicated to Property Owner in writing. 8.3 Citv's Option to Terminate Agreement. In the event of an alleged Property Owner Default, City may not terminate this Agreement without first delivering a written Notice of Default and providing Property Owner with the opportunity to cure the Default within the Cure Period, as provided in Section 8.1, and complying with Section 8.2 if Property Owner timely appeals any Notice of Default. A termination of this Agreement by City shall be valid only if good cause exists and is supported by evidence presented to the City Council at or in connection with a duly noticed public hearing to establish the existence of a Default. The validity of any termination may be judicially challenged by Property Owner. Any such judicial challenge must be brought within thirty (30) days of service on Property Owner, 14 21-101 by first class mail, postage prepaid, of written notice of termination by City or a written notice of City's determination of an appeal of the Notice of Default as provided in Section 8.2. 8.4 Default by City. If Property Owner alleges a City Default and alleges that the City has not cured the Default within the Cure Period, Property Owner may pursue any equitable remedy available to it under this Agreement, including, without limitation, an action for a writ of mandamus, injunctive relief, or specific performance of City's obligations set forth in this Agreement. Upon a City Default, any resulting delays in Property Owner's performance hereunder shall neither be a Property Owner Default nor constitute grounds for termination or cancellation of this Agreement by City and shall, at Property Owner's option (and provided Property Owner delivers written notice to City within thirty (30) days of the commencement of the alleged City Default), extend the Term for a period equal to the length of the delay. 8.5 Waiver, Failure or delay by either Party in delivering a Notice of Default shall not waive that Party's right to deliver a fixture Notice of Default of the same or any other Default. 8.6 Sbecific Performance Remedv. Due to the size, nature, and scope of the Project, it will not be practical or possible to restore the Property to its pre-existing condition once implementation of this Agreement has begun. After such implementation, both Property Owner and City may be foreclosed from other choices they may have had to plan for the development of the Property, to utilize the Property or provide for other benefits and alternatives. Property Owner and City have invested significant time and resources and performed extensive planning and processing of the Project in agreeing to the terms of this Agreement and will be investing even more significant time and resources in implementing the Project in reliance upon the terms of this Agreement. It is not possible to determine the sum of money which would adequately compensate Property Owner or City for such efforts. For the above reasons, City and Property Owner agree that damages would not be an adequate remedy if either City or Property Owner fails to carry out its obligations under this Agreement. Therefore, specific performance of this Agreement is necessary to compensate Property Owner if City fails to carry out its obligations under this Agreement or to compensate City if Property Owner falls to carry out its obligations under this Agreement. 8.7 Monetary Damaees. The Parties agree that monetary damages shall not be an available remedy for either Party for a Default hereunder by the other Party; provided, however, that (i) nothing in this Section 8.7 is intended or shall be interpreted to limit or restrict City's right to recover the Public Benefit Fees due from Property Owner as set forth herein; and (ii) nothing in this Section 8.7 is intended or shall be interpreted to limit or restrict Property Owner's indemnity obligations set forth in Article 10 or the right of the prevailing Party in any Action to recover its litigation expenses, as set forth in Section 8.10. In no event shall damages be awarded against the City upon an event of default or upon termination of this Agreement. Developer expressly agrees that the City, any City agencies and their respective elected and appointed councils, boards, commissions, officers, agents, employees, volunteers and representatives (collectively, for purposes of this Section 8.7, 15 21-102 "City") shall not be liable for any monetary damage for a Default by the City or any claims against City arising out of this Agreement. Developer hereby expressly waives any such monetary damages against the City. The sole and exclusive judicial remedy for Developer in the event of a Default by the City shall be an action in mandamus, specific performance, or other injunctive or declaratory relief. 8.8 Additional City Remedy for Property Owner's Default. In the event of any Default by Property Owner, in addition to any other remedies which may be available to City, whether legal or equitable, City shall be entitled to receive and retain any Development Exactions applicable to the Project or the Property, including any fees, grants, dedications, or improvements to public property which it may have received prior to Property Owner's Default without recourse from Property Owner or its successors or assigns. 8.9 No Personal Liability of City Officials, Employees, or Agents. No City official, employee, or agent shall have any personal liability hereunder for a Default by City of any of its obligations set forth in this Agreement. 8.10 Recover of f Legal Expenses by Prevailing Part. y�y Action. In any judicial proceeding, arbitration, or mediation (collectively, an "Action") between the Parties that seeks to enforce the provisions of this Agreement or arises out of this Agreement, the prevailing Party shall not recover any of its costs and expenses, regardless of whether they would be recoverable under California Code of Civil Procedure section 1033.5 or California Civil Code section 1717 in the absence of this Agreement. These costs and expenses include, but are not limited to, court costs, expert witness fees, attorneys' fees, City staff costs (including overhead), and costs of investigation and preparation before initiation of the Action. 9. Force Maieure. Neither Party shall be deemed to be in Default where failure or delay in performance of any of its obligations under this Agreement is caused, through no fault of the Party whose performance is prevented or delayed, by floods, earthquakes, other acts of God, fires, wars, riots or similar hostilities, strikes or other labor difficulties, state or federal regulations, or court actions. Except as specified above, nonperformance shall not be excused because of the act or omission of a third person. In no event shall the occurrence of an event of force maj eure operate to extend the Term of this Agreement. In addition, in no event shall the time for performance of a monetary obligation, including without limitation Property Owner's obligation to pay Public Benefit Fees, be extended pursuant to this Section. 10. Indemnity Obligations of Pronertv Owner. 10.1 Indemnity Arising From Acts or Omissions of Prouerty Owner. Property Owner shall indemnify, defend, and hold harmless City and City's officials, employees, agents, attorneys, and contractors (collectively, the "City's Affiliated Parties") from and against all suits, claims, liabilities, losses, damages, penalties, obligations, and expenses (including but not limited to attorneys' fees and costs) (collectively, a "Claim") that may arise, 16 21-103 directly or indirectly, from the acts, omissions, or operations of Property Owner or Property Owner's agents, contractors, subcontractors, agents, or employees in the course of Development of the Project or any other activities of Property Owner relating to the Property or pursuant to this Agreement. City shall have the right, in its sole discretion, to select and retain counsel to defend any Claim filed against City and/or any of City's Affiliated Parties, and Property Owner shall pay the reasonable cost for defense of any Claim. The indemnity provisions in this Section 10.1 shall commence on the Agreement Date, regardless of whether the Effective Date occurs, and shall survive the Termination Date. 10.2 Third Part. ate In addition to its indemnity obligations set forth in Section 10.1, Property Owner shall indemnify, defend, and hold harmless City and City's Affiliated Parties from and against any Claim against City or City's Affiliated Parties seeking to attack, set aside, void, or annul the approval of this Agreement, the Adopting Ordinance, any of the Development Regulations for the Project (including without limitation any actions taken pursuant to CEQA with respect thereto), any Subsequent Development Approval, or the approval of any permit granted pursuant to this Agreement. Said indemnity obligation shall include payment of attorney's fees, expert witness fees, City staff costs, and court costs. City shall promptly notify Property Owner of any such Clain and City shall cooperate with Property Owner in the defense of such Claim. If City fails to promptly notify Property Owner of such Claim, Property Owner shall not be responsible to indemnify, defend, and hold City harmless from such Claim until Property Owner is so notified and if City fails to cooperate in the defense of a Claim Property Owner shall not be responsible to defend, indemnify, and hold harmless City during the period that City so fails to cooperate or for any losses attributable thereto. City shall be entitled to retain separate counsel to represent City against the Claim and the City's defense costs for its separate counsel shall be included in Property Owner's indemnity obligation, provided that such counsel shall reasonably cooperate with Property Owner in an effort to minimize the total litigation expenses incurred by Property Owner. In the event either City or Property Owner recovers any attorney's fees, expert witness fees, costs, interest, or other amounts from the party or parties asserting the Claim, Property Owner shall be entitled to retain the same (provided it has fully performed its indemnity obligations hereunder). The indemnity provisions in this Section 10.2 shall commence on the Agreement Date, regardless of whether the Effective Date occurs, and shall survive the Termination Date. 10.3 Environmental Indemnity. In addition to its indemnity obligations set forth in Section 10.1, from and after the Agreement Date Property Owner shall indemnify, defend, and hold harmless City and City's Affiliated Parties from and against any and all Claims for personal injury or death, property damage, economic loss, statutory penalties or fines, and damages of any kind or nature whatsoever, including without limitation attorney's fees, expert witness fees, and costs, based upon or arising from any of the following: (i) the actual or alleged presence of any Hazardous Substance on or under any of the Property in violation of any applicable Environmental Law; (ii) the actual or alleged migration of any Hazardous Substance from the Property through the soils or groundwater to a location or locations off of the Property; and. (iii) the storage, handling, transport, or disposal of any Hazardous Substance on, to, or from the Property and any other area disturbed, graded, or developed by Property Owner in connection with Property Owner's Development of the Project. The foregoing indemnity obligations shall not apply to any Hazardous Substance placed or stored 17 21-104 on a separate legal lot within the Property after the Lot Termination Date for said lot, as provided in Section 2.4 of this Agreement. The indemnity provisions in this Section 10.3 shall continence on the Agreement Date, regardless of whether the Effective Date occurs, and shall survive the Termination Date. 11. Assignment. Property Owner shall have the right to sell, transfer, or assign (hereinafter, collectively, a "Transfer") Property Owner's interest in or fee title to the Property, in whole or in part, to any person, partnership, joint venture, firm, or corporation (which successor, as of the effective date of the Transfer, shall become the "Property Owner" under this Agreement) at any time from the Agreement Date until the Termination Date; provided, however, that no such Transfer shall violate the provisions of the Subdivision Map Act (Government Code Section 66410 et seq.) or City's local subdivision ordinance and any such Transfer shall include the assignment and assumption of Property Owner's rights, duties, and obligations set forth in or arising under this Agreement as to the Property or the portion thereof so Transferred and shall be made in strict compliance with the following conditions precedent: (i) no transfer or assignment of any of Property Owner's rights or interest under this Agreement shall be made unless made together with the Transfer of all or a part of the Property; and (ii) prior to the effective date of any proposed Transfer, Property Owner (as transferor) shall notify City, in writing, of such proposed Transfer and deliver to City a written assignment and assumption, executed in recordable form by the transferring and successor Property Owner and in a form subject to the reasonable approval of the City Attorney of City (or designee), pursuant to which the transferring Property Owner assigns to the successor Property Owner and the successor Property Owner assumes from the transferring Property Owner all of the rights and obligations of the transferring Property Owner with respect to the Property or portion thereof to be so Transferred, including in the case of a partial Transfer the obligation to perform such obligations that must be performed off of the portion of the Property so Transferred that are a condition precedent to the successor Property Owner's right to develop the portion of the Property so Transferred. Any Permitted Transferee shall have all of the same rights, benefits, duties, obligations, and liabilities of Developer under this Agreement with respect to the portion of, or interest in, the Property sold, transferred, and assigned to such Permitted Transferee; provided, however, that in the event of a Transfer of less than all of the Property, or interest in the Property, no such Permitted Transferee shall have the right to enter into an amendment of this Agreement that jeopardizes or impairs the rights or increases the obligations of the Developer with respect to the balance of the Property, without Developer's written consent. Notwithstanding any Transfer, the transferring Property Owner shall continue to be jointly and severally liable to City, together with the successor Property Owner, to perforrn all of the transferred obligations set forth in or arising under this Agreement unless the transferring Property Owner is given a release in writing by City, which release shall be only with respect to the portion of the Property so Transferred in the event of a partial Transfer. City shall provide such a release upon the transferring Property Owner's full satisfaction of all of the following conditions: (i) the transferring Property Owner no longer has a legal or equitable interest in the portion of the Property so Transferred other than as a beneficiary under a deed of trust; (ii) the transferring Property Owner is not then in Default under this Agreement and no condition exists that with the passage of time or the giving of notice, or both, would constitute a Default hereunder; (iii) the transferring Property Owner has provided City with the notice and the fully executed written and recordable assignment and assumption agreement required as set forth in the first paragraph of this Section 11; and (iv) 21-105 the successor Property Owner either (A) provides City with substitute security equivalent to any security previously provided by the transferring Property Owner to City to secure performance of the successor Property Owner's obligations hereunder with respect to the Property or the portion of the Property so Transferred or (B) if the transferred obligation in question is not a secured obligation, the successor Property Owner either provides security reasonably satisfactory to City or otherwise demonstrates to City's reasonable satisfaction that the successor Property Owner has the financial resources or commitments available to perform the transferred obligation at the time and in the manner required under this Agreement and the Development Regulations for the Project. Any determination by the City in regards to the second paragraph of Section 11 subpart (iv) (A) and/or (B) shall be documented in writing. 12. Mortgagee Rights. 12.1 Encumbrances on Pronertv. The Parties agree that this Agreement shall not prevent or limit Property Owner in any manner from encumbering the Property, any part of the Property, or any improvements on the Property with any Mortgage securing financing with respect to the construction, development, use, or operation of the Project. 12.2 Mortgagee Protection. This Agreement shall be superior and senior to the lien of any Mortgage. Nevertheless, no breach of this Agreement shall defeat, render invalid, diminish, or impair the lien of any Mortgage made in good faith and for value. Any acquisition or acceptance of title or any right or interest in the Property or part of the Property by a Mortgagee (whether due to foreclosure, trustee's sale, deed in lieu of foreclosure, lease termination, or otherwise) shall be subject to all of the terms and conditions of this Agreement. Any Mortgagee who takes title to the Property or any part of the Property shall be entitled to the benefits arising under this Agreement. 12.3 Mortgagee Not Obligated. Notwithstanding the provisions of this Section 12.3, a Mortgagee will not have any obligation or duty under the terms of this Agreement to perform the obligations of Property Owner or other affirmative covenants of Property Owner, or to guarantee this performance except that: (i) the Mortgagee shall have no right to develop the Project under the Development Regulations without fully complying with the terms of this Agreement; and (ii) to the extent that any covenant to be performed by Property Owner is a condition to the performance of a covenant by City, that performance shall continue to be a condition precedent to City's performance. 12.4 Notice of Default to Mortgagee; Right of Mortgagee to Cure. Each Mortgagee shall, upon written request to City, be entitled to receive written notice from City of (i) the results of the periodic review of compliance specified in Article 7 of this Agreement, and (ii) any default by Property Owner of its obligations set forth in this Agreement. Each Mortgagee shall have a further right, but not an obligation, to cure the Default within ten (10) days after receiving a Notice of Default with respect to a monetary Default and within thirty (30) days after receiving a Notice of Default with respect to a non -monetary Default. If the 19 21-106 Mortgagee can only remedy or cure a non -monetary Default by obtaining possession of the Property, then the Mortgagee shall have the right to seek to obtain possession with diligence and continuity through a receiver or otherwise, and to remedy or cure the non -monetary Default within thirty (30) days after obtaining possession and, except in case of emergency or to protect the public health or safety, City may not exercise any of its judicial remedies set forth in this Agreement to terminate or substantially alter the rights of the Mortgagee until expiration of the thirty (30)-day period. In the case of a non -monetary Default that cannot with diligence be remedied or cured within thirty (30) days, the Mortgagee shall have additional time as is reasonably necessary to remedy or cure the Default, provided the Mortgagee promptly commences to cure the non - monetary Default within thirty (30) days and diligently prosecutes the cure to completion. 13. Bankruptcy. The obligations of this Agreement shall not be dischargeable in bankruptcy. 14. Miscellaneous Terms. 14.1 Reserved. 14.2 Notices. Any notice or demand that shall be required or permitted by law or any provision of this Agreement shall be in writing. If the notice or demand will be served upon a Party, it either shall be personally delivered to the Party; deposited by a reliable courier service that provides a receipt showing date and time of delivery with courier charges prepaid. The notice or demand shall be addressed as follows: TO CITY: City of Newport Beach 100 Civic Center Drive Newport Beach, California 92660 Attn: City Manager With a copy to: City of Newport Beach 100 Civic Center Drive Newport Beach, California 92660 Attn: City Attorney TO PROPERTY OWNER: Golf Realty Fund One Upper Newport Plaza Newport Beach, California 92660 Attn: Robert O'Hill With a copy to: Either Party may change the address stated in this Section 13.1 by delivering notice to the other Party in the manner provided in this Section 13.1, and thereafter notices to such Party shall be addressed and submitted to the new address. Notices delivered in accordance with this Agreement 20 21-107 shall be deemed to be delivered upon the earlier of: (i) the date received or (iii) three business days after deposit in the mail as provided above. 14.3 Project as a Private Undertakine. Any future Development of the Project is a private undertaking. Neither Party will be acting as the agent of the other in any respect, and each Party will be an independent contracting entity with respect to the terms, covenants, and conditions set forth in this Agreement. This Agreement forms no partnership, joint venture, or other association of any kind. The only relationship between the Parties is that of a government entity regulating the Development of private property by the owner or user of the Property. 14.4 Cooperation. Each Party shall cooperate with and provide reasonable assistance to the other Party to the extent consistent with and necessary to implement this Agreement. Upon the request of a Party at any time, the other Party shall promptly execute, with acknowledgement or affidavit if reasonably required, and file or record the required instrLunents and writings and take any actions as may be reasonably necessary to implement this Agreement or to evidence or consummate the transactions contemplated by this Agreement. 14.5 Estoppel Certificates. At any time, either Party may deliver written notice to the other Party requesting that that Party certify in writing that, to the best of its knowledge: (i) this Agreement is in full force and effect and is binding on the Party; (ii) this Agreement has not been amended or modified either orally or in writing or, if this Agreement has been amended, the Party providing the certification shall identify the amendments or modifications; and (iii) the requesting Party is not in Default in the performance of its obligations under this Agreement and no event or situation has occurred that with the passage of time or the giving of Notice or both would constitute a Default or, if such is not the case, then the other Party shall describe the nature and amount of the actual or prospective Default. The Party requested to furnish an estoppel certificate shall execute and return the certificate within thirty (30) days following receipt. Requests for the City to furnish an estoppel certificate shall include reimbursement for all administrative costs incurred by the City including reasonable attorney's fees incurred by the City in furnishing an estoppels certificate. 14.6 Rules of Construction. The singular includes the plural; the masculine and neuter include the feminine; "shall" is mandatory; and "may" is permissive. 14.7 Time Is of the Essence. Time is of the essence regarding each provision of this Agreement as to which time is an element. 14.8 Waiver. 21 21-108 The failure by a Party to insist upon the strict performance of any of the provisions of this Agreement by the other Party, and failure by a Party to exercise its rights upon a Default by the other Party, shall not constitute a waiver of that Party's right to demand strict compliance by the other Party in the future. 14.9 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be identical and may be introduced in evidence or used for any other purpose without any other counterpart, but all of which shall together constitute one (1) and the same agreement. 14.10 Entire Agreement. This Agreement constitutes the entire agreement between the Parties and supersedes all prior agreements and understandings, both written and oral, between the Parties with respect to the subject matter addressed in this Agreement. 14.11 Severability. The Parties intend that each and every obligation of the Parties is interdependent and interrelated with the other, and if any provision of this Agreement or the application of the provision to any Party or circumstances shall be held invalid or unenforceable to any extent, it is the intention of the Parties that the remainder of this Agreement or the application of the provision to persons or circumstances shall be rendered invalid or unenforceable. The Parties intend that neither Party shall receive any of the benefits of the Agreement without the full performance by such Party of all of its obligations provided for under this Agreement. Without limiting the generality of the foregoing, the Parties intend that Property Owner shall not receive any of the benefits of this Agreement if any of Property Owner's obligations are rendered void or unenforceable as the result of any third party litigation, and City shall be free to exercise its legislative discretion to amend or repeal the Development Regulations applicable to the Property and Property Owner shall cooperate as required, despite this Agreement, should third party litigation result in the nonperformance of Property Owner's obligations under this Agreement. The provisions of this Section 14.11 shall apply regardless of whether the Effective Date occurs and after the Termination Date. 14.12 Construction. This Agreement has been drafted after negotiation and revision. Both City and Property Owner are sophisticated parties who were represented by independent counsel throughout the negotiations or City and Property Owner had the opportunity to be so represented and voluntarily chose to not be so represented. City and Property Owner each agree and acknowledge that the terms of this Agreement are fair and reasonable, taking into account their respective purposes, terms, and conditions. This Agreement shall therefore be construed as a whole consistent with its fair meaning and applicable principle or presumptions of contract construction or interpretation, if any, shall be used to construe the whole or any part of this Agreement in favor of or against either Party. 14.13 Successors and Assigns; Constructive Notice and Acceptance. 22 21-109 The burdens of this Agreement shall be binding upon, and the benefits of this Agreement shall inure to, all successors in interest to the Parties to this Agreement. All provisions of this Agreement shall be enforceable as equitable servitudes and constitute covenants running with the land. Each covenant to do or refrain from doing some act hereunder with regard to Development of the Property: (i) is for the benefit of and is a burden upon every portion of the Property; (ii) runs with the Property and each portion thereof; and (iii) is binding upon each Party and each successor in interest during its ownership of the Property or any portion thereof. Every person or entity who now or later owns or acquires any right, title, or interest in any part of the Project or the Property is and shall be conclusively deemed to have consented and agreed to every provision of this Agreement. This Section 14.13 applies regardless of whether the instrument by which such person or entity acquires the interest refers to or acknowledges this Agreement and regardless of whether such person or entity has expressly entered into an assignment and assumption agreement as provided for in Section 11. 14.14 No Third Party Beneficiaries. The only Parties to this Agreement are City and Property Owner. This Agreement does not involve any third party beneficiaries, and it is not intended and shall not be construed to benefit or be enforceable by any other person or entity. 14.15 Anblicable Law and Venue. This Agreement shall be construed and enforced consistent with the internal laws of the State of California, without regard to conflicts of law principles. Any action at law or in equity arising under this Agreement or brought by any Party for the purpose of enforcing, construing, or determining the validity of any provision of this Agreement shall be filed and tried in the Superior Court of the County of Orange, State of California, or the United States District Court for the Central District of California. The Parties waive all provisions of law providing for the removal or change of venue to any other court. 14.16 Section Headings. All section headings and subheadings are inserted for convenience only and shall not affect construction or interpretation of this Agreement. 14.17 Incorporation of Recitals and Exhibits. All of the Recitals are incorporated into this Agreement by this reference. Exhibits A and B are attached to this Agreement and incorporated by this reference as follows: EXHIBIT DESCRIPTION DESIGNATION A Legal Description of Property B Depiction of the Property 23 21-110 14.18 Recordation. The City Clerk of City shall record this Agreement and any amendment, modification, or cancellation of this Agreement in the Office of the County Recorder of the County of Orange within the period required by California Government Code section 65868.5 and City of Newport Beach Municipal Code section 15.45.090. The date of recordation of this Agreement shall not modify or amend the Effective Date or the Termination Date. 24 21-111 ATTEST: Leilani 1. Brown City Clerk APPROVED AS TO FORM: Aaron C. Harp, City Attorney SIGNATURE PAGE TO DEVELOPMENT AGREEMENT "PROPERTY OWNER" GOLF REALTY FUND, a California limited partnership By: O Hill Capital, a California limited partnership Its General Partner By: Robert O Hill, General Partner "CITY" CITY OF NEWPORT BEACH 1-2 Its: Mayor 25 21-112 STATE OF CALIFORNIA COUNTY OF ORANGE On , before me, the undersigned, a Notary Public in and for said State, personally appeared and , personally known to me to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacities and that by their signature on the instrument the persons, or the entity upon behalf of which the persons acted, executed the instrument. Witness my hand and official seal. Notary Public in and for said County and State STATE OF CALIFORNIA COUNTY OF ORANGE On , before me, the undersigned, a Notary Public in and for said State, personally appeared and , personally known to me to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacities and that by their signature on the instrument the persons, or the entity upon behalf of which the persons acted, executed the instrument. Witness my hand and official seal. Notary Public in and for said County and State -26- 21-113 EXHIBIT A LEGAL ]DESCRIPTION OF PROPERTY The Property: PARCELS A, B, C AND D OF PARCEL MAP 2016-151, LOCATED IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, RECORDED IN BOOK 402 PAGES 24 THROUGH 32 INCLUSIVE OF PARCEL MAPS, RECORDS OF SAID COUNTY. AID-00773 v4 01.06.11 FINAL 21-114 EXHIBIT B DEPICTION OF PROPERTY A10-00773 A 01,06,11 RNAL 21-115 Attachment F Planning Commission Staff Report, Dated March 23, 2023 (without attachments) 21-116 PO cgL'FOP- SUBJECT: CITY OF NEWPORT BEACH PLANNING COMMISSION STAFF REPORT March 23, 2023 Agenda Item No. 2 Tennis and Pickleball Club at Newport Beach Project Amendment (PA2021-260) ■ General Plan Amendment ■ Local Coastal Program Amendment ■ Planned Community Development Plan Amendment ■ Development Agreement ■ Addendum to Mitigated Negative Declaration No. ND2010-008 SITE 1602 East Coast Highway LOCATION: APPLICANT: Robert O' Hill (Golf Realty Fund, Managing Owner) OWNER: Dba NBCC L & I PLANNER: David Lee, Senior Planner 949-644-3225 or dlee@newportbeachca.gov PROJECT SUMMARY The applicant requests an approval of legislative amendments to the approved Tennis Club at Newport Beach project to 1) reduce the number of future tennis courts from seven (7) to four (4) courts and add 14 pickleball courts, 2) increase the number of future hotel rooms from 27 to 41 rooms, 3) increase the gross floor area of ancillary uses within the future hotel by 4,686 square feet, and 4) provide three (3) attached condominium units and two (2) detached single-family residences in -lieu of five (5) detached single-family residences. The request also includes a new 10-year term Development Agreement to ensure the orderly development of the property and certain public benefits to the City. RECOMMENDATION 1) Conduct a public hearing; 2) Find that the Proposed Project will not result in any new significant impacts that were not previously analyzed in the adopted Mitigated Negative Declaration No. ND2010- 008 (SCH 2O10091052) for the Approved Project, and the addendum has been prepared to address reasonably foreseeable environmental impacts resulting from the Proposed Project; and 3) Adopt Resolution No. PC2023-014, recommending the City Council approval of PA2021-260, which includes adoption of a Mitigated Negative Declaration Addendum, and approval of a General Plan Amendment, Local Coastal Program 21-117 Tennis and Pickleball Club at Newport Beach Project Amendment (PA2021-260) Planning Commission, March 23, 2023 Page 2 Amendment, Planned Community Development Plan Amendment, and Development Agreement for The Tennis and Pickleball Club at Newport Beach Project located at 1602 East Coast Highway. 21-118 Tennis and Pickleball Club at Newport Beach Project Amendment (PA2021-260) Planning Commission, March 23, 2023 Page 3 VICINITY MAP .r`8 ,y, ,� •� ,+k - ►.Ar a '".. g� �y�+ , d �✓ �� ^' � ,�'' 4 Granville Dr. { �I FF +f4"X '., Q' �F ,♦ A `� � ,tit � l.i n.O � �, t _ � a �- : � r , Golf Course Subject Property •" _ Oro o b4 '. � y 1 ' ♦ ��. � � fS I �� � ��. . 4' n^' �. GENERAL PLAN ZONING a f A ' a LOCATION GENERAL PLAN ZONING CURRENT USE MU-H3/PR (Mixed -Use ON -SITE Horizontal 3/Parks and PC-47 (Newport Beach Tennis Club Recreation Country Club) NORTH RM (Multiple Residential RM (Multiple Residential)] mily residences SOUTH CO-G (General PC-40 (Corporate Plaza Commercial Office West)Offices EAST CO-G OG Office -General Offices WEST PR PC-47 Golf Club 21-119 Tennis and Pickleball Club at Newport Beach Project Amendment (PA2021-260) Planning Commission, March 23, 2023 Page 4 INTRODUCTION Project Setting and Background The subject property is approximately seven (7) acres in size and presently improved with a private tennis club consisting of a 3,725-square-foot clubhouse, 16 tennis courts, 31 interim -use pickle ball courts, and a 125-space surface parking lot. The subject property is located adjacent to the Newport Beach Country Club Golf Course and west of the Corporate Plaza West Planned Community, which consists of several office buildings. The site is also located directly south of the Granville residential community. The 2012 Project Approval (Approved Project) On March 27, 2012, the City Council approved land use entitlements and executed a 10- year term development agreement (DA) to allow the redevelopment of the tennis club site into three distinct components: 1) Tennis Club — Reconstruct the existing 3,725-square-foot tennis clubhouse, and reduce the total number of tennis courts from 24 to seven (7) courts, including one lighted stadium court; 2) Hotel - Construct a 27-room boutique hotel with ancillary uses consisting of a performance therapy center, yoga pavilion, hotel office, common area, and a spa and fitness center; and 3) Residential - Construct five (5) detached single-family residences. Since the project site is located in the Coastal Zone, a coastal development permit (CDP) is required to implement the project. On April 10, 2013, the California Coastal Commission (CCC), which had permitting jurisdiction for Coastal Development Permits (CDP) at the time, issued a notice of intent to issue CDP No. 5-12-160 for the project. However, the CDP process eventually expired without action. The City obtained CDP permitting authority in January of 2017, and on November 20, 2018, the City's Zoning Administrator approved a CDP authorizing the redevelopment of the tennis club consistent with the 2012 entitlements. The CDP is scheduled to expire on November 20, 2022, after receiving two (2), one (1)-year time extensions. The project includes both the 2012 City Council and 2018 Zoning Administrator approvals (commonly referred to as "Approved Project"). 21-120 Tennis and Pickleball Club at Newport Beach Project Amendment (PA2021-260) Planning Commission, March 23, 2023 Page 5 The exhibit below illustrates the proposed site plan for the Approved Project: The Approved Project has not been implemented to date and continues to operate as a private tennis club, with pickleball courts being introduced in 2019, without authorization from the City. First Amendment to 2012 Approved Development Agreement On June 28, 2022, the City Council approved the first amendment to the DA previously approved in 2012, which authorized the extension of the DA by one (1) year. This provided City Staff additional time to process an amendment to the Approved Project, which was submitted by the applicant on November 2, 2021. The extended DA is set to expire on September 23, 2023. 21-121 Tennis and Pickleball Club at Newport Beach Project Amendment (PA2021-260) Planning Commission, March 23, 2023 Page 6 The 2021 Project Amendment Application On November 2, 2021, the applicant submitted an application to amend the Approved Project to include one (1) additional tennis court for a total of eight (8) courts, 14 additional hotel rooms for a total of 41 rooms, additional ancillary hotel uses, and provide three (3) attached condominium units and two (2) detached single-family residences in -lieu of five (5) detached single-family residences (commonly referred to as "Revised Project"). On September 8, 2022, the Planning Commission considered and recommended approval of the Revised Project to the City Council. On September 27, 2022, the City Council considered and failed to approve the Revised Project. Subsequent to the failed motion, the City Council remanded the project to the Planning Commission for further consideration of the pickleball use. On October 11, 2022, City Council adopted a motion to reconsider the Revised Project. On October 25, 2022, the City Council reconsidered and failed to approve the Revised Project. Subsequent to the failed motion, the City Council continued the item to a future meeting after the Planning Commission consideration of development that includes pickleball courts. The 2022 Project Amendment Application Subsequent to City Council's continuance of the Revised Project consideration, the applicant submitted a modification to the revised application to reduce the number of tennis courts and add pickleball courts. The hotel and residential components of the 2021 Amendment application did not change. Project Description The applicant is proposing to maintain four (4) tennis courts (a reduction of three [3]), add 14 pickleball courts, add 14 hotel rooms for a total of 41 rooms with additional ancillary uses, and to allow three (3) of five (5) single-family units to be developed as condominiums (commonly referred to as "Proposed Project"). The project includes noise reducing blankets for the pickleball courts that will be affixed to certain fences to reduce noise reaching the abutting Granville community and project units and hotel. The following legislative approvals are requested or required in order to implement the Proposed Project: 21-122 Tennis and Pickleball Club at Newport Beach Project Amendment (PA2021-260) Planning Commission, March 23, 2023 Page 7 General Plan Amendment (GPA): An amendment to Anomaly No. 46 of Table LU2 of the 2006 Newport Beach General Plan Land Use Element to amend the allowable development limits for the project site; • Local Coastal Program Amendment (LCPA): An amendment to Local Coastal Program Implementation Plan Section 21.26.055.S.2 (Tennis Club of Newport Beach Country Club Planned Community Coastal Zoning District Development Standards) to amend land use regulations to accommodate the Proposed Project at the project site; • Planned Community Development Plan Amendment (PCA): An amendment to Planned Community Development Plan No. 47 (Newport Beach Country Club Planned Community) to amend land use regulations and development standards for the Proposed Project; • Development Agreement (DA): A Development Agreement between the applicant and the City pursuant to Section 15.45 of the Municipal Code, which would provide vested right to develop the Proposed Project while also providing negotiated public benefits and extend the term of Agreement for an additional 10 (ten) years; and Addendum to the 2010 Mitigated Negative Declaration: Pursuant to the California Environmental Quality Act ("CEQA"), the addendum addresses reasonably foreseeable environmental impacts resulting from the proposed development. The amendments to the General Plan, Local Coastal Program, and Planned Community Development Plan are legislative requests and must be approved by the City Council and the California Coastal Commission to become effective. Subsequent project development permit approvals (e.g. coastal development permit, major site development review, tentative tract map, limited term permit, etc.) must be obtained after the legislative approvals are finalized to implement the Proposed Project. The Proposed Project does not increase the overall footprint of the Approved Project. Similar to the Revised Project, the Proposed Project introduces two (2) new loft buildings, which includes a mixture of attached residential condominiums atop of two (2) levels of hotel rooms and are a maximum height of 46 feet. The additional hotel amenities, which includes a hotel office, common area, performance therapy center, and yoga pavilion, are located within the first floor of one (1) of the loft buildings (Bungalow Lofts). The remainder of the hotel rooms remain as bungalow -style buildings as previously envisioned and approved, have a maximum height of 31 feet, and are located throughout the project site. Parking is available for each component of the project, as there are multiple parking lots, street parking, and underground parking available for residents, the tennis and pickleball club, and hotel guests. A total of 131 parking spaces are provided, where 131 spaces are required (Table 4, below). 21-123 Tennis and Pickleball Club at Newport Beach Project Amendment (PA2021-260) Planning Commission, March 23, 2023 Page 8 The Proposed Project features a distinct architectural style, which includes smooth plaster exterior siding, clay -tile roofs, and stone veneer exterior accent finishes that is compatible with the surrounding uses and area. The exhibit below illustrates the site plan for the Proposed Project: w 1 17 HOLE"- 1 HOTEL UNIT _.� + 3 CONE 25INGLF FV.'tY I -WOOS �- THE GOLF CLUB �E� �'- ,� ®• i • 473TAL, .[ENNIS BALL ACf T5 REFRESHMENT ® ® 14TOTAL FICKLE FICHLE v BALL COUNTS�� O r I• ®0 a 11111 ITA IUM10 � PICKLE UACOURTS,*, � �® • a•a '�k5 •TENNIiCLUBHO 6 WA�FITNESS a boo 0 y 1., z® •9 HOWL UNIT 4 •• •• o..• w� -2fctJNB05�♦� •♦#.}. a • 15310TEL UNIT �. • •• *♦ • ,�R*ak The anticipated duration of construction of the Proposed Project is approximately 21 months, projected to break ground in January of 2031 and be completed by October of 2032. The construction will begin with the demolition of a portion of the existing tennis and interim -use pickleball courts, the tennis and pickleball clubhouse buildings, and portion of the parking lot. 24 interim -use pickleball courts are to be maintained for use during construction assuming sufficient parking is provided. The construction of the hotel rooms, tennis and pickleball clubhouse and the stadium courts will follow immediately and will be completed with the construction of the residential units. A Phasing Plan is included as part of the Project Plans and is attached to the Staff Report (Attachment No. PC 6). The property has an existing parking lot with two (2) entrances currently taken from Clubhouse Drive, which has a westerly outlet to East Coast Highway and an easterly outlet to Granville Drive and Newport Center Drive. During the various phases of construction, the easterly entrance to the parking lot will remain available to the public for parking and will provide direct access for the modular office trailer and portable toilets, while the westerly entrance will be for construction access only. A Construction Management Plan is included as an attachment to the Staff Report (Attachment No. PC 4). Table 1 provides a summary of the Approved Project comparing it to the Proposed Project: 21-124 Tennis and Pickleball Club at Newport Beach Project Amendment (PA2021-260) Planning Commission, March 23, 2023 Page 9 Table 1 — Proiect Comparison Use Approved Project Proposed Project Tennis Clubhouse (3,725 sq. ft.) No Change 7 Tennis Courts 4 Tennis Courts (-3*) 14 Pickleball Courts +14* Hotel 27 Hotel Rooms 41 Hotel Rooms (+14) Concierge Center (2,200 sq. ft.) No Change Spa/Fitness Center (7,500 sq. ft.) No Change +4,686 sq. ft. of Ancillary Uses Performance Therapy (+852 sq. ft.), Yoga Pavilion (+633 sq. ft.), Administrative Office (+2,620 sq. ft.), Common Area +581 sq. ft. Residential 5 Detached Single -Family 2 Detached Single -Family Residences Residences 3 Attached Condominiums *There are currently 16 tennis courts and 31 interim -use pickleball courts on -site. The change in courts are in comparison to the 2012 approved project that is entitled through an existing Development Agreement as described on Page 4. DISCUSSION Analysis General Plan Amendment The subject property has a General Plan Land Use designation of Mixed -Use Horizontal 3/Parks and Recreation (MU-H3/PR). The Mixed Use Horizontal 3 designation on the subject site provides for the horizontal intermixing of regional commercial office, hotel, single-family and multi -family residential, and ancillary commercial uses. The PR designation applies to land used or proposed for active public or private recreational use. Permitted uses include parks (both active and passive), golf courses, marina support facilities, aquatic facilities, tennis clubs and courts, private recreation, and similar facilities. The project site is designated as Anomaly No. 46 by the existing Land Use Element, which limits development intensity to 3,725 square feet for a tennis club building and 24 tennis courts at the subject property. Five (5) residential units are also permitted in Anomaly No. 46 in accordance with MU-H3/PR designation. The applicant seeks no changes to the General Plan designations, but rather requests to increase the hotel rooms from 27 to 41 rooms (+14), reduce tennis courts from 7 to 4 courts (-3) and add 14 pickleball courts (+14) as compared to the Approved Project. The 21-125 Tennis and Pickleball Club at Newport Beach Project Amendment (PA2021-260) Planning Commission, March 23, 2023 Page 10 subject property would remain Mixed -Use Horizontal 3/Parks and Recreation (MU- H3/PR). The Proposed Project is consistent with the MU-H3/PR designation as it includes a mix of land uses including single-family residential, attached residential condominiums, recreational tennis and pickleball club facilities, and visitor -serving commercial uses. These uses are permitted as stated above. A complete consistency analysis of each of the applicable General Plan policies is provided in the attached Draft Resolution (Attachment No. PC 1) and included in Table 5-12 of the Land Use and Planning Section of the Mitigated Negative Declaration Addendum. Charter Section 423 (Measure S) Pursuant to City Charter Section 423 and Council Policy A-18, an analysis must be prepared to establish whether a proposed GPA (if approved) requires a vote by the electorate. In its most basic terms, the analysis is a comparison of intensity of the General Plan of a site prior to the amendment and after the amendment. As part of the Approved Project, the City Council authorized the conversion of 17 tennis courts to 27 hotel rooms on a traffic neutral basis. Since the Approved Project did not include a GPA, the conversion was not documented in Anomaly No. 46, however, the Approved Project has been used as the baseline for the analysis as to do otherwise would ignore a previously approved project entitled with a Development Agreement. Voter approval is required for "major" amendments defined as those amendments that significantly increases allowed density or intensity by 40,000 square feet of non-residential floor area or increases traffic by more than 100 peak hour vehicle trips (AM/PM) or increases residential dwelling units by 100 units. These thresholds apply to the total of increases resulting from the amendment itself, plus 80 percent of the increases resulting from other amendments affecting the same neighborhood (defined as a Statistical Area as shown in the General Plan Land Use Element) and adopted within the preceding ten years. In this particular case, the General Plan identifies the intensity of use as 24 tennis courts and a 3,725-square-foot tennis clubhouse in accordance with MU-H3/PR land use category. The site was allocated five (5) units from Land Use Element Policy LU 6.14.8 and there is no increase in residential units with the proposed application. Only 14 hotel rooms are required to be analyzed for Charter Section 423 since the 27 hotel rooms have been previously converted from the 17 tennis courts. The proposed GPA results in an increase of 14,000 square feet (1,000 square feet per hotel room), 26.21 AM trips, and 51.22 PM trips based on the most recent ITE trip rates pursuant to City Council Policy A- 18. The subject property is within Statistical Area L1 and prior amendments within the past 10 years are Vivante Senior Housing and Residences at Newport Center projects. Charter Section 423 requires consideration of 80 percent of prior increases, which results in a cumulative increase of 94 dwelling units, 23 AM trips, and 43 PM trips between both projects. There were no nonresidential gross square footage increases with these two (2) prior amendments. When combined with 80 percent of the prior amendment increases, this results in cumulative increases of 14,000 square feet, 49.21 AM trips, and 94.22 PM 21-126 Tennis and Pickleball Club at Newport Beach Project Amendment (PA2021-260) Planning Commission, March 23, 2023 Page 11 trips. Table 2 below illustrates the calculations and none of the thresholds specified by Charter Section 423 are exceeded, therefore no vote of the electorate is required should the City Council choose to approve the GPA. Table 2 - Charter Section 423 Calculations Unit Floor area Trip rates AM trips PM Trips Tennis and Pickleball Clubhouse N/A N/A N/A Tennis and Pickleball Courts 11 courts N/A 1.67/Court AM 3.88/Court PM 18.37 42.68 Hotel 14 rooms 14,0001 0.56 AM/room 0.61 PM/room 7.84 8.54 Total - Project N/A 14,000 N/A 26.21 51.22 Vote Required Project N/A No N/A No No 80% of Prior Amendments N/A 0 N/A 23 43 Total- Project + Prior Amendments N/A 14,000 N/A 49.21 94.22 Vote Required Project + Prior Amendments N/A No N/A No No Pursuant to Council Policy A-18, each hotel room equals 1,000 square feet, so there is a 14,000 square foot increase. Upon approval of the project, the Proposed Project will be added to L1 Tracking Table as such: Project Name Date Amendment Square Dwelling AM Peak PM Peak Approved Description Footage Unit Hour Trip Hour Trip Change Chan a Change Change Vivante Senior 8/13/2019 Private Institutions (Reduction: 90 26 52 Housing (PI) to Mixed Use 45,028 to Horizontal (MU- 16,000) H3 Residences at 9/28/2021 Regional 0 28 3 2 Newport Center Commercial Office (CO-R) to Planned Community (PC- 61 Tennis and TBD 14 Hotel Rooms, 14,000 0 26.21 51.22 Pickleball 4 Tennis Courts, Club at and 14 Pickleball Newport Courts Beach 100% Totals 14,000 118 55.21 105.2 80% Totals 11,200 94 44.17 84.16 Remaining 28,800 6 55.83 53.14 Capacity Without Vote 21-127 Tennis and Pickleball Club at Newport Beach Project Amendment (PA2021-260) Planning Commission, March 23, 2023 Page 12 Local Coastal Program Amendment The proposed amendment to the Local Coastal Program Implementation Plan (Title 21) is consistent with the Coastal Land Use Plan (CLUP), which designates the property as MU-H/PR (Mixed Use Horizontal/Parks and Recreation). This designation allows horizontally -distributed mix of uses, which may include general or neighborhood commercial, commercial offices, multi -family residential, visitor -servicing and marine - related uses, buildings that vertically integrate residential with commercial uses, and active public or private recreational uses, including parks, golf courses, marina support facilities, aquatic facilities, tennis clubs and courts, private recreation, and similar facilities. The Proposed Project is a request to increase existing uses which have been previously permitted. The project includes a mixture of uses which include a tennis and pickleball club consisting of a tennis and pickleball clubhouse, four (4) tennis courts and 14 pickleball courts, a 41-unit hotel development and ancillary uses, and five (5) residential units. All of these uses are intended to provide an updated visitor -serving and recreational facility to serve the residents and visitors of the City. Additionally, the amendment is consistent with applicable land use policies of the CLUP, as provided in the attached Draft Resolution. Therefore, an amendment to the CLUP is not necessary. Title 21 includes specific development standards for development of the project site specifically for the Approved Project. The applicant's request to modify and expand the future project requires an amendment to Title 21 to revise the development standards listed in Section 21.26.055.S, The following amendments are proposed: 1. The amendment modifies the density and intensity limit for the number of tennis courts from seven (7) to four (4) courts and adds 14 pickleball courts. The addition of the pickleball courts court increases the minimum required parking from 28 spaces to 72 spaces (4 spaces per court). See Table 4 below for amended parking requirements. There is no change to the 3,725-square-foot limit for the tennis and pickleball clubhouse. 2. The number of residential units remains unchanged. However, the amendment converts three (3) of the five (5) single-family residences to attached residential condominium units. Therefore, the amendment revises the density and intensity limit for the residential use from five (5) to two (2) single-family residences and removes previous development standards for three (3) single-family residences previously referred to as Villas C, D, and E. 3. The amendment includes new development standards for attached residential condominiums, which have a density limit of three (3) units and maximum gross floor area of 15,035 square feet. The maximum height allowed for the condominium buildings is 50 feet. The buildings are required to be set back five (5) feet from any property line. The remaining single-family residences require a minimum of two (2) enclosed parking spaces and one (1) guest parking space per unit, while the 21-128 Tennis and Pickleball Club at Newport Beach Project Amendment (PA2021-260) Planning Commission, March 23, 2023 Page 13 proposed attached condominiums require a minimum of three (3) enclosed parking spaces and one guest parking space per unit. 4. The amendment revises the density and intensity limits for the hotel from 27 to 41 short-term guest rental rooms. Additionally, the maximum allowable gross floor area increases from 28,300 to 47,484 square feet, and square footage for ancillary hotel uses are included. A minimum of one (1) space per hotel unit is required. Table 4: Reauired and Provided Parkina Use Parking Rate Required Provided Tennis & Pickleball Club 4 per court 72 spaces 72 spaces Single -Family Residences 2 per unit enclosed 1 per unit guest 4 enclosed spaces 2 guest spaces 4 enclosed spaces 2 guest spaces Attached Condominiums 3 per unit enclosed 1 per unit guest 9 enclosed spaces 3 guest spaces 9 enclosed spaces 3 guest spaces Hotel 1 per unit 41 spaces 41 spaces Total N/A 131 spaces 131 spaces Planned Community Development Plan Amendment In 2012, the City Council adopted NBCC Planned Community Development Plan (PC-47) for the subject site as part of the Approved Project that also includes the adjacent Newport Beach Country Club Golf Course site. All proposed changes as part of the Proposed Project are limited to the Tennis and Pickleball Club property and do not apply to the Golf Club. The Proposed Project is consistent with the intent and purpose of PC-47 in that the Tennis and Pickleball club, hotel, and residential uses and their development standards have already been allowed and is in place on the tennis club site. The 31 existing pickleball courts are of interim use and have been determined to be ancillary to the tennis club. The proposed changes are minor adjustments to the building height, setbacks, and parking standards in order to accommodate the Proposed Project. Additionally, PC-47 provides guidelines for architectural design to include coordinated and cohesive architecture which exhibits quality that is keeping with the surrounding area in Newport Center. The Proposed Project includes additional hotel rooms and two (2) attached residential condominium loft buildings. The proposed additions are designed to be compatible with the approved architectural design of the Approved Project. PC-47 permits structures to be a maximum of 50 feet in height. The Proposed Project includes two (2) attached residential condominium loft buildings and additional hotel rooms to be at a maximum of 46 feet high and comply with the height limit (see Figure 1, below). Similar to the LCPA, the required parking is proposed to be amended based on the additional courts, hotel rooms, and conversion of 3 single-family residences to condominiums (see Table 4, above). 21-129 Tennis and Pickleball Club at Newport Beach Project Amendment (PA2021-260) Planning Commission, March 23, 2023 Page 14 Figure 1: Rendering of Architectural Style (Pictured: Attached Condominium and Hotel Loft Building) The Proposed Project promotes additional functionality between residential and hotel components, as residential condominiums are attached to hotel units in two (2) separate loft buildings. Underground parking is provided in the loft buildings, with additional street parking and parking lots to serve hotel and tennis and pickleball club guests. Each of the two (2) single-family residences provide a two (2)-car garage to serve its residents. The project has been designed to include a surplus of 40 spaces beyond what is required. Table 4 above shows the required and provided parking for the proposed project. Development Agreement On March 27, 2012, the City Council approved a Development Agreement between the City and the Applicant for the Approved Project. The DA was executed and recorded, on January 29, 2014, with a 10-year term (commonly referred to as "Existing Agreement"). On July 12, 2022, the City Council adopted Ordinance No. 2022-16, approving First Amendment to DA2008-001 to extend the term of the Existing Agreement by one (1) year. The Existing Agreement will expire on September 23, 2023. With the Project including an amended scope of work, a new Development Agreement (DA) is required since it includes new non-residential development in Statistical Area L1 (Newport Center/Fashion Island). The Existing Agreement provides vested rights to develop the Proposed Project subject to the term and the City negotiated the following public benefit fees of ninety-three 21-130 Tennis and Pickleball Club at Newport Beach Project Amendment (PA2021-260) Planning Commission, March 23, 2023 Page 15 thousand dollars ($93,000) per each residential dwelling unit and ten dollars ($10) per square foot of construction for the tennis and pickleball clubhouse (see Table 5 below). These fees are subject to annual adjustments, based on the CPI Index. Table 5: Proiected Public Benefit Fees (Subiect to a future CPI Adiustment) Use Multiplier Fee Rate Total Residential 5 units $93,000 per unit $465,000 Tennis and Pickleball Clubhouse 3,725 square feet $10 per square foot $37,250 Grand Total $502,250 In accordance with Section 15.45.020.A.2.c (Development Agreement Required) of the NBMC, a DA is required as the Proposed Project. The applicant requests a 10-year term of agreement pursuant to Section 15.45.070 (Amendment/Cancellation). The DA provides assurance that the applicant may proceed with the Proposed Project in accordance with existing policies, rules and regulations, and conditions of approval. Additionally, the DA helps the applicant avoid a waste of resources and escalated costs of the Proposed Project while encouraging a commitment to private participation in comprehensive planning. In addition to the 10-year term, the DA (Exhibit "E" of the Draft Resolution) specifies the updated permitted uses, density and intensity, and maximum height and size of proposed buildings, consistent with the Proposed Project. The DA includes all mandatory elements, including public benefits that are appropriate to support conveying the vested development rights consistent with the City's General Plan, NBMC, and Government Code Sections 65864 et seq. No changes to the public benefit fees shown above are proposed. Environmental Review On March 27, 2012, the Newport Beach City Council approved a Mitigated Negative Declaration and its Errata to Mitigated Negative Declaration (together referred to as "MND") that addressed the potential environmental effects associated with the Approved Project. The MND was prepared in compliance with the California Environmental Quality Act (CEQA), the State CEQA Guidelines, and City Council Policy K-3. Pursuant to Section 21166 of the California Public Resources Code and Section 15162 of the CEQA Guidelines, when a negative declaration adopted for a project, no subsequent negative declaration is required unless the lead agency determines, on the basis of substantial evidence in the light of the whole record, one or more of the following: 1. Substantial changes are proposed in the project which will require major revisions of the previous negative declaration due to the involvement of new significant 21-131 Tennis and Pickleball Club at Newport Beach Project Amendment (PA2021-260) Planning Commission, March 23, 2023 Page 16 environmental effects or a substantial increase in the severity of previously identified significant effects; 2. Substantial changes occur with respect to the circumstances under which the project is undertaken which will require major revisions of the previous negative declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; or 3. New information of substantial importance, which was not known and could not have been known with the exercise of reasonable diligence at the time the negative declaration was adopted as complete, shows any of the following: a. The project will have one or more significant effects not discussed in the previous negative declaration. b. Significant effects previously examined will be substantially more severe than shown in the adopted negative declaration. c. Mitigation measures or alternatives previously found not to be feasible would in fact be feasible and would substantially reduce one (1) or more significant effects of the project, but the project proponents decline to adopt the mitigation measure or alternative; or d. Mitigation measures or alternatives which are considerably different from those analyzed in the previous negative declaration would substantially reduce one or more significant effects on the environment, but the project proponents decline to adopt the mitigation measure or alternative. On the basis of the earlier MND and entire environmental review record including the Addendum, which has been updated to include the latest proposal with pickleball courts, the Proposed Project will not result in any new significant impacts that were not previously analyzed in the MND. The Addendum confirms and provides substantial evidence that the potential impacts associated with the Proposed Project would either be the same or less than those described in the MND, or as mitigated by applicable mitigation measures and standard conditions of approval in the MND. In addition, there are no substantial changes to the circumstances under which the Proposed Project would be undertaken that would result in new or more severe environmental impacts than previously addressed in either the MND, nor has any new information regarding the potential for new or more severe significant environmental impacts been identified. Therefore, in accordance with Section 15164 of the CEQA Guidelines, an addendum to the previously adopted MND is the appropriate environmental document for the Proposed Project. In taking action to approve any of the requested applications for the Proposed Project, the data presented in the MND, as augmented by the Addendum for this Proposed Project, are considered as part of the record. 21-132 Tennis and Pickleball Club at Newport Beach Project Amendment (PA2021-260) Planning Commission, March 23, 2023 Page 17 The City contracted with an environmental consultant, Chambers Group, to prepare the Addendum. The entire Addendum and its technical appendixes are available online at the City's website at www.newportbeachca.gov/cega. Summary In summary, staff believes the findings for the project approval can be made. The applicant proposed a GPA to increase the number of hotel rooms, reduce the number of tennis courts, and add pickleball courts. According to the applicant, the request is necessary to provide a viable hotel development. The applicant has added pickleball courts in response to the recreational needs of the community, as evident by the public testimony during the public hearings for the Revised Project. The Proposed Project is consistent with the General Plan's MU-H3/PR designation as it still includes and maintains a mix of land uses including single-family residential, attached residential condominiums, recreational tennis and pickleball club facilities, and visitor -serving commercial uses. The proposed GPA would not require a voter approval pursuant to Charter Section 423 analysis. Due to the lack of environmental impacts and apparent compatibility with the surrounding uses, staff does not object to the GPA request. The Proposed Project is also consistent with Title 21. The CLUP designates the property as MU-H/PR (Mixed Use Horizontal/Parks and Recreation). This designation allows horizontally -distributed mix of uses, which includes multi -family residential, visitor - servicing uses, and recreational clubs. The Proposed Project is within the maximum density/intensity limit allowed per MU-H designation. The amendment to the Planned Community Development Plan is consistent with the intent and purpose of PC-47 in that the tennis club, which currently includes ancillary pickleball courts, hotel, and residential uses and their development standards have already been allowed and in place on the tennis club site. The proposed changes to the building height, setbacks, and parking standards in order to accommodate the Proposed Project are within the development standards in place for the Approved Project. As previously discussed, the Proposed Project requires an amendment to Title 21. This amendment requires the consideration of California Coastal Commission. As a result, the Proposed Project only becomes effective upon the approval by Coastal Commission. Upon such approval, additional discretionary permits (e.g. coastal Development Permit, major site development review, tentative tract map, limited term permit, etc.) must be obtained to implement the Proposed Project. 21-133 Tennis and Pickleball Club at Newport Beach Project Amendment (PA2021-260) Planning Commission, March 23, 2023 Page 18 Alternatives The Planning Commission may require or suggest specific changes that are necessary to alleviate any areas of concern. If the requested changes are substantial, staff will return with a revised resolution incorporating new findings. 2. If the Planning Commission chooses to deny the Proposed Project, the applicant would retain the vested right to build the Approved Project until the termination date of the previous DA (September 23, 2023). Since the current General Plan, Local Coastal Program Implementation Plan, and Planned Community Development Plan allows for the Approved Project, the applicant would be required to obtain a new development agreement (per NBMC Section 20.45.020), as well as discretionary approvals (e.g. site development review permit, tentative tract map, limited term permit) in order to implement the Approved Project. Public Notice Notice of this hearing was published in the Daily Pilot, mailed to all owners of property within 300 feet of the boundaries of the site (excluding intervening rights -of -way and waterways) including the applicant and posted on the subject property at least 10 days before the scheduled meeting, consistent with the provisions of the Municipal Code. Additionally, the item appeared on the agenda for this meeting, which was posted at City Hall and on the City website. Prepared by: Senior Planner ATTACHMENTS Submitted by: Jim Campbell Deputy Community Development Director PC 1 Draft Resolution with Findings and Conditions PC 2 Project Description PC 3 LSA's Traffic and Parking Analysis Update PC 4 MurowDC's Construction Management Plan PC 5 Fiscal and Economic Impacts Analysis PC 6 Project Plans :AUsers\PLN\Shared\PA's\PAs - 2021\PA2021-260\PC\PC-Staff Report.docx01/12/18 21-134 Attachment G Planning Commission Minutes, Dated March 23, 2023 21-135 NEWPORT BEACH PLANNING COMMISSION MINUTES CITY COUNCIL CHAMBERS - 100 CIVIC CENTER DRIVE THURSDAY, MARCH 23, 2023 REGULAR MEETING - 6:30 P.M. I. CALL TO ORDER - 6:30 p.m. II. PLEDGE OF ALLEGIANCE - Commissioner Langford III. ROLL CALL PRESENT: Chair Curtis Ellmore, Vice Chair Mark Rosene, Secretary Sarah Klaustermeier, Commissioner Jonathan Langford, Commissioner Lee Lowrey, Commissioner Tristan Harris ABSENT: Commissioner Brady Barto Staff Present: Deputy Community Development Director Jim Campbell, Assistant City Attorney Yolanda Summerhill, Senior Planner David Lee, and Administrative Assistant Clarivel Rodriguez IV. PUBLIC COMMENTS None V. REQUEST FOR CONTINUANCES None VI. CONSENT ITEMS ITEM NO. 1 MINUTES OF MARCH 9, 2023 Recommended Action: Approve and file Motion made by Secretary Klaustermeier and seconded by Commissioner Langford to approve the minutes of the March 9, 2023 meeting with Mr. Mosher's edits. AYES: Ellmore, Klaustermeier, Langford, Lowrey, and Rosene NOES: None ABSTAIN: Harris ABSENT: Barto VII. PUBLIC HEARING ITEMS ITEM NO. 2 TENNIS AND PICKLEBALL CLUB AT NEWPORT BEACH PROJECT AMENDMENT (PA2021-260) Site Location: 1602 East Coast Highway Summary: A legislative amendment to the 2012-approved Tennis Club at Newport Beach project to: 1) reduce the number of future tennis courts from seven (7) to four (4) courts and add 14 pickleball courts, 2) increase the number of future hotel rooms from 27 to 41 rooms, 3) increase the gross floor area of the ancillary hotel uses by 4,686 square feet, and 4) provide three (3) attached condominium units and two (2) detached single-family residences in -lieu of five (5) detached single-family residences. The proposed changes to the 2012-approved project requires the considerations of the following: Page 1 of 4 21-136 Planning Commission Regular Meeting Agenda March 23, 2023 • General Plan Amendment: An amendment to Anomaly No. 46 of Table LU2 of the 2006 Newport Beach General Plan Land Use Element to amend the allowable development limits for the tennis club site; • Local Coastal Program Amendment: An amendment to Local Coastal Program Implementation Plan Section 21.26.055.S.2 (Newport Beach Country Club Planned Community Coastal Zoning District Development Standards) to amend land use regulations for the tennis club site; • Planned Community Development Plan Amendment: An amendment to Planned Community Development Plan No. 47 (Newport Beach Country Club Planned Community) to amend land use regulations and development standards on the tennis club site; • Development Agreement: A Development Agreement between the applicant and the City pursuant to Section 15.45 of the Municipal Code, which would provide vested right to develop the proposed project while also providing negotiated public benefits and extend the term of Agreement for an additional 10 (ten) years; and • Addendum to the 2010 Mitigated Negative Declaration: Pursuant to the California Environmental Quality Act ("CEQA"), the addendum addresses reasonably foreseeable environmental impacts resulting from the proposed development. Recommended Action: 1. Conduct a public hearing; 2. Find that the Proposed Project will not result in any new significant impacts that were not previously analyzed in the adopted Mitigated Negative Declaration No. ND2010-008 (SCH 2010091052) for the Approved Project, and the addendum has been prepared to address reasonably foreseeable environmental impacts resulting from the Proposed Project; and 3. Adopt Resolution PC2023-014, recommending the City Council approval of PA2021-260, which includes adoption of a Mitigated Negative Declaration Addendum, and approval of a General Plan Amendment, Local Coastal Program Amendment, Planned Community Development Plan Amendment, and Development Agreement for The Tennis and Pickleball Club at Newport Beach Project located at 1602 East Coast Highway. Commissioner Langford recused himself and left the chambers due to the location being owned in part by his employer. Deputy Community Development Director Campbell noted the project was presented to the Planning Commission in September 2022, and after City Council review, it was remanded back to the Planning Commission for lacking pickleball in the project. He indicated that the applicant has retooled the project to include pickleball, which is the primary difference from the presentation in September 2022. Senior Planner Lee used a presentation to review the project amendment for The Tennis and Pickleball Club at Newport Beach, project location, land use, project background, proposed amendment, site plan, comparison of the 2012 approved project and current proposed project, project entitlements, Charter 423 Analysis, CEQA review, findings, L1 tracking table correction to the PM peak hour trip change, and recommended action. In response to Vice Chair Rosene's question, Senior Planner Lee relayed that the applicant would need a site development permit, tract map amendment, coastal development permit, and limited term permit after the legislative entitlements are granted. Deputy Community Development Director Campbell noted a development agreement in place, the would be subject to the building code at the time of permit issuance, and changes in the General Plan or zoning code would not be applicable because the development agreement will supersede. In response to Commissioner Harris' questions, staff confirmed that the current development agreement ends in September 2023, and Senior Planner Lee confirmed that the proposal is a new development agreement. In response Chair Ellmore's questions, Deputy Community Development Director Campbell confirmed that the development agreement was negotiated and approved in 2012 as well as the Public Benefit Fee, the existing Page 2 of 4 21-137 Planning Commission Regular Meeting Agenda March 23, 2023 agreement has a CPI escalator that adjusts yearly on January 1, and the CPI escalator from 2012 to present time is not reflected in the draft of the new development agreement. Vice Chair Ellmore opened the public hearing. Vice Chair Rosene, Commissioner Harris, and Vice Chair Rosene disclosed conservations with the operator of The Tennis Club. Secretary Klaustermeier and Chair Ellmore reported no exparte communications. Jonathan Bailey, applicant, utilized a presentation to review the NBCC Bungalows and Lofts — Plan B Amendment, revised master site plan, golf course view rendering, close up elevation and first floor plan of the Bungalow Loft building, close up elevation and first floor plan of the Fairway Loft building, site plan of the spa, fitness center, tennis clubhouse, and pool, pool attendant area, fitness desk area, locker room areas, new court configuration site plan, rendering of the sound mitigation measures, Plan B Amendment, and to ask the Planning Commission for project approval. Commissioner Harris thanked the applicant for the clear presentation and, in response to his questions, the applicant indicated that the condos and villas will be for sale, a parking agreement easement is being negotiated for 30 additional spots, and groundbreaking will begin in 2032. Brett Feuerstein and Ryan Chase, co -owners with Mr. O'Hill, noted they do not believe Mr. O'Hill has the legal authority to submit the application without their consent and are in arbitration regarding the matter. Mr. Feuerstein also disclosed a lease presented to Mr. O'Hill to keep the pickleball and tennis court as is, and confirmed they have no plans to add apartments. Jim Mosher thought that the new location of the pickleball courts is a positive development. He relayed the uncertainty of whether the ancillary uses such as the clubhouse and fitness center were part of the tennis club or hotel component. He suggested that staffs analysis of Charter 423 was incorrect, explained the project history and stated that the voters approved the clubhouse and 24 tennis courts in 2006, and that the property under the MU-H3 land use for the General Plan. Mr. Mosher stated that the golf club expansion, adjacent to the tennis club, included a General Plan Amendment, where the tennis club site did not. Mr. Mosher stated that since there was no previous General Plan Amendment, the previous approval of the 27 hotel rooms were not tracked towards Greenlight. Mr. Mosher stated that the project could include 40 hotel rooms without a vote, but that 41 rooms is one room over the limit. Deputy Community Development Director Campbell believed that staff completed the Greenlight analysis correctly and no vote of the electorate is required if the project is approved by the City Council. Chair Ellmore closed the public hearing. Commissioner Harris expressed concern for the timeline and suggested the Council review the development agreement for potential impacts from the time spanned until groundbreaking. Assistant City Attorney Summerhill noted that the last three development agreements have been tenured and the effective date is determined by litigation, a referendum, or the coastal development permit approval. Commissioner Lowrey recognized a clear pickleball count in the new development agreement, assumed the pickleball membership is satisfied no building will take place until 2032, based on low membership attendance at the meeting, thought that the new development agreement is an improvement, and expressed his support. Chair Ellmore concurred with Commissioner Lowrey and recommended the project for approval, but that the development agreement reflect a CPI increase up until the extension when it is redrafted in 2023 and then use the new net number to then CPI again on a go -forward basis to compound the development agreement from the approximately $500,000 from 2012 to current dollars. In response to Commissioner Lowrey's question, Deputy Community Development Director Campbell stated that fees are effective from the development agreement date, escalate every January 1, and pay the amount that Page 3 of 4 21-138 Planning Commission Regular Meeting Agenda March 23, 2023 matches at the time of pulling the project building permits up through the term of the agreement. He recommended that the original agreement escalator continue in the new development agreement. In response to Secretary Klaustermeier's question, Deputy Community Development Director Campbell clarified that the Public Benefit Fee is in addition to all other applicable fees. Secretary Klaustermeier supported the recommendation. Motion made by Vice Chair Rosene and seconded by Commissioner Lowrey to approve the item with the additional recommendation to adjust the development impact fees of the new development agreement to include CPI adjustments from the previous development agreement effective date that was approved in 2012. AYES: Ellmore, Harris, Klaustermeier, Lowrey, and Rosene NOES: None RECUSED: Langford ABSENT: Barto Vill. STAFF AND COMMISSIONER ITEMS ITEM NO. 3 MOTION FOR RECONSIDERATION None ITEM NO.4 REPORT BY THE COMMUNITY DEVELOPMENT DIRECTOR OR REQUEST FOR MATTERS WHICH A PLANNING COMMISSION MEMBER WOULD LIKE PLACED ON A FUTURE AGENDA Deputy Community Development Director Campbell announced the next Planning Commission meeting on April 6 to review noise related amendments related to implementation of the Housing Element implementation and April 20 with four items scheduled. ITEM NO. 5 REQUESTS FOR EXCUSED ABSENCES Chair Ellmore requested an excused absence at the next meeting on April 6. IX. ADJOURNMENT The meeting adjourned at 7:07 p.m. The agenda for the March 23, 2023, Planning Commission meeting was posted on Thursday, March 16, 2023, at 05:19 p.m. in the Chambers binder, on the digital display board located inside the vestibule of the Council Chambers at 100 Civic Center Drive, and on the City's website on Thursday, March 16, 2023, at 05:04 p.m. Curtis Ellmore, Chair Sarah Klaustermeier, Secretary Page 4 of 4 21-139 Attachment H Planning Commission Resolution No. PC2023-014 21-140 DocuSign Envelope ID: 5A6A4607-2A90-4FCD-8C3C-883F376CB71F RESOLUTION NO. PC2023-014 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH, CALIFORNIA RECOMMENDING CITY COUNCIL APPROVAL OF AN ADDENDUM TO MITIGATED NEGATIVE DECLARATION NO. ND2010-008, GENERAL PLAN AMENDMENT, LOCAL COASTAL PROGRAM AMENDMENT, PLANNED COMMUNITY DEVELOPMENT PLAN AMENDMENT, AND DEVELOPMENT AGREEMENT FOR THE TENNIS CLUB AT NEWPORT BEACH LOCATED AT 1602 EAST COAST HIGHWAY (PA2021-260) THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. An application was filed by Golf Realty Fund, Managing Owner ("Applicant"), with respect to property located at 1602 East Coast Highway, and legally described as Parcels A, B, C, and D of Parcel Map No. 2016-151 ("Tennis Club Site" or "Property"). 2. On January 24, 2012, the City Council authorized the redevelopment of the Property to include a reconstruction of the 3,725-square-foot tennis clubhouse, a reduction of tennis courts from 24 to seven (7) courts, and a construction of 27-room boutique hotel with 9,700 square feet of ancillary uses, and five (5) single-family residential units. On November 20, 2018, the Zoning Administrator approved Coastal Development Permit No. CD2017-039, authorizing the redevelopment of the Property consistent with the 2012 approval ("Approved Project"). 3. On November 2, 2021, an application was filed by the Applicant with respect to the Tennis Club Site proposing an amendment to the Approved Project to include one (1) additional tennis court for a total of eight (8) courts, 14 additional hotel rooms for a total of 41 rooms, additional ancillary hotel uses, and three (3) attached condominium units and two (2) detached single-family residences in -lieu of five (5) detached single-family residences ("Revised Project"). 4. On September 8, 2022, the Planning Commission conducted a public hearing on the Revised Project, in the City Council Chambers, located at 100 Civic Center Drive, Newport Beach, California. A notice of time, place and purpose of the hearing was given in accordance with California Government Code Section 54950 et seq. ("Ralph M. Brown Act"), California Government Code Section 65867, Section 15.45.050 (Public Hearing -Notice) of the Newport Beach Municipal Code ("NBMC") and Chapters 20.62 (Public Hearings) and 21.62 (Public Hearings) of the NBMC. Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this hearing. At the conclusion of the public hearing, the Planning Commission voted 5-0 (5 ayes, 1 absent, and 1 recused) to adopt Resolution No. PC2022-022, recommending the City Council approve the Revised Project. 21-141 DocuSign Envelope ID: 5A6A4607-2A90-4FCD-8C3C-883F376CB71 F Planning Commission Resolution No. PC2023-014 Paae 2 of 21 5. On September 27, 2022, the City Council conducted a public hearing on the Revised Project, in the City Council Chambers, located at 100 Civic Center Drive, Newport Beach, California. A notice of time, place and purpose of the hearing was given in accordance with the ("Ralph M. Brown Act"), California Government Code Section 65867, Section 15.45.050 (Public Hearing -Notice) of the NBMC and Chapters 20.62 (Public Hearings) and 21.62 (Public Hearings) of the NBMC. Evidence, both written and oral, was presented to, and considered by, the City Council at this hearing. The main topics discussed by the City Council included the interim use of existing pickleball courts, the process for a future conversion of tennis courts to pickleball courts, and potential impacts that may be created by the Revised Project. At the conclusion of the public hearing, the City Council failed to approve the Revised Project (2 ayes, 5 nays). Subsequent to the failed motion, the City Council remanded the Revised Project (6 ayes, 1 nay) to the Planning Commission for further consideration of the pickleball use. 6. On October 11, 2022, City Council adopted a motion to reconsider the Revised Project (4 ayes, 3 nays). 7. On October 25, 2022, the City Council conducted a public hearing to reconsider the Revised Project, in the City Council Chambers, located at 100 Civic Center Drive, Newport Beach, California. A notice of time, place and purpose of the hearing was given in accordance with the Ralph M. Brown Act, California Government Code Section 65867, and Section 15.45.050 (Public Hearing -Notice) of the NBMC and Chapters 20.62 (Public Hearings) and 21.62 (Public Hearings) of the NBMC. Evidence, both written and oral, was presented to, and considered by, the City Council at this hearing. The main topics discussed by the City Council included the potential for pickleball courts and at the conclusion of the public hearing, the City Council failed to approve the Revised Project (2 ayes, 5 nays). Subsequent to the first motion, the City Council adopted a second motion (5 ayes, 2 nays) to continue the item to a future meeting after the Planning Commission consideration of development that includes pickleball courts. 8. On December 6, 2022, the Applicant submitted a revised application which includes pickleball courts. The Applicant is requesting land use approvals to amend the Approved Project which consists of the following: a. Decrease the number of future tennis courts from seven (7) to four (4) tennis courts and add 14 pickleball courts; b. Increase the number of future hotel rooms from 27 to 41 rooms; c. Increase the gross floor area of ancillary hotel uses by 4,686 square feet, for a total of 14,386 square feet; d. Provide three (3) attached condominium units and two (2) single family residences in -lieu of five (5) single-family residences; and e. A Development Agreement which includes the aforementioned changes to the Approved Project for a term of 10 years ("Project"). The following approvals are requested or required in order to consider the Project: 21-142 DocuSign Envelope ID: 5A6A4607-2A90-4FCD-8C3C-883F376CB71 F Planning Commission Resolution No. PC2023-014 Paae 3 of 21 a. General Plan Amendment ("GPA") — An amendment to Anomaly No. 46 of Table LU2 of the 2006 Newport Beach General Plan Land Use Element to document the conversion of 17 tennis courts to 27 hotel rooms and assignment of five residential units authorized by City Council Resolution No. 2012-10, and amend the following: 1. The addition of 14 hotel rooms for a total of 41 rooms; 2. The reduction of three (3) tennis courts for a total of four (4) tennis courts; and 3. The addition of 14 pickleball courts b. Local Coastal Program Amendment ("LCPA") — An amendment to Section 21.26.055.S.2 (Planned Community Coastal Zoning District Development Standards, Newport Beach Country Club (PC-47, Tennis Club) of the NBMC to modify the permitted uses and development standards allowed on the Property; c. Planned Community Development Plan Amendment ("PCDP Amendment") — An amendment to Planned Community Development Plan No. 47 (Newport Beach Country Club Planned Community) to amend land use regulations and development standards on the Property; d. Development Agreement ("DA") — A Development Agreement between the Applicant and the City, pursuant to Sections 15.45.020(A)(2)(c) (Buildings and Construction, Development Agreements Required, Development Agreement Required) and 15.45.070 (Buildings and Constructions, Development Agreements, Amendment/Cancellation) of the NBMC, which would provide vested right to develop the Project for a term of ten (10) years and provide negotiated public benefits to the City; and e. Addendum to previously adopted Mitigated Negative Declaration No. ND-2010- 008 (SCH2010091052) ("Addendum") — Pursuant to the California Environmental Quality Act ("CEQA"), the Addendum addresses reasonably foreseeable environmental impacts resulting from the Project. 9. The Property is designated Mixed -Use Horizontal 3/Parks and Recreation (MU-H3/PR) by the General Plan Land Use Element and is located within the Newport Beach Country Club Planned Community (PC-47) Zoning District. 10. The Property is located within the coastal zone. The Coastal Land Use Plan category is Mixed -Use Horizontal/Parks and Recreation (MU-H/PR) and it is located within the Newport Beach Country Club Planned Community (PC-47) Coastal Zone District. 11. A public hearing was held on March 23, 2023 in the City Council Chambers, located at 100 Civic Center Drive, Newport Beach, California. A notice of time, place and purpose of the hearing was given in accordance with the Ralph M. Brown Act, California Government Code Section 65867, Chapters 20.62 (Public Hearings) and 21.62 (Public Hearings) of the NBMC, and Section 15.45.050 (Public Hearing -Notice) of the NBMC. Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this hearing. SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. On March 27, 2012, the Newport Beach City Council approved Mitigated Negative Declaration No. ND2010-008 (SCH 2O10091052) and an Errata to Mitigated Negative 21-143 DocuSign Envelope ID: 5A6A4607-2A90-4FCD-8C3C-883F376CB71 F Planning Commission Resolution No. PC2023-014 Paae 4 of 21 Declaration No. ND2010-008 ("MND") that addressed the potential environmental effects associated with the Approved Project. The MND was prepared in compliance with the California Environmental Quality Act as set forth in Section 21000 et seq. of the California Public Resources Code ("CEQA"), the State CEQA Guidelines set forth in Title 14, Division 6, Chapter 3 of the California Code of Regulations, ("CEQA Guidelines"), and City Council Policy K-3. 2. Pursuant to Section 21166 of the California Public Resources Code and Section 15162 of the CEQA Guidelines, when a negative declaration adopted for a project, no subsequent negative declaration is required unless the lead agency determines, on the basis of substantial evidence in the light of the whole record, one or more of the following: a. Substantial changes are proposed in the project which will require major revisions of the previous negative declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; b. Substantial changes occur with respect to the circumstances under which the project is undertaken which will require major revisions of the previous negative declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; or c. New information of substantial importance, which was not known and could not have been known with the exercise of reasonable diligence at the time the negative declaration was adopted as complete, shows any of the following: i. The project will have one (1) or more significant effects not discussed in the previous negative declaration. ii. Significant effects previously examined will be substantially more severe than shown in the adopted negative declaration. iii. Mitigation measures or alternatives previously found not to be feasible would in fact be feasible and would substantially reduce one or more significant effects of the project, but the project proponents decline to adopt the mitigation measure or alternative; or iv. Mitigation measures or alternatives which are considerably different from those analyzed in the previous negative declaration would substantially reduce one or more significant effects on the environment, but the project proponents decline to adopt the mitigation measure or alternative. 3. Although the Project necessitates an amendment to the General Plan to increase the number of hotel rooms, reduce the number of tennis courts and reconfigure several of the remaining tennis courts to pickleball courts, there are no proposed changes to the land uses permitted per the General Plan land use designation. Additionally, based on the changes associated with the Project, there are no conditions that would require the preparation of a subsequent or supplemental MND. As a result, an Addendum to the 21-144 DocuSign Envelope ID: 5A6A4607-2A90-4FCD-8C3C-883F376CB71 F Planning Commission Resolution No. PC2023-014 Paae 5 of 21 MND ("Addendum") was prepared pursuant to Section 15162 (Subsequent EIRs and Negative Declarations) and 15164 (Addendum to an EIR or Negative Declaration) of the CEQA Guidelines. 4. The following environmental topics were analyzed for the Project: Aesthetics, Air Quality, Biological Resources, Cultural Resources, Energy, Geology and Soils, Greenhouse Gas Emissions, Hazards and Hazardous Materials, Hydrology and Water Quality, Land Use and Planning, Noise, Population and Housing, Public Services, Recreation, Transportation, Utilities and Service Systems, and Wildfire. The Addendum includes analysis of new topics that were not included in the previous MND; specifically, it includes a new energy section and a new wildfire section. These additional analyses are appropriate for inclusion in the Addendum, but none result in new or increased significant impacts that would require preparation of a subsequent MND pursuant to Section 15162 of the CEQA Guidelines. 5. On the basis of the MND and entire environmental review record, the reduction of three (3) tennis courts and addition of 14 pickleball courts, 14 hotel rooms, and 4,686 square feet of ancillary hotel uses, and conversion of three single-family residences to condominium units will not result in any new significant impacts that were not previously analyzed in the MND. The Addendum confirms and provides substantial evidence that the potential impacts associated with this Project would either be the same or less than those described in the MND, or as mitigated by applicable mitigation measures in the MND. In addition, there are no substantial changes to the circumstances under which the Project would be undertaken that would result in new or more severe environmental impacts than previously addressed in either the MND, nor has any new information regarding the potential for new or more severe significant environmental impacts been identified. Therefore, in accordance with Section 15164 of the CEQA Guidelines, an Addendum to the previously adopted MND is the appropriate environmental document for the Project. In taking action to approve any of the requested applications for the Project, the data presented in the MND, as augmented by the Addendum for this Project, are considered as part of the record. 6. The Addendum to the MND, is hereby recommended for adoption by the City Council given its analysis and conclusions. The Addendum to the MND and related referenced documentation, constitute the administrative record upon which this decision was based, are on file with the Planning Division, City Hall, 100 Civic Center Drive, Newport Beach, California. 7. The Planning Commission finds that judicial challenges to the City's CEQA determinations and approvals of land use projects are costly and time consuming. In addition, project opponents often seek an award of attorneys' fees in such challenges. As project applicants are the primary beneficiaries of such approvals, it is appropriate that such applicants should bear the expense of defending against any such judicial challenge, and bear the responsibility for any costs, attorneys' fees, and damages which may be awarded to a successful challenger. SECTION 3. REQUIRED FINDINGS. 21-145 DocuSign Envelope ID: 5A6A4607-2A90-4FCD-8C3C-883F376CB71 F Planning Commission Resolution No. PC2023-014 Paae 6 of 21 General Plan Amendment An amendment to the 2006 Newport Beach General Plan Land Use Element is a legislative act. Neither Title 20 (Planning and Zoning) nor California Government Code Section 65000 et seq., set forth any required findings for either approval or denial of such amendments. Finding and Facts in Support of Findings: 1. As part of the Approved Project, the City Council adopted Resolution No. 2012-10, which authorized the conversion of 17 tennis courts to 27 hotel rooms along with the redevelopment of the Property. The Approved Project included a 3,725-square-foot tennis clubhouse and seven tennis courts, five single-family residential units, and a 27- room boutique hotel with a 2,200 square -foot concierge and guest meeting facility and a 7,500 square -foot spa and fitness center. The City Council found that the conversion of tennis courts to hotel rooms is consistent with the General Plan based on the following: a. The Project provides revitalization to Newport/Fashion Island area where the General Plan encourages additional hotel development and housing units; and b. The conversion does not create traffic impacts. At the time of the conversion, the 17 tennis courts generated 658 average daily trips based upon ITE Trip Generation Rates (7t" edition), while the 27 hotel rooms generated 221 average daily trips, resulting in a net decrease of 389 daily trips. 2. The Project includes a GPA to amend the development limits for Anomaly 46. The development limits will be updated to reflect 41 hotel rooms, 27 of which have been approved by the conversion of 17 unused tennis courts as part of the Approved Project. The GPA will also include a reduction of the seven (7) tennis courts of the Approved Project to four (4) tennis courts, as well as 14 pickleball courts. No change to the 3,725- square-foot tennis and pickleball clubhouse is proposed. Finally, a maximum of five (5) residential units has been specified in the Anomaly table. The GPA does not include a change in land use designation and would remain as Mixed -Use Horizontal 3/Parks and Recreation (MU-H3/PR). 3. The GPA for the Project is consistent with the following City of Newport Beach General Plan Land Use policies, applicable to the Project (additional policy analysis is included in the MND Addendum attached hereto as Exhibit "A"): a. Land Use Element Policy LU1.1 (Unique Environment). Maintain and enhance the beneficial and unique character of the different neighborhoods, business districts, and harbor that together identify Newport Beach. Locate and design development to reflect Newport Beach's topography, architectural diversity, and view sheds. The Project includes an amendment to the PC-47 District regulations on the Tennis Club sites and reflects the proposed development on the Property. PC-47 will continue to guide development occurring within the Property. The development 21-146 DocuSign Envelope ID: 5A6A4607-2A90-4FCD-8C3C-883F376CB71 F Planning Commission Resolution No. PC2023-014 Paae 7 of 21 standards address building height, setbacks, landscaping, and architectural character. The standards are intended to ensure that the City's unique character is maintained through land use and architectural diversity. b. Land Use Element Policy LU1.2 (Citywide Identity). While recognizing the qualities that uniquely define its neighborhoods and districts, promote the identity of the entire City that differentiates it as a special place within the Southern California region. The area in which the Property is located is characterized by a variety of residential, commercial, and recreational land uses that reflect a range of architectural styles, which contribute to the unique character of the City. The intensity and architectural character of the Project are compatible with the variety of densities and styles within the area, which are consistent with the identity of the City. The architectural character of the Project, including the bungalow -style hotel rooms, detached residential units, and attached residential loft buildings, is consistent with the City's desire to differentiate Newport Beach from other coastal cities. c. Land Use Element Policy LU2.1 (Resident -Serving Land Uses). Accommodate uses that support the needs of Newport Beach's residents including housing, retail, services, employment, recreation, education, culture, entertainment, civic engagement, and social and spiritual activity that are in balance with community natural resources and open spaces. The Project will continue to provide residents with recreational opportunities, culture, entertainment, and civic engagement. The proposed GPA remains supportive of recreational uses by providing four (4) tennis courts and 14 pickleball courts. The Project also includes an additional 14 hotel rooms to the previously approved 27-unit hotel development with additional hotel amenities for club members such as a Performance Therapy Center and a Yoga Pavilion. d. Land Use Element Policy LU.2.6 (Visitor Serving Uses). Provide uses that serve visitors to Newport Beach's ocean, harbor, open spaces, and other recreational assets, while integrating them to protect neighborhoods and residents The Project provides visitors with an updated recreational facility as it includes a new tennis and pickleball clubhouse, four (4) tennis courts and 14 pickleball courts. Two (2) of the 14 pickleball courts are proposed to be located within a new stadium. The tennis and pickleball club is adjacent to the golf course with amenities and is within 2,000 feet from the Newport Bay. The proposed 41 hotel rooms provide additional opportunities for visitors to enjoy the tennis and pickleball club and nearby recreational activities. e. Land Use Element Policy LU3.2 (Growth and Change). Enhance existing neighborhoods, districts, and corridors, allowing for reuse and infill with uses that are complementary in type, form, scale, and character. Changes in use and/or density/intensity should be considered only in those areas that are economically 21-147 DocuSign Envelope ID: 5A6A4607-2A90-4FCD-8C3C-883F376CB71 F Planning Commission Resolution No. PC2023-014 Paae 8 of 21 underperforming, are necessary to accommodate Newport Beach's share of projected regional population growth, improve the relationship and reduce commuting distance between home and jobs, or enhance the values that distinguish Newport Beach as a special place to live for its residents. The scale of growth and new development shall be coordinated with the provision of adequate infrastructure and public services, including standards for acceptable traffic level of service. The character of the tennis and pickleball club, hotel development, and residential units are compatible with the existing land uses and development intensities of the surrounding area. Although the reduction of three (3) tennis courts and addition of 14 hotel rooms and 14 pickleball courts requires amendments to adopted plans and regulations, the existing tennis club and hotel development that are the substance of the Approved Project are allowed under the existing General Plan. The Project has been designed to be compatible with the existing residential, commercial, and recreational uses located within the vicinity of the Property. In addition, the surrounding area is adequately served by existing infrastructure, including circulation, water, sewer, and storm drainage systems. As a result, the implementation of the Project will not adversely affect those systems or the provision of adequate service to nearby development. Land Use Element Policy LU3.3 (Opportunities for Change). Provide opportunities for improved development and enhanced environments for residents in the following districts and corridors, as specified in Polices 6.3.1 through 6.22.7: Fashion Island/Newport Center: expanded retail uses and hotel rooms and development of residential in proximity to jobs and services, while limiting increases in office development. The Project provides enhancement to the Property, which is currently being used exclusively as a tennis club with 31 interim pickleball courts. The Project will include 41 hotel rooms and ancillary uses, and five (5) residential units. The Project includes four tennis courts and 14 pickleball courts as well as the reconstruction of the tennis and pickleball clubhouse. The Project will be utilized as a recreational facility for residents, guests, and club members. g. Land Use Element Policy LU4.1 (Land Use Diagram). Accommodate land use development consistent with the Land Use Plan. The Project is consistent with the designation of the General Plan Land Use Element, which designates the Property as MU-H3/PR. The Property is located within Anomaly 46, which allocates 24 tennis courts with residential permitted in accordance with the MU-1-13 designation. The GPA includes an amendment to the Development Limit (Other) of Anomaly 46, to reduce the number of tennis courts to four, add 14 pickleball courts, and include 41 hotel rooms. h. Land Use Element Policy LU5.1.2 (Compatible Interfaces). Require that the height of development in nonresidential and higher -density residential areas 21-148 DocuSign Envelope ID: 5A6A4607-2A90-4FCD-8C3C-883F376CB71 F Planning Commission Resolution No. PC2023-014 Paae 9 of 21 transition as it nears lower -density residential areas to minimize conflicts at the interface between the different types of development. Although the Property is not located adjacent to lower density residential development, the Project has been designed to respect the proximity of the existing residential development adjacent to the Property. The amended PC-47 prescribes maximum building heights and setback requirements for each of the development components to ensure land use compatibility. Building heights for the proposed structures will range from 46 feet for the attached residential loft buildings, 39 feet for the detached residential units, 31 feet for the hotel rooms, and 30 feet for the tennis and pickleball clubhouse, which are within the maximum 50-foot building height allowed by PC-47. Land Use Element Policy LU (5.3.3). Require that properties developed with a mix of residential and non-residential uses be designed to achieve high levels of architectural quality in accordance with Policies 5.1.9 and 5.2.1 and planned to assure compatibility among the uses and provide adequate circulation and parking. Residential uses should be seamlessly integrated with non-residential uses through architecture, pedestrian walkways, and landscape. They should not be completely isolated by walls or other design elements. The Project includes four tennis courts, 14 pickleball courts, 41 hotel rooms and ancillary hotel uses, two (2) single family residences, and three (3) residential condominium units. The Project provides adequate parking for each of the proposed uses. Vehicular and pedestrian circulation has been designed to accommodate the residents, as well as guests and members of the tennis club and hotel development. The architectural character of the uses is defined in PC-47 to ensure that compatibility between proposed uses and the surrounding area is maintained. j. Land Use Element Policy LU5.3.4 (Districts Integrating Residential and Nonresidential Uses). Require that sufficient acreage be developed for an individual use located in a district containing a mix of residential and non-residential uses to prevent fragmentation and assure each use's viability, quality, and compatibility with adjoining uses. Each of the uses has been designed to complement the overall Project. The uses are connected by the vehicular and pedestrian circulation system, including sidewalks and pedestrian pathways. Land use compatibility is achieved through a common landscape theme and design guidelines in PC-47 to ensure that the architectural integrity of the Project is not compromised. k. Land Use Element Policy LU6.14.2 (Newport Center). Provide the opportunity for limited residential, hotel, and office development in accordance with the limits specified by Tables LU1 and LU2. The Project has a mix of land uses including single-family residential, attached residential condominiums, recreational tennis and pickleball club facilities, and 21-149 DocuSign Envelope ID: 5A6A4607-2A90-4FCD-8C3C-883F376CB71 F Planning Commission Resolution No. PC2023-014 Paae 10 of 21 visitor -serving commercial uses. These uses are permitted in Table LU1 under the MU-H3/PR land use designation. The GPA proposes to amend the development limits of Table LU2 to include four tennis courts, 14 pickleball courts, and 41 hotel rooms. 1. Land Use Element Policy LU6.14.6 (Pedestrian Connectivity and Amenity). Encourage that pedestrian access and connections among uses within the district be improved with additional walkways and streetscape amenities concurrent with the development of expanded and new uses. The Project provides for both pedestrian and vehicular access within the Property. Sidewalks and pedestrian pathways are incorporated into the circulation system that are intended to accommodate pedestrians utilizing the tennis club, hotel facilities, and future residents. A landscape plan has been provided which includes plant materials that are intended to reflect and complement the existing character within the project area. 4. Pursuant to California Government Code Section 65352.3 (SB18), a local government is required to contact the appropriate tribes identified by the Native American Heritage Commission ("NAHC") each time it considers a proposal to adopt or amend the General Plan. If requested by any tribe, the local government must consult for the purpose of preserving or mitigating impacts to cultural resources. The City received comments from the NAHC indicating that twelve tribal contacts should be provided notice regarding the proposed amendment. The tribal contacts were provided notice on June 9, 2022. Subsequently, City Staff corresponded with two (2) tribes, Gabrielino Tongva Indians of California and Juaneno Band of Mission Indians. On January 17, 2023, the aforementioned tribes were provided a courtesy notification that the application has been modified to include pickleball courts. No further correspondence was requested by either tribe. California Government Code Section 65352.3 requires notification 90 days prior to Council action to allow tribal contacts to respond to the request to consult. The 90-day notification period expired on September 7, 2022. 423 Charter Analysis Finding: Charter Section 423 requires voter approval of any major General Plan amendment to the General Plan. A major General Plan amendment is one that significantly increases allowed density or intensity by 40,000 square feet of non-residential floor area, increases traffic by more than 100 peak hour vehicle trips (AM/PM), or increases residential dwelling units by 100 units. These thresholds apply to the total of increases resulting from the amendment itself, plus 80 percent of the increases resulting from other amendments affecting the same neighborhood (defined as a Statistical Area as shown in the General Plan Land Use Element) and adopted within the preceding ten years. Council Policy A-18 (Guidelines for Implementing Charter Section 423) requires that proposed amendments to the General Plan be reviewed to determine if a vote of the Newport Beach 21-150 DocuSign Envelope ID: 5A6A4607-2A90-4FCD-8C3C-883F376CB71 F Planning Commission Resolution No. PC2023-014 Paae 11 of 21 electorate would be required. This policy includes a provision that all General Plan amendments be tracked as "Prior Amendments" for ten years to determine if minor amendments in a single Statistical Area cumulatively exceed the thresholds indicated above. Facts in Support of Findings: 1. The Property is within Statistical Area L1. Prior amendments within the past ten years are Vivante Senior Housing and Residences at Newport Center. Charter Section 423 counts 80 percent of prior increases, which results in a cumulative increase of 94 dwelling units, 23 AM trips, and 43 PM trips between both projects. There were no square footage increases. 2. The GPA results in an increase of 14,000 square feet (at the rate of 1,000 square feet per hotel unit) of non-residential floor area, 26.21 AM trips, and 51.22 PM trips. When combined with 80 percent of the prior increases, this results in cumulative increases of 14,000 square feet of non-residential floor area, 49.21 AM trips, and 94.22 PM trips. As none of the thresholds specified by Charter Section 423 are exceeded, no vote of the electorate is required if the City Council chooses to approve the GPA. Local Coastal Program Amendment Finding: As set forth in Section 30500 of the California Public Resources Code, the California Coastal Act requires each county and city to prepare a local coastal program ("LCP") for that portion of the Coastal Zone within its jurisdiction. The California Coastal Commission effectively certified the City's LCP Implementation Plan on January 13, 2017, and the City of Newport Beach ("City") added Title 21 (Local Coastal Program Implementation Plan) ("Title 21 ") to the NBMC whereby the City assumed coastal development permit -issuing authority as of January 30, 2017. Facts in Support of Findinas: An amendment to Title 21 is necessary to revise Section 21.26.055(S), specifically referring to the Newport Beach Country Club Planned Community (PC-47) development standards of the Tennis and Pickleball Club, residential units, and hotel: 1. Tennis and Pickleball Club - The LCPA modifies the density and intensity limit for the number of tennis courts from seven (7) to four (4) courts and adds 14 pickleball courts. The additional courts increase the minimum required parking from 28 spaces to 72 spaces. There is no change to the 3,725-square-foot limit for the tennis and pickleball clubhouse. 2. Residential - The number of residential units remains unchanged. However, the LCPA converts three (3) of the five (5) single-family residences to attached residential condominium units. Therefore, the amendment revises the density and intensity limit for residential use from five (5) to two (2) single family residences and removes previous development standards for Villas C, D, and E. The LCPA also includes new development 21-151 DocuSign Envelope ID: 5A6A4607-2A90-4FCD-8C3C-883F376CB71 F Planning Commission Resolution No. PC2023-014 Paae 12 of 21 standards for attached residential condominiums, which have a density limit of three (3) units and maximum gross floor area of 15,035 square feet. The maximum height allowed for the attached residential buildings is 46 feet. The buildings are required to be set back five (5) feet from any property line. The remaining single-family residences require a minimum of two (2) enclosed parking spaces and one (1) guest parking space per unit, while the proposed attached condominiums require a minimum of three (3) enclosed parking spaces and one (1) guest parking space per unit. 3. Hotel - The LCPA revises the density and intensity limits for the hotel from 27 to 41 short- term guest rental rooms. Additionally, the maximum allowable gross floor area increases from 28,300 to 47,484 square feet. Square footage for ancillary hotel uses are also included. A minimum of one (1) space per hotel unit is required. 4. The LCPA is consistent with other applicable land use policies of the Coastal Land Use Plan as provided below: a. Coastal Land Use Element Policy 2.1.2-1 (District/Corridor Policies). Development in each district and corridor shall adhere to policies for land use type and density/intensity contained in Table 2.1.1-1, except as modified in Sections 2.1.3 to 2.1.8. The MU-H/PR designation allows horizontally -distributed mix of uses, which may include general or neighborhood commercial, commercial offices, multi -family residential, visitor -servicing and marine -related uses, buildings that vertically integrate residential with commercial uses, and active public or private recreational uses, including parks, golf courses, marina support facilities, aquatic facilities, tennis clubs and courts, private recreation, and similar facilities. The Project is consistent with the land use designation on the adopted Coastal Land Use Plan, which designates the subject property MU-H/PR (Mixed Use Horizontal/Parks & Recreation). The Project includes a mixture of uses which include a tennis club with four (4) tennis courts, 14 pickleball courts, a 41-unit hotel development and ancillary uses, and five (5) residential units. All of these uses are intended to provide an updated recreational facility to serve the residents and visitors of the City. Additionally, the residential units will supplement the City's housing supply. c. Coastal Land Use Element Policy 2.1.8-1 (Balboa Bay Tennis Club). Allow the horizontal intermixing of short-term rental units and single-family homes with the expanded tennis club faculties. Permitted uses include those permitted by the MU-H and PR categories. The Project includes the mix of 41 hotel rooms with five (5) residential units, which consists of two (2) single-family residences and three attached condominium units. The hotel and residential uses are consistent with both the MU-H and PR categories. 21-152 DocuSign Envelope ID: 5A6A4607-2A90-4FCD-8C3C-883F376CB71 F Planning Commission Resolution No. PC2023-014 Paae 13 of 21 5. Pursuant to Section 13515 of the California Code of Regulations Title 14, Division 5.5, Chapter 8, drafts of the LCPA were made available and a Notice of Availability was distributed on December 21, 2022, at least six (6) weeks prior to the anticipated final action date. Planned Community Development Plan Amendment The Property has a zoning designation of PC-47, which was adopted in 1997 by Ordinance 97- 10 as a part of the City-wide amendment to the districting maps in order to be consistent with the 1988 General Plan Land Use Element and Zoning Code. Development regulations through a Planned Community District Development Plan was not adopted when the PC District zoning designation was assigned to the Property. On March 27, 2012, the City Council adopted a Planned Community Development Plan (PCDP), which is the zoning document to PC-47 to provide use regulations, density and intensity of the proposed uses, and very specific development regulations (building height, square footage, setbacks, and parking standards). The PCDP included architectural styling and a complete internal vehicular and pedestrian circulation system for both the Golf and Tennis Club sites. PC-47 also includes site development review regulations to ensure new development proposals within the Newport Beach Country Club are consistent with the goals and policies of the General Plan, provisions of PC-47, and the approved Development Agreement. Findings: An amendment to PC-47, which is the zoning document for the Property, is a legislative act. Neither PC-47, Chapter 20.66 (Planning and Zoning, Amendments) and Chapter 20.56 (Planning and Zoning, Planned Community District Procedures) of Title 20 (Planning and Zoning) of NBMC, or Article 2 (Adoption of Regulations) of Chapter 4 (Zoning Regulations) of Division 1 (Planning and Zoning) of Title 7 (Planning and Land Use) of the California Government Code set forth any required findings for either approval or denial of such amendments. Facts in Support of Findings: The proposed amendment to PC-47 to allow an additional 14 hotel rooms and ancillary uses, a reduction of three (3) tennis courts and addition of 14 pickleball courts, and the conversion of three (3) of five (5) single-family dwelling units to condominiums is consistent with the intent of PC-47 and the purpose of Planned Community Districts as specified in NBMC Section 20.56.010 (Planning and Zoning, Planning Community District Procedures, Purpose) for the following reasons: 1. The Project is consistent with the intent and purpose of PC-47 in that the tennis club, hotel, and residential uses and their development standards have already been allowed and are in place on the Property. The tennis club includes tennis courts and interim pickleball courts that are ancillary to the club and consistent with the intended recreational uses allowed at the Property. The proposed changes to the building height, 21-153 DocuSign Envelope ID: 5A6A4607-2A90-4FCD-8C3C-883F376CB71 F Planning Commission Resolution No. PC2023-014 Paae 14 of 21 setbacks, and parking standards in order to accommodate the Project are within the development standards in place for the Approved Project. 2. PC-47 provides guidelines for architectural design to include coordinated and cohesive architecture which exhibits quality that is keeping with the surrounding area in Newport Center. The Project includes additional hotel rooms and two (2) attached residential condominium loft buildings. The proposed additions have consistent architecture with the Approved Project, which has cohesive architectural features that include smooth plaster exterior siding, clay -tile roofs, and stone veneer exterior accent finishes. 3. PC-47 permits structures to be a maximum of 50 feet in height. The Project includes two (2) attached residential condominium loft buildings which features condominiums on the third level atop of a two (2)-level hotel building. The loft buildings are proposed at a maximum of 46 feet high and comply with the height limit. All other structures are consistent with the maximum heights prescribed in PC-47. Development Agreement On March 27, 2012, the City Council adopted Ordinance No. 2012-3 approving Development Agreement No. DA2008-001 ("Existing Agreement") between the City and the Applicant for the Approved Project. The Existing Agreement was executed and recorded, as document number 2014000036369 on January 29, 2014, with a 10-year term. On July 12, 2022, the City Council adopted Ordinance No. 2022-16, approving the First Amendment to DA2008-001 to extend the term of the Existing Agreement by one (1) year. The Existing Agreement will expire on September 23, 2023. With the Project including an amended scope of work, the DA is required since it includes new non-residential development in Statistical Area L1 (Newport Center/Fashion Island). Finding: In accordance with Section 15.45.020(A)(2)(c) (Buildings and Construction, Development Agreement, Development Agreement Required) of the NBMC, the DA is required as the Project, which includes an amendment to PC-47 and a General Plan Amendment to increase the number of hotel rooms from 27 to 41 rooms, which is new non-residential development in Statistical Area L1. Additionally, the Applicant requests an additional 10-year term of agreement, pursuant to Section 15.45.070 (Buildings and Construction, Development Agreement, Amendment/Cancellation) of the NBMC. The DA satisfies the requirements of Chapter 15.45 (Buildings and Construction, Development Agreements) of the NBMC as follows: Facts in SUDDort of Findina: 1. The DA provides assurance that the Applicant may proceed with the Project in accordance with existing policies, rules and regulations, and conditions of approval. Additionally, the DA helps the Applicant avoid a waste of resources and escalated costs 21-154 DocuSign Envelope ID: 5A6A4607-2A90-4FCD-8C3C-883F376CB71 F Planning Commission Resolution No. PC2023-014 Paae 15 of 21 of the Project while encouraging a commitment to private participation in comprehensive planning. 2. The DA specifies the term of Agreement for a period of 10 years, and describes the permitted uses, density and intensity, and maximum height and size of proposed buildings, consistent with the Project. Additionally, the DA includes all mandatory elements, including public benefits that are appropriate to support conveying the vested development rights consistent with the City's General Plan, NBMC, and Government Code Sections 65864 et seq. 3. The DA includes a provision which states that the effective date is contingent upon final approval of the LCPA by the CCC. Subsequently, further discretionary approvals (eg. Coastal development permit, site development review, tentative tract map, limited permit, etc.) are also required to implement the Project as described by the DA. 4. Public benefits include the payment of ninety-three thousand dollars ($93,000) per each residential dwelling unit and $10 per square foot of construction for the tennis and pickleball clubhouse. 5. If the DA is adopted, the existing Agreement is considered terminated. SECTION 4. DECISION. NOW, THEREFORE, BE IT RESOLVED: 1. The Planning Commission of the City of Newport Beach hereby recommends the following to the City Council: a. Adopt Mitigated Negative Declaration Addendum No. ND2022-001 to Mitigated Negative Declaration No. ND2010-008 and Errata to Mitigated Negative Declaration No. ND2010-008 (SCH 2O10091052), which is attached hereto as Exhibit "A", and incorporated herein by reference; b. Approve the General Plan Amendment, which is attached hereto as Exhibit "B", and incorporated herein by reference; c. Approved the Local Coastal Program Amendment, which is attached hereto as Exhibit "C", and incorporated herein by reference; d. Approve the Planned Community Development Plan Amendment, which is attached hereto as Exhibit "D", and incorporated herein by reference; e. Approve termination of the Existing Agreement and approval of the Development Agreement, which is attached hereto as Exhibit "E", and incorporated herein by reference. 21-155 DocuSign Envelope ID: 5A6A4607-2A90-4FCD-8C3C-883F376CB71 F Planning Commission Resolution No. PC2023-014 Paae 16 of 21 PASSED, APPROVED, AND ADOPTED THIS 23RD DAY OF MARCH, 2023. AYES: Ellmore, Harris, Klaustermeier, Lowrey, and Rosene NOES: None RECUSED: Langford ABSENT: Barto BY: Curtis Ellmore, Chairman BY: Sarah Klaustermeier, Secretary Attachments: Exhibit A — Mitigated Negative Declaration Addendum No. ND2022-001 to Mitigated Negative Declaration No. ND2010-008 and Errata to Mitigated Negative Declaration No. ND2010-008 (SCH 2O10091052) Exhibit B — General Plan Amendment to Anomaly No. 46 of Table LU2 of the 2006 Newport Beach General Plan Land Use Element Exhibit C — Local Coastal Program Implementation Plan Amendment Exhibit D — Newport Beach Country Club Planned Community Development Plan Amendment Exhibit E — Development Agreement 21-156 Planning Commission Resolution No. PC2023-014 Paae 17 of 21 EXHIBIT "A" ADDENDUM TO MITIGATED NEGATIVE DECLARATION NO. ND2010-008 AND ERRATA TO MITIGATED NEGATIVE DECLARATION NO. ND2010-008 (SCH NO. 2010091052) Available separately due to bulk at: www.newportbeachca.gov/cega 21-157 Planning Commission Resolution No. PC2023-014 Paae 18 of 21 EXHIBIT "B" GENERAL PLAN AMENDMENT TO ANOMALY NO. 46 OF TABLE LU2 OF THE 2006 NEWPORT BEACH GENERAL PLAN LAND USE ELEMENT 21-158 Anomaly Number Statistical Area Land Use Designation Development Limit (sf) Development Limit (Other Additional Information 46 L1 MU-H3/PR 3,725 24 Tennis Courts Residential -in 4 Tennis Courts Permitted a^nnrrdanGe with 14 Pickleball Mu 3 Courts 5 residential units permitted 41 Hotel Rooms 21-159 Planning Commission Resolution No. PC2023-014 Paae 19 of 21 EXHIBIT "C" LOCAL COASTAL PROGRAM IMPLEMENTATION PLAN AMENDMENT 21-160 Local Coastal Program Implementation Plan Amendment Related to Development Standards of the Tennis and Pickleball Club portion within the Newport Beach Country Club Planned Community (PC-47) (PA2021-260) Amend Section 21.26.055(S)(2)-(4) (Newport Beach Country Club) of Title 21 (Local Coastal Program Implementation Plan) of the Newport Beach Municipal Code to read as follows: S. Newport Beach Country Club (PC-47) 2. Tennis and Pickleball Club. a. Density/intensity limit: seveR tennis courts, fourteen (14) pickleball , and three thousand seven hundred twenty-five (3,725) square foot clubhouse. b. Height: thirty (30) feet for clubhouse. c. Parking: +,, eRty_oucht (28) spaG seventy-two (72) spaces. 3. Residential. a. Detached Residential The `as i. Density/intensity limit: 4ve two single-family dwelling units. ii. Development Standards: V441a Dwelling Unit V44a Single -Family Villa Single -Family Dwelling B Designation Dwelling A (TTM Lot #1) (TTM Lot #2) Lot Size 5,000 square feet minimum Lot Coverage (Maximum) 70% 65% 39 feet, measured in accordance with the Height and Grade Building Height definition of Section 2.0 General Conditions and Regulations Building Side Yard Setbacks 3 feet minimum Building Front and Rear Yard 5 feet minimum Setbacks Enclosed Parking Space for 2 2 Each Unit Open Guest Parking Space One space - could be located on the private driveway — No for Each Unit overhang to the private street/cul-de-sac is allowed 21-161 b. Attached Residential (Condominiums) i. Density/intensity limit: three (3) attached residential units. ii. Development Standards: Setbacks: 5 feet minimum from any property line Height: 46 feet to be located atop of the 2-story hotel buildings) Parking: 3 enclosed spaces and one guest space per dwelling unit a. Density/Intensity Limit: The maximum allowable number of the b6iRgalews hotel rooms shall be twenty seven (27) forty-one (41) short-term guest rental Units rooms. The maximum total allowable gross floor area for the hotel rooms shall be twenty eight thousand throe hundred (28,3004 28300 forty-seven thousand four hundred eighty-four (47,484) square feet with a two thousand two hundred (2,200) square - foot concierge and guest center, four thousand six hundred eighty-six (4,686) square feet of ancillary hotel uses, and a seven thousand five hundred (7,500) square -foot spa facility. b. Setbacks: five feet from any property line. c. Height: thirty-one (31) feet. d. Parking: thirty f„ut (34) parking spaGGS. forty-one (41) parking spaces. 21-162 Planning Commission Resolution No. PC2023-014 Paae 20 of 21 EXHIBIT "D" NEWPORT BEACH COUNTRY CLUB PLANNED COMMUNITY DEVELOPMENT PLAN AMENDMENT 21-163 Newport Beach Country Club Planned Community Development Plan Adoption: March 27, 2012, Ordinance No. 2012-2 Amendment: , 2023, Ordinance No._ 21-164 TABLE OF CONTENTS 1.0 Introduction and Purpose............................................................................... 4 2.0 General Conditions and Regulations.............................................................. 5 3.0 Land Use and Development Regulations....................................................... 10 3.1 Golf Club.............................................................................................. 10 A. Golf Course.................................................................................... 10 B. Golf Clubhouse and Ancillary Uses ................................................ 10 1. Building Area............................................................................. 10 2. Building Height.......................................................................... 10 3. Permitted Ancillary Uses........................................................... 10 4. Parking...................................................................................... 11 5. Fencing..................................................................................... 11 3.2 Tennis and Pickleball Club................................................................... 11 A. Tennis and Pickleball Courts.......................................................... 11 1. Number of Courts...................................................................... 11 B. Tennis and Pickleball Clubhouse and Ancillary Uses ..................... 12 1. Building Area............................................................................. 12 2. Building Height.......................................................................... 12 3. Permitted Ancillary Uses........................................................... 12 4. Parking...................................................................................... 12 3.3 TheT re Villas Residential......................................................................... 12 1 Number Of Units Detached Residential ..................................... 13 2 Development Standard Attached Residential .......................... 14 3.4 The BURgale w s Hotel........................................................................... 14 1. Number of Units Rooms............................................................ 14 2. Permitted Ancillary Uses........................................................... 14 3. Building Area............................................................................. 14 4. Building Height.......................................................................... 15 5. Building Setbacks...................................................................... 15 6. Parking...................................................................................... 15 3.5 Signs.................................................................................................... 15 A. Sign Allowance............................................................................... 15 B. Sign Standards............................................................................... 16 4.0 Site Development Review.............................................................................. 17 4.1 Purpose............................................................................................... 17 4.2 Application........................................................................................... 17 4.3 Findings............................................................................................... 17 4.4 Contents.............................................................................................. 18 4.5 Public Hearing - Required Notice........................................................ 18 4.6 Expiration and Revocation Site Plan Review Approvals ...................... 19 2 21-165 4.7 Fees..................................................................................................... 19 4.8 Minor Changes by the Community Development Director ................... 19 LIST OF EXHIBITS Exhibit Name Exhibit Number VicinityAerial Map............................................................................................... A Conceptual Master Site Plan............................................................................... B LIST OF TABLES Table Name Page The re Villas Residential Development Standards ................................................... 13 3 21-166 1.0 INTRODUCTION AND PURPOSE The Newport Beach Country Club Planned Community District (the PCD) is composed of the Golf Club, Tennis and Pickleball Club, BURgalOWS and Villas faGilitiGG detached and attached residences, totaling approximately 4-3 140 acres. The PCD has been developed in accordance with the Newport Beach General Plan and is consistent with the Local Coastal Land Use Plan. The purpose of this PCD is to provide for the classification and development of coordinated, cohesive, comprehensive planning project with limited mixed uses, including the private Golf Club, Tennis and Pickleball Club, 27- shert term rental units 41-room boutique hotel Galled the BURgalews with a spa/fitness area center and ancillary uses, and 5 eerni cUStOM Si glePi residential dwellings units "mod the Villas. Whenever the regulations contained in the PCD Regulations conflict with the regulations of the Newport Beach Municipal Code, the regulations contained in the PCD Regulations shall take precedence. The Newport Beach Municipal Code shall regulate all development within the PCD when such regulations are not provided within the PCD Regulations. 0 21-167 2.0 GENERAL CONDITIONS AND REGULATIONS 1. Alcoholic Beverage Consumption The consumption of alcoholic beverages within the PCD shall be in compliance with the State of California Department of Alcoholic Beverage Control and the Newport Beach Municipal Code. A use permit shall be required if the establishment operates past 11:00 p.m. any day of the week and a minor use permit shall be required if the establishment operates until 11:00 p.m. any day of the week. 2. Amplified Music All amplified music played after 10:00 p.m. within the PCD shall be confined within the interior of a building unless a Special Events Permit is obtained. 3. Archaeological/Paleontological Resources Development of the site is subject to the provisions of City Council Policies K-5 and K-6 regarding archaeological and paleontological resources. 4. Architectural Design All development shall be designed with high quality architectural standards and shall be compatible with the surrounding uses. The development should be well -designed with coordinated, cohesive architecture and exhibiting the highest level of architectural and landscape quality in keeping with the PCD's prominent location in the Newport Center Planning Area. Massing offsets, variation of roof lines, varied textures, openings, recesses, and design accents on all building elevations shall be provided to enhance the architectural style. Architectural treatments for all ancillary facilities (i.e. storage, truck loading and unloading, and trash enclosures) shall be provided. 5. Building Codes Construction shall comply with applicable provisions of the California Building Code and the various other mechanical, electrical and plumbing codes related thereto as adopted by the Newport Beach Municipal Code. 6. Exterior Storage Areas There shall be no exterior storage areas permitted with the exception of the greenskeeper/maintenance area which shall be enclosed by a minimum six-foot plastered block wall. 461 21-168 7. Flood Protection Development of the subject property will be undertaken in accordance with the flood protection policies of the City. 8. Grading and Erosion Control Grading and erosion control measures shall be carried out in accordance with the provisions of the Newport Beach Excavation and Grading Code and shall be subject to permits issued by the Community Development Department. 9. Gross Floor Area Gross floor area shall be defined as the total area of a building including the surrounding exterior walls. 10. Height and Grade The height of any structure within the PCD shall not exceed fifty (50) feet, unless otherwise specified. The height of a structure shall be the vertical distance between the highest point of the structure and the grade directly below. In determining the height of a sloped roof, the measurement shall be the vertical distance between the grade and the midpoint of the roof plane, provided that no part of the roof shall be extend more than five (5) feet above the permitted height in the height limitation zone, and any amendments shall be subject to the review and approval of the Community Development Director 11. Landscaping/Irrigation Landscaping and irrigation shall be provided in all areas not devoted to structures, parking lots, driveways, walkways, and tennis courts to enhance the appearance of the development, reduce heat and glare, control soil erosion, conserve water, screen adjacent land uses, and preserve the integrity of PCD. Landscaping and irrigation shall consist of a combination of trees, shrubs, groundcover and hardscape improvements. Landscaping shall be prepared in accordance with the Landscaping Standards and Water -Efficient Landscaping Sections of the Newport Beach Municipal Code and installed in accordance with the approved landscape plans prepared by a licensed landscape architect. 12. Lighting — Outdoor All new outdoor lighting shall be designed, shielded, aimed, located and maintained to shield adjacent uses/properties and to not produce glare onto adjacent uses/properties. Lighting plans shall be prepared in compliance with the Outdoor Lighting Section of the 21-169 Newport Beach Municipal Code and shall be prepared by a licensed electrical engineer. All lighting and lighting fixtures that are provided shall be maintained in accordance with the approved lighting plans. 13. Lighting — Parking & Walkways All lighting and lighting fixtures that are provided shall be maintained in accordance with the approved lighting plans. Light standards within parking lots shall be the minimum height required to effectively illuminate the parking area and eliminate spillover of light and glare onto adjoining uses/properties and roadways. Parking lots and walkways accessing buildings shall be illuminated with a minimum of 0.5 foot-candle average on the driving or walking surface during the hours of operation and one hour thereafter. Lighting plans shall be prepared in compliance with the Outdoor Lighting Section of the Newport Beach Municipal Code and shall be prepared by a licensed electrical engineer. If the applicant wishes to deviate from this lighting standard, a lighting plan may be prepared by the applicant and submitted to the Community Development Director for review and approval. 14. Loading Areas for Non -Residential Uses All loading and unloading of goods delivery shall be performed onsite. Loading platforms and areas shall be screened from public view. 15. Parking Areas Parking spaces, driveways, maneuvering aisles, turnaround areas, and landscaping areas of the parking lots shall be kept free of dust, graffiti, and litter. All components of the parking areas including striping, paving, wheel stops, walls, and light standards of the parking lots shall be permanently maintained in good working condition. Access, location, parking space and lot dimensions, and parking lot improvements shall be in compliance with the Development Standards for Parking Areas Section of the Newport Beach Municipal Code. 16. Property Owner Approval Written property owner approval shall be required for the submittal of any site development review application and/or prior to grading and/or building permit issuance. 17. Outdoor Paging Outdoor paging shall be permitted at the Golf Club to call individuals to the tees and at the Tennis and Pickleball Club to call points during tennis and picklebal tournaments. 7 21-170 18. Sewage Disposal Sewage disposal service facilities for the PCD will be provided by Orange County Sanitation District No. 5 and shall be subject to applicable regulations, permits and fees as prescribed by the Sanitation District. 19. Screening of Mechanical Equipments All new mechanical appurtenances (e.g., air conditioning, heating, ventilation ducts and exhaust vents, swimming pool and spa pumps and filters, transformers, utility vaults and emergency power generators) shall be screened from public view and adjacent land uses. The enclosure design shall be approved by the Community Development Department. All rooftop equipment (other than vents, wind turbines, etc.) shall be architecturally treated or screened from off -site views in a manner compatible with the building materials prior to final building permit clearance for each new or remodeled building. The mechanical appurtenances shall be subject to sound rating in accordance with the Exterior Noise Standards Section of the Newport Beach Municipal Code. Rooftop screening and enclosures shall be subject to the applicable height limit. 20. Screening of the Villas Residential Units from Tennis and Pickleball Courts Adequate buffering between the Villas residential units and tennis courts and pickleball courts shall be provided and subject to the Site Development Review process. The exterior perimeter of the tennis courts facing Granville Condominiums, Granville Drive, and the Tennis and Pickleball Clubhouse parking lot shall be screened by a minimum ten -foot -high chain link fence covered by a wind screen. Wind screen shall be maintained in good condition at all time. Additionally, adequate sound barriers shall be installed around the tennis and pickleball courts to the satisfaction of the Community Development Director. 21. Screening of the Villas' Pool/Spa Equipment All pool and/or spa equipment shall be enclosed by a minimum five-foot high block wall plastered or otherwise textured to match the building. 22. Special Events Temporary special community events, such as such as PGA Senior Classic golf tournaments, Team Tennis, Davis Cup Matches, pickleball tournaments and other similar events, are permitted in the PCD, and are subject to the Special Events Chapter of the Newport Beach Municipal Code. Temporary exterior storage associated with approved special events may be permitted provided it is appropriately screened and regulated with an approved Special Event Permit. 21-171 23. Temporary Structures and Uses Temporary structures and uses, including modular buildings for construction -related activities are permitted. 24. Trash Container Storage for Residential Dwellings Trash container storage shall be out of view from public places, and may not be located in the required parking areas. If trash container storage areas cannot be located out of public view, they shall be screened from public view. Screening shall consist of fences, walls, and landscaping to a height at least 6 inches above the tops of the containers. 25. Trash Enclosures for Non -Residential Uses All trash enclosures for non-residential uses shall be provided and in accordance with the Solid Waste and Recyclable Materials Storage of the Newport Beach Municipal Code. 26. Tennis and Pickleball Club Site Phasing Plan The phasing plan for the tennis club site which consists of the t ennis and Pickleball s lub, villas residential units and bYRgalews hotel rooms shall be subject to a site development review process. 27. Water Service Water service to the PCD will be provided by the City of Newport Beach and will be subject to applicable regulations, permits and fees as prescribed by the City. 7 21-172 3.0 LAND USE AND DEVELOPMENT REGULATIONS 3.1 Golf Club Refer to Exhibit B - Conceptual Master Site Plan for the general location and placement of the golf course and clubhouse. A. Golf Course An 18-hole championship golf course and related facilities (i.e. putting green, driving range, snack bar, starter shack, restroom facilities, etc.). B. Golf Clubhouse and Ancillary Uses 1. Building Area The maximum allowable gross floor area for a golf clubhouse building shall be 56,000 square feet, exclusive of any enclosed golf cart storage areas ramp and washing area. The greens keeper/maintenance buildings, snack bar, separate golf course restroom facilities, starter shack, and similar ancillary buildings are exempt from this development limit. 2. Building Height The maximum allowable building height for the Golf Clubhouse shall be 50 feet and shall be measured in accordance with the Height and Grade definition of Section 2.0 General Conditions and Regulation of the PCD. 3. Permitted Ancillary Uses The following ancillary uses are allowed: • Golf shop • Administrative Offices • Dining, and event areas • Kitchen & Bar areas • Banquet Rooms • Men and Women's Card Rooms • Health and fitness facility • Restroom and Locker facilities • Golf Club storage areas • Employee lounge/lunch areas • Meeting rooms • Golf Cart Parking Storage and Washing Area 10 21-173 • Separate Snack Bar • Separate Starter Shack • Separate Golf Course Restrooms • Hand Carwash Area • Greenskeeper Maintenance Facility • Temporary Construction Facilities • Guard House • Others (subject to an approval of the Community Development Director) 4. Parking Parking for the Golf Course and Golf Clubhouse shall be in accordance with following parking ratios (source: from Table 2 of the Circulation and Parking Evaluation by Kimley-Horn and Associates, Inc., September 2009 for Newport Beach Country Club — Clubhouse Improvement Project): Golf Course: 8 spaces per hole Golf Clubhouse: Dining, assembly & meeting rooms: 1 per 3 seats or 1 per 35 square feet Administrative Office: 4 per 1,000 square feet Pro Shop: 4 per 1,000 square feet Maintenance Facility: 2 per 1,000 square feet Health and Fitness Facility: 4 per 1,000 square feet The design of the parking lot and orientation of vehicular aisles and parking spaces shall be subject to the review and approval of the City Traffic Engineer and Community Development Director. 5. Fencing Golf Course perimeter fencing shall be wrought -iron with a maximum permitted height of six (6) feet. 3.2 Tennis and Pickleball Club Refer to Exhibit B - Conceptual Master Site Plan for the general location and placement of the tennis and pickleball courts and clubhouse. A. The Tennis and Pickleball Courts 1. Number of courts 11 21-174 The maximum allowable tennis courts shall be seven four lighted tennis courts and 14 pickleball courts (12 lighted courts and one lighted stadium with two (2) pickleball courts). (sox lighted nhomnienshin nni Fts and one lighted stainUm_noritor GO Ertl B. Tennis and Pickleball Clubhouse and Ancillary Uses 1. Building Area The maximum allowable gross floor area for the Tennis and Pickleball Clubhouse shall be 3,725 square feet. 2. Building Height The maximum allowable building height for the Tennis and Pickleball Clubhouse shall be 30 feet and shall be measured in accordance with the Height and Grade definition of Section 2.0 General Conditions and Regulations of the PCD. 3. Permitted Ancillary Uses The following ancillary uses are allowed: • Tennis and Pickleball Shop • Administrative Offices • Concessions • Restroom and Locker facilities • Storage areas • Spectator seating • Others (subject to an approval of the Community Development Director) 4. Parking Parking for the Tennis and Pickleball Clubhouse and Courts shall be a minimum of 2-9 72 parking spaces. 3.3. The `,z-: llas Residential Refer to Exhibit B - Conceptual Master Site Plan for the general location and placement of thevillas dwelling units. 12 21-175 A. Detached Residential (The V' 1. Number of Units The maximum allowable number of single-family residential units shall be five (5) two (2). 2. Development Standards The following development standards shall apply to the detached residential units: The VmI',as Residential Development Standards Table V44a. Single -Family V444a Single -Family V44a. Dwelling Dwelling A Dwelling B Unit Designation TTM Lot #1 TTM Lot #2 Lot Size 5,000 square feet minimum Lot Coverage 70% 65% (Maximum) 39 feet, measured in accordance with the Height Building Height and Grade definition of Section 2.0 General Conditions and Regulations Building Side 3 feet minimum Yard Setbacks Building Front and Rear Yard 5 feet minimum Setbacks Enclosed Parking Space for Each 2 2 Unit Open Guest One space - could be located on the private Parking Space for driveway — No overhang to the private street/cul- Each Unit de -sac is allowed 13 21-176 B. Attached Residential 1. Number of Units The maximum allowable number of attached residential units shall be three (3). 2. Development Standards The following development standards shall apply to the detached residential units: Setbacks: 5 feet minimum from any propertyline Height: 46 feet to be located atop of the 2-story hotel buildings) Parking: 3 enclosed spaces and one guest space per dwelling unit 3.4. The Bungalews Hotel Refer to Exhibit B - Conceptual Master Site Plan for the general location and placement of the bURgafews hotel rooms, concierge and guest center, and spa facility. A. Number of IJRits Rooms The maximum allowable number of the B Rgalews rooms shall be 27 , to be built in a clustered setting of single and two-story buildings. B. Permitted Ancillary Uses The following ancillary uses are allowed: • Administrative Offices • Concierge office and guest meeting facility • Performance Therapy Center • Spa and Fitness Center • Swimming pool and Jacuzzi soniing drinks, snacks and light brekfast and IU RGh it�J • Yoga Pavilion C. Building Area The maximum allowable gross floor area for the bungalows hotel rooms shall be 29,300 47,484 square feet with a 2,200 square foot concierge & guest center, 4,686 square feet of ancillary hotel uses, and a 7,500 square -foot spa facility. 14 21-177 D. Building Height The maximum allowable building height for the bUngafows hotel rooms shall be 31 feet, measured in accordance with the Height and Grade definition of Section 2.0 General Conditions and Regulations of the PCD. E. Buildina Setbacks The building setback regYiF8M8Rt shall be a minimum of 5 feet from any property line. F. Parking Parking for the bungalows hotel rooms shall be a minimum of -4 41 parking spaces located in proximity to the use. 3.5 Signs A. Sign Allowance 1. One (1) single or double-faced, ground -mounted entrance identification sign shall be allowed at Newport Beach Tennis Club's main entrance (Country Club Drive and Irvine Terrace). Total maximum signage area shall not exceed seventy-five (75) square feet and shall not exceed five (5) feet in height. 2. One (1) single or double-faced, ground -mounted entrance identification sign shall be allowed at or near the vicinity of the Newport Beach Country Club's secondary entrance (Granville). Total maximum signage area shall not exceed seventy-five (75) square feet and shall not exceed five (5) feet in height. 3. Building identification signs shall be allowed; one for each street frontage. If freestanding, this sign type shall not exceed a maximum height of five (5) feet in height. The maximum signage area shall not exceed seventy (70) square feet. 4. Vehicular and pedestrian directional signs shall be allowed. This sign type may occur as a single -faced or double-faced sign. The sign shall be sized to allow for proper readability given the number of lines of copy, speed of traffic, setback off the road and viewing distance. This sign type shall not exceed a maximum of six (6) feet in height. 5. One (1) single or double faced, ground -mounted identification sign shall be allowed at the entrance road to the Bungalews hotel. Total 15 21-178 maximum signage area shall not exceed seventy-five (75) square feet and shall not exceed five (5) feet in height and fifteen (15) feet in length. B. Sign Standards 1. The design and materials of all permanent signs in the Newport Beach Country Club Planned Community District shall be in accordance with Sign Section 3.5, unless otherwise approved by the Community Development Director. 2. All permanent signs shall be subject to a sign permit issued by the Community Development Department. 3. All signs shall be subject to the review of the City Traffic Engineer to ensure adequate sight distance in accordance with the provisions of the Newport Beach Municipal Code. 4. Sign illumination is permitted for all sign types. No sign shall be constructed or installed to rotate, gyrate, blink or move, or create the illusion of motion, in any fashion. 5. All permanent signs together with the entirety of their supports, braces, guys, anchors, attachments and decor shall be properly maintained, legible, functional and safe with regards to appearance, structural integrity and electrical service. 6. Temporary signs that are visible from any public right-of-way shall be allowed up to a maximum of sixty (60) days and subject to a temporary sign permit issued by the Community Development Department. 7. If the applicant wishes to deviate from the sign standards identified herein, a comprehensive sign program may be prepared or a modification permit application may be submitted for review and consideration by the Zoning Administrator in accordance with the applicable provisions of the Newport Beach Municipal Code. 16 21-179 4.0 SITE DEVELOPMENT REVIEW 4.1 Purpose The purpose of the Site Development Review process is to ensure new development proposals within the Newport Beach Country Club Planned Community Development are consistent with the goals and policies of the General Plan, provisions of this Planned Community Development Plan, the Development Agreement and the findings set forth below in sub -section 4.3. 4.2 Application An approval of Site Development Review application by the Planning Commission shall be required for the construction of any new structure prior to the issuance of a grading or building permit fnr Coastal Commissi Signs, tenant improvements to any existing buildings, kiosks, and temporary structures are exempt from the site development review process and subject to the applicable City's permits. The decision of Planning Commission is the final, unless appealed in accordance with the Newport Beach Municipal Code. 4.3. Findings In addition to the general purposes set forth in sub -section 4.1 and in order to carry out the purposes of this chapter as established by said section, the Site Development Review procedures established by this Section shall be applied according to and in compliance with the following findings: A. The development shall be in compliance with all other provisions of the Planned Community District Plan; B. The development shall be compatible with the character of the neighboring uses and surrounding sites and shall not be detrimental to the orderly and harmonious development of the surroundings and of the City; C. The development shall be sited and designed to maximize the aesthetic quality of the project as viewed from surrounding roadways and properties, with special consideration given to the mass and bulk of buildings and the streetscape on Coast Highway; and 17 21-180 D. Site plan and layout of buildings, parking areas, pedestrian and vehicular access ways, landscaping and other site features shall give proper consideration to functional aspects of site development. 4.4. Contents The Site Development Review application shall include all of the information and materials specified by the Community Development Director and any additional information review by the Planning Commission in order to conduct a thorough review of the project in question. The following plans/exhibits may include, but not limited to the following: 1. An aerial map showing the subject property, adjacent properties and identifying their uses. 2. Comprehensive elevations and floor plans for new structures with coordinated and complimentary architecture, design, materials and colors. 3. A parking and circulation plan showing golf cart and pedestrian paths in addition to streets and fire lanes. 4. A comprehensive, cohesive and coordinated preliminary landscape plan. 5. A comprehensive, cohesive and coordinated lighting plan showing type, location and color of all exterior lighting fixtures. 6. Comprehensive text and graphics describing the design philosophy for the architecture, landscape architecture, material and textures, color palette, lighting, and signage. 7. Text describing drainage and water quality mitigation measures. 8. A statement that the proposed new structure is consistent with the goals, policies, and actions of the General Plan and Planned Community Development Plan. 4.5 Public Hearing —Required Notice A public hearing shall be held on all site development review applications. Notice of such hearing shall be mailed not less than ten (10) days before the hearing date, postage prepaid, using addresses from the last equalized assessment roll or, alternatively, from such other records as contain more recent addresses, to owners of property within a radius of three hundred (300) feet of the exterior boundaries of the subject property. It shall be the responsibility of the applicant to obtain and provide to the City the names and addresses of owners as required by this Section. In addition to the mailed notice, such hearing shall be posted in 21-181 not less than two (2) conspicuous places on or close to the property at least ten (10) days prior to the hearing. 4.6 Expiration and Revocation Site Development Review Approvals 1. Expiration. Any site development review approved in accordance with the terms of this planned community development plan shall expire within twenty-four (24) months from the effective date of final approval as specified in the Time Limits and Extensions Section of the Newport Beach Municipal Code, unless at the time of approval the Planning Commission has specified a different period of time or an extension is otherwise granted. 2. Violation of Terms. Any site development review approved in accordance with the terms of this planned community development plan may be revoked if any of the conditions or terms of such site development review are violated or if any law or ordinance is violated in connection therewith. 3. Public Hearing. The Planning Commission shall hold a public hearing on any proposed revocation after giving written notice to the permittee at least ten (10) days prior to the hearing, and shall submit its recommendations to the City Council. The City Council shall act thereon within sixty (60) days after receipt of the recommendation of the Planning Commission. 4.7. Fees The applicant shall pay a fee as established by Resolution of the Newport Beach City Council to the City with each application for Site Development Review under this planned community development plan. 4.8 Minor Changes by the Director 1. The following minor changes to an approved site plan may be approved by the Director in compliance with Section 20.54.070 (Changes to an approved project) of the Newport Beach Municipal Code: a) Minor relocation of any proposed structure. b) Reduction in the square footage of any structure and a commensurate reduction in required parking, if applicable. c) Reconfiguration of the golf clubhouse parking lot, including drive aisles and/or parking spaces, subject to review and approval of the City Traffic Engineer. d) Reconfiguration of parking lot landscaping. e) Modification of the approved architectural style. f) Any other minor change to the site plan provided it does not 19 21-182 increase any structure area, height, number of units, number of hotel rooms, and/or change of use. 2. Any proposed changes that are not deemed minor shall be subject to review and approval by the Planning Commission. 20 21-183 Exhibit A 21 21-184 Exhibit B a "m k � � F d ■ o CIO r Golf Course ■ v . Gol14e, Tennis & Pickleball Club. 'Ile & It Cq • Hotel, & Residential ISOWrr j),OOj r r dlp � C ~• -• VFW.. 22 SA►u gCA4f�j 21-185 Planning Commission Resolution No. PC2023-014 Paae 21 of 21 EXHIBIT "E" DEVELOPMENT AGREEMENT 21-186 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92663-3884 Attn: City Clerk (Space Above This Line Is for Recorder's Use Only) This Agreement is recorded at the request and for the benefit of the City of Newport Beach and is exempt from the payment of a recording fee pursuant to Government Code §§ 6103 and 27383. DEVELOPMENT AGREEMENT between CITY OF NEWPORT BEACH and GOLF REALTY FUND CONCERNING PROPERTIES REFERENCED AS "TENNIS AND PICKLEBALL CLUB" WITHIN THE NEWPORT BEACH COUNTRY CLUB PLANNED COMMUNITY DISTRICT A 10-00773 03.01.23 21-187 DEVELOPMENT AGREEMENT (Pursuant to California Government Code Sections 65864-65869.5) This DEVELOPMENT AGREEMENT (the "Agreement") is dated for reference purposes as of the _ day of , 2023 (the "Agreement Date"), and is being entered into by and between the City of Newport Beach ("City"), and Golf Realty Fund LP, a California limited partnership "Property Owner"). City and Property Owner are sometimes collectively referred to in this Agreement as the "Parties" and individually as a "Party." RECITALS A. Property Owner is the managing owner of and owns a fee interest in title to that certain real property located in the City of Newport Beach, County of Orange, State of California commonly referred to as 1602 East Coast Highway and more particularly described in the legal description attached as Exhibit "A" and depicted on the site map attached hereto as Exhibit `B" ( "Property"). The Property consists of approximately seven (7) acres and is a part of the Newport Beach Country Club Planned Community District shown on the City's Zoning Map. The Property comprises the area shown on Exhibit B as The Residential Sub -Area, The Tennis and Pickleball Club Sub -Area, and The Hotel Sub -Area. B. In order to encourage investment in, and commitment to, comprehensive planning and public facilities financing, strengthen the public planning process and encourage private implementation of the local general plan, provide certainty in the approval of projects in order to avoid waste of time and resources, and reduce the economic costs of development by providing assurance to property owners that they may proceed with projects consistent with existing land use policies, rules, and regulations, the California Legislature adopted California Government Code sections 65864-65869.5 (the "Development Agreement Statute") authorizing cities and counties to enter into development agreements with persons or entities having a legal or equitable interest in real property located within their jurisdiction. C. On March 13, 2007, the City Council adopted Ordinance No. 2007-6, entitled "Ordinance Amending Chapter 15.45 of City of Newport Beach Municipal Code Regarding Development Agreements" (the "Development Agreement Ordinance"). This Agreement is consistent with the Development Agreement Ordinance. D. The Parties wish to enter into Agreement to include four (4) tennis courts, fourteen (14) pickleball courts, including a stadium (approximately one hundred four feet (104') by one hundred forty-eight feet (148') with two pickleball courts, forty-one (41) hotel rooms, the gross floor area of ancillary hotel uses is fourteen thousand three hundred and eighty-six (14,386) square feet, and construct three (3) attached condominium units and two (2) single-family residences in lieu of five (5) single-family residences. E. As detailed in Section 3 of this Agreement, Property Owner has agreed to provide the following significant public benefits as consideration for this Agreement: Visitor -Serving Uses within the Coastal Zone, and other economic contributions including the payment of a Public Benefit Fee. A10-00773 0 01.06.11 FINAL - I - 21-188 F. This Agreement is consistent with the City of Newport Beach General Plan ("General Plan"), including without limitation the General Plan's designation of the Property as "MU-H3/PR" (Mixed Use Horizontal /(Parks and Recreation) (Anomaly 46), the Coastal Land Use Plan's designation as "MU-H/PR (Mixed Use Horizontal / Parks & Recreation", the Newport Beach Country Club Planned Community District that was adopted in 1997 by Ordinance No. 97- 10 in order to establish appropriate zoning to regulate land use and development of the Property consistent with the General Plan, and the Newport Beach Country Club Planned Community Development Plan No PC2005-002 approved for the Property on March 27, 2012 by Ordinance No. 2012-2. G. In recognition of the significant public benefits that this Agreement provides, the City Council finds that this Agreement: (i) is consistent with the City of Newport Beach General Plan as of the date of this Agreement; (ii) is in the best interests of the health, safety, and general welfare of City, its residents, and the public; (iii) is entered into pursuant to, and constitutes a present exercise of, City's police power; (iv) is consistent and has been approved consistent with the Final Environmental Impact Report for the City of Newport Beach General Plan 2006 Update (State Clearinghouse No. 2006011119), the Mitigated Negative Declaration No. ND2010-008 and for the Newport Beach Country Club Planned Community District (PA2021-260) approved by the City Council on and the Addendum to Mitigated Negative Declaration No. ND2010-008, both of which analyze the environmental effects of the Project on the Property; and (v) is consistent and has been approved consistent with provisions of California Government Code section 65867 and City of Newport Beach Municipal Code chapter 15.45. H. On March 23, 2023, City's Planning Commission held a public hearing on this Agreement, and made findings and determinations with respect to this Agreement, and recommended to the City Council that the City Council approve this Agreement. I. On INSERT DATE, the City Council held a public hearing on this Agreement and considered the Planning Commission's recommendations and the testimony and information submitted by City staff, Property Owner, and members of the public. On INSERT DATE, consistent with applicable provisions of the Development Agreement Statute and Development Agreement Ordinance, the City Council adopted its Ordinance No. 2023- (the "Adopting Ordinance"), finding this Agreement to be consistent with the City of Newport Beach General Plan and approving this Agreement. AGREEMENT NOW, THEREFORE, City and Property Owner agree as follows: Definitions. In addition to any terms defined elsewhere in this Agreement, the following terms when used in this Agreement shall have the meanings set forth below: "Action" shall have the meaning ascribed in Section 8.10 of this Agreement. "Adopting Ordinance" shall mean City Council Ordinance No. 2023-_ approving and adopting this Agreement. 2 21-189 "Agreement" shall mean this Development Agreement, as the same may be amended from time to time. "Agreement Date" shall mean which date is the date the City Council adopted the Adopting Ordinance. "CEQA" shall mean the California Environmental Quality Act (California Public Resources Code Sections 21000-21177) and the implementing regulations promulgated thereunder by the Secretary for Resources (California Code of Regulations, Title 14, Section 15000 et seq.) ("CEQA Guidelines"), as the same may be amended from time to time. "City" shall mean the City of Newport Beach, a California charter city. "City Council" shall mean the governing body of City. "City's Affiliated Parties" shall have the meaning ascribed in Section 10.1 of this Agreement. "Claim" shall have the meaning ascribed in Section 10.1 of this Agreement. "CPI Index" shall mean the Consumer Price Index published from time to time by the United States Department of Labor for all urban consumers (all items) for the smallest geographic area that includes the City or, if such index is discontinued, such other similar index as may be publicly available that is selected by City in its reasonable discretion. "Cure Period" shall have the meaning ascribed in Section 8.1 of this Agreement. "Default" shall have the meaning ascribed to that term in Section 8.1 of this Agreement. "Develop" or "Development" shall mean to improve or the improvement of the Property for the purpose of completing the structures, improvements, and facilities comprising the Project, including but not limited to: grading; the construction of infrastructure and public facilities related to the Project, whether located within or outside the Property; the construction of all of the private improvements and facilities comprising the Project; the preservation or restoration, as required of natural and man-made or altered open space areas; and the installation of landscaping. The terms "Develop" and "Development," as used herein, do not include the maintenance, repair, reconstruction, replacement, or redevelopment of any structure, improvement, or facility after the initial construction and completion thereof. "Development Agreement Ordinance" shall mean Chapter 15.45 of the City of Newport Beach Municipal Code. "Development Agreement Statute" shall mean California Government Code Sections 65864-65869.5, inclusive. "Development Exactions" shall mean any requirement of City in connection with or pursuant to any ordinance, resolution, rule, or official policy for the dedication of land, the construction or installation of any public improvement or facility, or the payment of any fee or 21-190 charge in order to lessen, offset, mitigate, or compensate for the impacts of Development of the Project on the environment or other public interests. "Development Plan" shall mean the amendment to Newport Beach Country Club Planned Community Development Plan (PC-47) adopted pursuant to Ordinance No. 2012-2 and as amended by Ordinance No. 2023- ; General Plan Amendment adopted pursuant to Resolution No. 2023-; amendment to Coastal Development Permit No. CD2017-039 adopted pursuant to Resolution No. 2023- ; and Local Coastal Program Implementation Plan Amendment (also referred to herein as Title 21 of the Newport Beach Municipal Code) adopted pursuant to Resolution No. 2023- but subject to California Coastal Commission final review and approval. "Development Regulations" shall mean the following regulations as they are in effect as of the Agreement Date and to the extent they govern or regulate the development of the Property, but excluding any amendment or modification to the Development Regulations adopted, approved, or imposed after the Agreement Date that impairs or restricts Property Owner's rights set forth in this agreement, unless such amendment or modification is expressly authorized by this Agreement or is agreed to by Property Owner in writing: the General Plan, the Coastal Land Use Plan, the Development Plan, the Local Coastal Program Implementation Plan (Title 21); and, to the extent not expressly superseded by the Development Plan or this Agreement, all other land use and subdivision regulations governing the permitted uses, density and intensity of use, design, improvement, and construction standards and specifications, procedures for obtaining required City permits and approvals for development, and similar matters that may apply to development of the Project on the Property during the Term of this Agreement that are set forth in Title 15 of the Municipal Code (buildings and construction), Title 19 of the Municipal Code (subdivisions). Title 20 of the Municipal Code (planning and zoning) and Title 21 of the Municipal Code (local coastal program implementation plan), but specifically excluding all other sections of the Municipal Code, including without limitation Title 5 of the Municipal Code (business licenses and regulations). Notwithstanding the foregoing, the term "Development Regulations," as used herein, does not include any City ordinance, resolution, code, rule, regulation or official policy governing any of the following: (i) the conduct of businesses, professions, and occupations; (ii) taxes and assessments; (iii) the control and abatement of nuisances; (iv) the granting of encroachment permits and the conveyance of rights and interests which provide for the use of or entry upon public property; or (v) the exercise of the power of eminent domain. "Effective Date" shall mean the latest of the following dates, as applicable: (i) the date that is thirty (30) days after the Agreement Date; (ii) if a referendum concerning the Adopting Ordinance, the Development Plan, or any of the Development Regulations approved on or before the Agreement Date is timely qualified for the ballot and a referendum election is held concerning the Adopting Ordinance or any of such Development Regulations, the date on which the referendum is certified resulting in upholding and approving the Adopting Ordinance and the Development Regulations; (iii) if a lawsuit is timely filed challenging the validity of the Adopting Ordinance, this Agreement, and/or any of the Development Regulations approved on or before the Agreement Date, the date on which said challenge is finally resolved in favor of the validity or legality of the Adopting Ordinance, this Agreement, the Development Plan and/or the applicable Development Regulations, which such finality is achieved by a final non -appealable judgment, voluntary or involuntary dismissal (and the passage of any time required to appeal an involuntary dismissal), or binding written settlement agreement; (iv) the date of final approval of Amendment to the Local Coastal Program Implementation Plan for the Project; or (v) the date of or if a lawsuit 2 21-191 is timely filed challenging the validity or legality of the approval of Amendment to the Local Coastal Program Implementation Plan for the Project, the date on which said challenge is finally resolved in favor of the validity or legality of Amendment to the Local Coastal Program Implementation Plan for the Project, whether such finality is achieved by a final non -appealable judgment, voluntary or involuntary dismissal (and the passage of any time required to appeal an involuntary dismissal), or binding written settlement agreement. Promptly after the Effective Date occurs, the Parties agree to cooperate in causing an appropriate instrument to be executed and recorded against the Property memorializing the Effective Date. "Environmental Laws" means all federal, state, regional, county, municipal, and local laws, statutes, ordinances, rules, and regulations which are in effect as of the Agreement Date, and all federal, state, regional, county, municipal, and local laws, statutes, rules, ordinances, rules, and regulations which may hereafter be enacted and which apply to the Property or any part thereof, pertaining to the use, generation, storage, disposal, release, treatment, or removal of any Hazardous Substances, including without limitation the following: the Comprehensive Environmental Response Compensation and Liability Act of 1980, 42 U.S.C. Sections 9601, et seq., as amended ("CERCLA"); the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976, 42 U.S.C. Sections 6901, et seq., as amended ("RCRA"); the Emergency Planning and Community Right to Know Act of 1986, 42 U.S.C. Sections 11001 et seq., as amended; the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq., as amended; the Clean Air Act, 42 U.S.C. Sections 7401 et se ., as amended; the Clean Water Act, 33 U.S.C. Section 1251, et sue., as amended; the Toxic Substances Control Act, 15 U.S.C. Sections 2601 et seq., as amended; the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. Sections 136 et seq., as amended; the Federal Safe Drinking Water Act, 42 U.S.C. Sections 300f et seq., as amended; the Federal Radon and Indoor Air Quality Research Act, 42 U.S.C. Sections 7401 et seq., as amended; the Occupational Safety and Health Act, 29 U.S.C. Sections 651 et seq., as amended; and California Health and Safety Code Section 25100, et seq. "General Plan" shall mean City's 2006 General Plan adopted by the City Council on July 25, 2006, by Resolution No. 2006-76, as amended through the Agreement Date but excluding any amendment after the Agreement Date that impairs or restricts Property Owner's rights set forth in this Agreement, unless such amendment is expressly authorized by this Agreement, is authorized by Sections 8 or 9, or is specifically agreed to by Property Owner. The Land Use Plan of the Land Use Element of the General Plan was approved by City voters in a general election on November 7, 2006. "Hazardous Substances" means any toxic substance or waste, pollutant, hazardous substance or waste, contaminant, special waste, industrial substance or waste, petroleum or petroleum -derived substance or waste, or any toxic or hazardous constituent or additive to or breakdown component from any such substance or waste, including without limitation any substance, waste, or material regulated under or defined as "hazardous" or "toxic" under any Environmental Law. "Mortgage" shall mean a mortgage, deed of trust, sale and leaseback arrangement, or any other form of conveyance in which the Property, or a part or interest in the Property, is pledged as security and contracted for in good faith and for fair value. 5 21-192 "Mortgaaeg" shall mean the holder of a beneficial interest under a Mortgage or any successor or assignee of the Mortgagee. "Notice of Default" shall have the meaning ascribed in Section 8.1 of this Agreement. "Party" or "Parties" shall mean either City or Property Owner or both, as determined by the context. "Project" shall mean all on -site and off -site improvements that Property Owner is authorized and/or may be required to construct with respect to each parcel of the Property, as provided in this Agreement and the Development Regulations, as the same may be modified or amended from time to time consistent with this Agreement and applicable law. "Property" is described in Exhibit "A" and generally depicted on Exhibit `B" as The Tennis and Pickleball Club, The Residential, and The Hotel Sub -Areas shown on "Exhibit B". "Property Owner" shall mean Golf Realty Fund, a California limited partnership and any successor or assignee, including lessees, to all or any portion of the right, title, and interest of Golf Realty Fund in and to ownership of all or a portion of the Property. "Public Benefit Fee" shall have the meaning ascribed in Section 3.1 of this Agreement. "Subsequent Development Approvals" shall mean all discretionary development and building approvals that Property Owner is permitted to obtain to Develop the Project on and with respect to the Property after the Agreement Date consistent with the Development Regulations. "Term" shall have the meaning ascribed in Section 2.4 of this Agreement. "Termination Date" and "Lot Termination Date" shall have the meaning ascribed in Section 2.4 of this Agreement. "Transfer" shall have the meaning ascribed in Section 11 of this Agreement. 2. General Provisions. 2.1 Plan Consistencv. Zoning Implementation. This Agreement and the Development Regulations applicable to the Property are consistent with the General Plan and the Newport Beach Country Club Planned Community Development Plan (PC-47) as amended by the approvals in the Development Plan adopted concurrently herewith (including but not limited to the amendment to the Newport Beach Country Club Planned Community Development Plan (PC-47). The amendment to the Local Coastal Program Implementation Plan is subject to final review and approval by the California Coastal Commission. 2.2 Binding Effect of Agreement. The Property is hereby made subject to this Agreement. Development of the Property is hereby authorized and shall be carried out in accordance with the terms of this Agreement. 31 21-193 2.3 Property Owner Representations and Warranties Regarding Ownership of the Property and Related Matters Pertaining to this Agreement. Property Owner and each person executing this Agreement on behalf of Property Owner hereby represents and warrants to City as follows: (i) Property Owner or any co-owner comprising Property Owner is a legal entity and that such entity is duly formed and existing and is authorized to do business in the State of California; (ii) if Property Owner or any co-owner comprising Property Owner is a natural person that such natural person has the legal right and capacity to execute this Agreement; (iii) that all actions required to be taken by all persons and entities comprising Property Owner to enter into this Agreement have been taken and that Property Owner has the legal authority to enter into this Agreement; (iv) Property Owner's entering into and performing its obligations set forth in this Agreement will not result in a violation of any obligation, contractual or otherwise, that Property Owner or any person or entity comprising Property Owner has to any third party; (v) that neither Property Owner nor any co-owner comprising Property Owner is the subject of any voluntary or involuntary petition in bankruptcy; and (vi) Property Owner has the authority and ability to enter into or perform any of its obligations set forth in this Agreement. 2.4 Term. The term of this Agreement (the "Term" shall commence on the Effective Date and continue until 20, unless otherwise terminated or modified pursuant to its terms. Notwithstanding any other provision set forth in this Agreement to the contrary, if any Party reasonably determines that the Effective Date will not occur because (i) the Adopting Ordinance or any of the Development Regulations approved on or before the Agreement Date for the Project has/have been disapproved by City's voters at a referendum election or (ii) a final non - appealable judgment is entered in a judicial action challenging the validity or legality of the Adopting Ordinance, this Agreement, the LCPA for the Project and/or any of the Development Regulations for the Project approved on or before the Agreement Date such that this Agreement and/or any of such Development Regulations is/are invalid and unenforceable in whole or in such a substantial part that the judgment substantially impairs such Party's rights or substantially increases its obligations or risks hereunder or thereunder, then such Party, in its sole and absolute discretion, shall have the right to terminate this Agreement upon delivery of a written notice of termination to the other Party, in which event neither Party shall have any further rights or obligations hereunder except that Property Owner's indemnity obligations set forth in Article 10 shall remain in full force and effect and shall be enforceable, and the Development Regulations applicable to the Project and the Property only (but not those general Development Regulations applicable to other properties in the City) shall be repealed by the City after delivery of said notice of termination except for the Development Regulations that have been disapproved by City's voters at a referendum election and, therefore, never took effect. The Termination Date shall be the earliest of the following dates: (i) the tenth (1 oth) anniversary of the Effective Date; (ii) such earlier date that this Agreement may be terminated in accordance with Articles 5, 7, and/or Section 8.3 of this Agreement and/or Sections 65865.1 and/or 65868 of the Development Agreement Statute; or (iii) completion of the Project in accordance with the terms of this Agreement, including Property Owner's complete satisfaction, performance, and payment, as applicable, of all Development Exactions, the issuance of all required final 7 21-194 occupancy permits, and acceptance by City or applicable public agency(ies) or private entity(ies) of all required offers of dedication. Notwithstanding any other provision set forth in this Agreement to the contrary, the provisions set forth in Article 10 and Section 14.11 (as well as any other Property Owner obligations set forth in this Agreement that are expressly written to survive the Termination Date) shall survive the Termination Date of this Agreement. 3. Public Benefits. 3.1 Public Benefit Fee. As consideration for City's approval and performance of its obligations set forth in this Agreement, Property Owner shall pay to City a fee that shall be in addition to any other fee or charge to which the Property and the Project would otherwise be subject to (herein, the "Public Benefit Fee") in the total sum of five hundred two thousand two hundred fifty dollars ($502,250.00) broken down as follows: (i) ninety-three thousand dollars and 00/100 ($93,000.00 per residential dwelling unit) for a sum of four hundred sixty-five thousand dollars and 00/100 ($465,000.00) for the residential units; and (ii) ten dollars and 00/100 ($10.00) per square foot of the three thousand seven hundred twenty-five (3,725) square foot Tennis and Pickleball Clubhouse for a sum of thirty-seven thousand two hundred fifty dollars and 00/100 ($37,250.00), with the unpaid balance of said Public Benefit Fee increased on the first January 1 following the Effective Date of this Agreement by the percentage increase in the CPI Index between the Effective Date and said January lst date (the first "Adjustment Date") and thereafter with the unpaid balance of said Public Benefit Fee increased on each subsequent January 1 during the Term of this Agreement (each, an "Adjustment Date") by the percentage increase in the CPI Index in the year prior to the applicable Adjustment Date. The amount of the percentage increase in the CPI Index on the applicable Adjustment Dates shall in each instance be calculated based on the then most recently available CPI Index figures such that, for example, if the Effective Date of this Agreement falls on July 1 and the most recently available CPI Index figure on the first Adjustment Date (January 1 of the following year) is the CPI Index for November of the preceding year, the percentage increase in the CPI Index for that partial year (a 6-month period) shall be calculated by comparing the CPI Index for November of the preceding year with the CPI Index for May of the preceding year (a 6- month period). In no event, however, shall application of the CPI Index reduce the amount of the Public Benefit Fee (or unpaid portion thereof) below the amount in effect prior to any applicable Adjustment Date. Property Owner shall pay the Public Benefit Fee at the following time(s): (i) As to the residential dwelling units, prior to the issuance of the first building permit for any residential unit; and (ii) as to the Tennis and Pickleball Clubhouse, prior to the issuance of the first building permit. Notwithstanding any other provision set forth in this Agreement to the contrary, during the Term of this Agreement, City shall not increase the Public Benefit Fee except pursuant to the CPI Index as stated in this Section 3.1. The Public Fee Benefit Fee shall be calculated based on the total gross square footage of the Tennis and Pickleball Clubhouse. Property Owner shall not be entitled to any credit or offset to the Public Benefit Fee for any existing buildings or structures. Property Owner acknowledges by its approval and execution of this Agreement that it is voluntarily agreeing to pay the Public Benefit Fee, that its obligation to pay the Public Benefit Fee is an essential term of this Agreement and is not severable from City's obligations and Property Owner's vesting rights to be acquired hereunder, and that Property Owner expressly waives any constitutional, statutory, or common law right it might have in the absence of this Agreement to 21-195 protest or challenge the payment of such fee on any ground whatsoever, including without limitation pursuant to the Fifth and Fourteenth Amendments to the United States Constitution, California Constitution Article I Section 19, the Mitigation Fee Act (California Government Code Section 66000 et seq.), or otherwise. In addition to any other remedy set forth in this Agreement for Property Owner's default, if Property Owner shall fail to timely pay any portion of the Public Benefit Fee when due City shall have the right to withhold issuance of any further building permits, occupancy permits, or other development or building permits for the Development Plan. 3.2 Other Public Benefits. The development of the Project will include the addition of Visitor -Serving Uses consistent with the City's Coastal Land Use Plan and will provide a unique amenity for those visitors whose interests include tennis and pickleball recreational uses. It is anticipated that the Property will continue to host numerous events of significant social and economic benefit to the City, its citizens, businesses and charitable institutions. 4. Development of Project. 4.1 Applicable Regulations; Property Owner's Vested Rights and City's Reservation of Discretion With Respect to Subsequent Development Approvals. Other than as expressly set forth in this Agreement, during the Term of this Agreement, (i) Property Owner shall have the vested right to Develop the Project on and with respect to the Property in accordance with the terms of the Development Regulations and this Agreement and (ii) City shall not prohibit or prevent development of the Property on grounds inconsistent with the Development Regulations or this Agreement. Notwithstanding the foregoing, nothing herein is intended to limit or restrict City's discretion with respect to (i) review and approval requirements contained in the Development Regulations, (ii) exercise of any discretionary authority City retains under the Development Regulations, (iii) the approval, conditional approval, or denial of any Subsequent Development Approvals applied for by Property Owner, or that are required, for Development of the Project as of the Agreement Date provided that all such actions are consistent with the Development Regulations, or (iv) any environmental approvals that may be required under CEQA or any other federal or state law or regulation in conjunction with any Subsequent Development Approvals that maybe required for the Project, and in this regard, as to future actions referred to in clauses (i)-(iv) of this sentence, City reserves its full discretion to the same extent City would have such discretion in the absence of this Agreement. In addition, it is understood and agreed that nothing in this Agreement is intended to vest Property Owner's rights with respect to any laws, regulations, rules, or official policies of any other governmental agency or public utility company with jurisdiction over the Property or the Project; or any applicable federal or state laws, regulations, rules, or official policies that may be inconsistent with this Agreement and that override or supersede the provisions set forth in this Agreement, and regardless of whether such overriding or superseding laws, regulations, rules, or official policies are adopted or applied to the Property or the Project prior or subsequent to the Agreement Date. Property Owner has expended and will continue to expend substantial amounts of time and money in the planning and entitlement process to permit Development of the Project in the future. Property Owner represents and City acknowledges that Property Owner would not make these expenditures without this Agreement, and that Property Owner is and will be making these I 21-196 expenditures in reasonable reliance upon obtaining vested rights to Develop the Project as set forth in this Agreement. Property Owner may apply to City for permits or approvals necessary to modify or amend the Development specified in the Development Regulations, provided that unless this Agreement also is amended, the request does not propose an increase in the maximum density, intensity, height, or size of proposed structures, or a change in use that generates more peak hour traffic or more daily traffic. In addition, Property Owner may apply to City for approval of minor amendments to existing tentative tract maps, tentative parcel maps, or associated conditions of approval, consistent with City of Newport Beach Municipal Code section 19.12.090. This Agreement does not constitute a promise or commitment by City to approve any such permit or approval, or to approve the same with or without any particular requirements or conditions, and City's discretion with respect to such matters shall be the same as it would be in the absence of this Agreement. 4.2 No Conflicting Enactments. Except to the extent City reserves its discretion as expressly set forth in this Agreement, during the Term of this Agreement City shall not apply to the Project or the Property any ordinance, policy, rule, regulation, or other measure relating to Development of the Project that is enacted or becomes effective after the Agreement Date to the extent it conflicts with this Agreement. This Section 4.2 shall not restrict City's ability to enact an ordinance, policy, rule, regulation, or other measure applicable to the Project pursuant to California Government Code Section 65866 consistent with the procedures specified in Section 4.3 of this Agreement. In Pardee Construction Co. v. City of Camarillo (1984) 37 Cal.3d 465, the California Supreme Court held that a construction company was not exempt from a city's growth control ordinance even though the city and construction company had entered into a consent judgment (tantamount to a contract under California law) establishing the company's vested rights to develop its property consistent with the zoning. The California Supreme Court reached this result because the consent judgment failed to address the timing of development. The Parties intend to avoid the result of the Pardee case by acknowledging and providing in this Agreement that Property Owner shall have the vested right to Develop the Project on and with respect to the Property at the rate, timing, and sequencing that Property Owner deems appropriate within the exercise of Property Owner's sole subjective business judgment, provided that such Development occurs in accordance with this Agreement and the Development Regulations, notwithstanding adoption by City's electorate of an initiative to the contrary after the Agreement Date. No City moratorium or other similar limitation relating to the rate, timing, or sequencing of the Development of all or any part of the Project and whether enacted by initiative or another method, affecting subdivision maps, building permits, occupancy certificates, or other entitlement to use, shall apply to the Project to the extent such moratorium or other similar limitation restricts Property Owner's vested rights in this Agreement or otherwise conflicts with the express provisions of this Agreement. 4.3 Reservations of Authority. Notwithstanding any other provision set forth in this Agreement to the contrary, the laws, rules, regulations, and official policies set forth in this Section 4.3 shall apply to and govern the Development of the Project on and with respect to the Property. 10 21-197 4.3.1 Procedural Regulations. Procedural regulations relating to hearing bodies, petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals, and any other matter of procedure shall apply to the Property, provided that such procedural regulations are adopted and applied City-wide or to all other properties similarly situated in City. 4.3.2 Processing and Permit Fees. City shall have the right to charge and Property Owner shall be required to pay all applicable processing and permit fees to cover the reasonable cost to City of processing and reviewing applications and plans for any required Subsequent Development Approvals, building permits, excavation and grading permits, encroachment permits, and the like, for performing necessary studies and reports in connection therewith, inspecting the work constructed or installed by or on behalf of Property Owner, and monitoring compliance with any requirements applicable to Development of the Project, all at the rates in effect at the time fees are due. 4.3.3 Consistent Future City Regulations. City ordinances, resolutions, regulations, and official policies governing Development which do not conflict with the Development Regulations, or with respect to such regulations that do conflict, where Property Owner has consented in writing to the regulations, shall apply to the Property. 4.3.4 Development Exactions Applicable to Property. During the Term of this Agreement, Property Owner shall be required to satisfy and pay all Development Exactions at the time performance or payment is due to the same extent and in the same amount(s) that would apply to Property Owner and the Project in the absence of this Agreement; provided, however, that to the extent the scope and extent of a particular Development Exaction (excluding any development impact fee) for the Project has been established and fixed by City in the conditions of approval for any of the Development Regulations approved on or before the Agreement Date, City shall not alter, increase, or modify said Development Exaction in a manner that is inconsistent with such Development Regulations without Property Owner's prior written consent or as may be otherwise required pursuant to overriding federal or state laws or regulations (Section 4.3.5 hereinbelow). In addition, nothing in this Agreement is intended or shall be deemed to vest Property Owner against the obligation to pay any of the following (which are not included within the definition of "Development Exactions") in the full amount that would apply in the absence of this Agreement: (i) City's normal fees for processing, environmental assessment and review, tentative tract and parcel map review, plan checking, site review and approval, administrative review, building permit, grading permit, inspection, and similar fees imposed to recover City's costs associated with processing, reviewing, and inspecting project applications, plans, and specifications; (ii) fees and charges levied by any other public agency, utility, district, or joint powers authority, regardless of whether City collects those fees and charges; or (iii) community facility district special taxes or special district assessments or similar assessments, business license fees, bonds or other security required for public improvements, transient occupancy taxes, sales taxes, property taxes, sewer lateral connection fees, water service connection fees, new water meter fees, and the Property Development Tax payable under Chapter 3.12 of City's Municipal Code. 4.3.5 Overriding Federal and State Laws and Regulations. Federal and state laws and regulations that override Property Owner's vested rights set forth in this Agreement shall apply to the Property, together with any City ordinances, resolutions, regulations, and official policies that are necessary to enable City to comply with the provisions of any such overriding federal or state laws and regulations, provided that (i) Property Owner does not waive its right to challenge 11 21-198 or contest the validity of any such purportedly overriding federal, state, or City law or regulation; and (ii) upon the discovery of any such overriding federal, state, or City law or regulation that prevents or precludes compliance with any provision of this Agreement, City or Property Owner shall provide to the other Party a written notice identifying the federal, state, or City law or regulation, together with a copy of the law or regulation and a brief written statement of the conflict(s) between that law or regulation and the provisions of this Agreement. Promptly thereafter City and Property Owner shall meet and confer in good faith in a reasonable attempt to determine whether a modification or suspension of this Agreement, in whole or in part, is necessary to comply with such overriding federal, state, or City law or regulation. In such negotiations, City and Property Owner agree to preserve the terms of this Agreement and the rights of Property Owner as derived from this Agreement to the maximum feasible extent while resolving the conflict. City agrees to cooperate with Property Owner at no cost to City in resolving the conflict in a manner which minimizes any financial impact of the conflict upon Property Owner. City also agrees to process in a prompt manner Property Owner's proposed changes to this Agreement, the Project and any of the Development Regulations as may be necessary to comply with such overriding federal, state, or City law or regulation; provided, however, that the approval of such changes by City shall be subject to the discretion of City, consistent with this Agreement. 4.3.6 Public Health and Safety. Any City ordinance, resolution, rule, regulation, program, or official policy that is necessary to protect persons on the Property or in the immediate vicinity from conditions dangerous to their health or safety, as reasonably determined by City, shall apply to the Property, even though the application of the ordinance, resolution, rule regulation, program, or official policy would result in the impairment of Property Owner's vested rights under this Agreement. 4.3.7 Uniform Building Standards. Existing and future building and building - related standards set forth in the uniform codes adopted and amended by City from time to time, including building, plumbing, mechanical, electrical, housing, swimming pool, and fire codes, and any modifications and amendments thereof shall all apply to the Project and the Property to the same extent that the same would apply in the absence of this Agreement. 4.3.8 Public Works Improvements. To the extent Property Owner constructs or installs any public improvements, works, or facilities, the City standards in effect for such public improvements, works, or facilities at the time of City's issuance of a permit, license, or other authorization for construction or installation of same shall apply. 4.3.9 No Guarantee or Reservation of Utility Capacity. Notwithstanding any other provision set forth in this Agreement to the contrary, nothing in this Agreement is intended or shall be interpreted to require City to guarantee or reserve to or for the benefit of Property Owner or the Property any utility capacity, service, or facilities that may be needed to serve the Project, whether domestic or reclaimed water service, sanitary sewer transmission or wastewater treatment capacity, downstream drainage capacity, or otherwise, and City shall have the right to limit or restrict Development of the Project if and to the extent that City reasonably determines that inadequate utility capacity exists to adequately serve the Project at the time Development is scheduled to commence. 5. Amendment or Cancellation of Agreement. This Agreement may be amended or canceled in whole or in part only by mutual written and executed consent of the Parties in compliance with 12 21-199 California Government Code Section 65868 and Newport Beach Municipal Code Section 15.45.070 or by unilateral termination by City in the event of an uncured default of Property Owner. 6. Enforcement. Unless this Agreement is amended, canceled, modified, or suspended as authorized herein or pursuant to California Government Code section 65869.5, this Agreement shall be enforceable by either Party despite any change in any applicable general or specific plan, zoning, subdivision, or building regulation or other applicable ordinance or regulation adopted by City (including by City's electorate) that purports to apply to any or all of the Property. 7. Annual Review of Property Owner's Compliance With Agreement. 7.1 General. City shall review this Agreement once during every twelve (12) month period following the Effective Date for compliance with the terms of this Agreement as provided in Government Code Section 65865.1. Property Owner (including any successor to the Property Owner executing this Agreement on or before the Agreement Date) shall pay City a reasonable fee in an amount City may reasonably establish from time to time to cover the actual and necessary costs for the annual review. City's failure to timely provide or conduct an annual review shall not constitute a Default hereunder by City. 7.2 Property Owner Obligation to Demonstrate Good Faith Compliance. During each annual review by City, Property Owner is required to demonstrate good faith compliance with the terms of the Agreement. Property Owner agrees to furnish such evidence of good faith compliance as City, in the reasonable exercise of its discretion, may require, thirty (30) days prior to each anniversary of the Effective Date during the Term. 7.3 Procedure. The Zoning Administrator shall conduct a duly noticed hearing and shall determine, on the basis of substantial evidence, whether or not Property Owner has, for the period under review, complied with the terms of this Agreement. If the Zoning Administrator finds that Property Owner has so complied, the annual review shall be concluded. If the Zoning Administrator Ends, on the basis of substantial evidence, that Property Owner has not so complied, written notice shall be sent to Property Owner by first class mail of the Zoning Administrator's finding of non-compliance, and Property Owner shall be given at least ten (10) calendar days to cure any noncompliance that relates to the payment of money and thirty (30) calendar days to cure any other type of noncompliance. If a cure not relating to the payment of money cannot be completed within thirty (30) calendar days for reasons which are beyond the control of Property Owner, Property Owner must commence the cure within such thirty (30) calendar days and diligently pursue such cure to completion. If Property Owner fails to cure such noncompliance within the time(s) set forth above, such failure shall be considered to be a Default and City shall be entitled to exercise the remedies set forth in Article 8 below. 7.4 Annual Review a Non -Exclusive Means for Determining and Requiring Cure of Property Owner's Default. 13 21-200 The annual review procedures set forth in this Article 7 shall not be the exclusive means for City to identify a Default by Property Owner or limit City's rights or remedies for any such Default. Events of Default. 8.1 General Provisions. In the event of any material default, breach, or violation of the terms of this Agreement ("Default"), the Party alleging a Default shall deliver a written notice (each, a "Notice of Default") to the defaulting Party. The Notice of Default shall specify the nature of the alleged Default and a reasonable manner and sufficient period of time (ten (10) calendar days if the Default relates to the failure to timely make a monetary payment due hereunder and not less than thirty (30) calendar days in the event of non -monetary Defaults) in which the Default must be cured ("Cure Period"). During the Cure Period, the Party charged shall not be considered in Default for the purposes of termination of this Agreement or institution of legal proceedings. If the alleged Default is cured within the Cure Period, then the Default thereafter shall be deemed not to exist. If a non -monetary Default cannot be cured during the Cure Period with the exercise of commercially reasonable diligence, the defaulting Party must promptly commence to cure as quickly as possible, and in no event later than thirty (30) calendar days after it receives the Notice of Default, and thereafter diligently pursue said cure to completion. Notwithstanding the foregoing, the City is not required to give Property Owner notice of default and may immediately pursue remedies for a Property Owner Default that result in an immediate threat to public health, safety or welfare. 8.2 Default by Property Owner. If Property Owner is alleged to have committed a non -monetary Default and it disputes the claimed Default, it may make a written request for an appeal hearing before the City Council within ten (10) days of receiving the Notice of Default, and a public hearing shall be scheduled at the next available City Council meeting to consider Property Owner's appeal of the Notice of Default. Failure to appeal a Notice of Default to the City Council within the ten (10) day period shall waive any right to a hearing on the claimed Default. If Property Owner's appeal of the Notice of Default is timely and in good faith but after a public hearing of Property Owner's appeal the City Council concludes that Property Owner is in Default as alleged in the Notice of Default, the accrual date for commencement of the thirty (30) day Cure Period provided in Section 8.1 shall be extended until the City Council's denial of Property Owner's appeal is communicated to Property Owner in writing. 8.3 CitV's Option to Terminate Agreement. In the event of an alleged Property Owner Default, City may not terminate this Agreement without first delivering a written Notice of Default and providing Property Owner with the opportunity to cure the Default within the Cure Period, as provided in Section 8.1, and complying with Section 8.2 if Property Owner timely appeals any Notice of Default. A termination of this Agreement by City shall be valid only if good cause exists and is supported by evidence presented to the City Council at or in connection with a duly noticed public hearing to establish the existence of a Default. The validity of any termination may be judicially challenged by Property Owner. Any such judicial challenge must be brought within thirty (30) days of service on Property Owner, 14 21-201 by first class mail, postage prepaid, of written notice of termination by City or a written notice of City's determination of an appeal of the Notice of Default as provided in Section 8.2. 8.4 Default by City. If Property Owner alleges a City Default and alleges that the City has not cured the Default within the Cure Period, Property Owner may pursue any equitable remedy available to it under this Agreement, including, without limitation, an action for a writ of mandamus, injunctive relief, or specific performance of City's obligations set forth in this Agreement. Upon a City Default, any resulting delays in Property Owner's performance hereunder shall neither be a Property Owner Default nor constitute grounds for termination or cancellation of this Agreement by City and shall, at Property Owner's option (and provided Property Owner delivers written notice to City within thirty (30) days of the commencement of the alleged City Default), extend the Term for a period equal to the length of the delay. 8.5 Waiver. Failure or delay by either Party in delivering a Notice of Default shall not waive that Party's right to deliver a future Notice of Default of the same or any other Default. 8.6 Specific Performance Remedy Due to the size, nature, and scope of the Project, it will not be practical or possible to restore the Property to its pre-existing condition once implementation of this Agreement has begun. After such implementation, both Property Owner and City may be foreclosed from other choices they may have had to plan for the development of the Property, to utilize the Property or provide for other benefits and alternatives. Property Owner and City have invested significant time and resources and performed extensive planning and processing of the Project in agreeing to the terms of this Agreement and will be investing even more significant time and resources in implementing the Project in reliance upon the terms of this Agreement. It is not possible to determine the sum of money which would adequately compensate Property Owner or City for such efforts. For the above reasons, City and Property Owner agree that damages would not be an adequate remedy if either City or Property Owner fails to carry out its obligations under this Agreement. Therefore, specific performance of this Agreement is necessary to compensate Property Owner if City fails to carry out its obligations under this Agreement or to compensate City if Property Owner falls to carry out its obligations under this Agreement. 8.7 Monetary Damages. The Parties agree that monetary damages shall not be an available remedy for either Party for a Default hereunder by the other Party; provided, however, that (i) nothing in this Section 8.7 is intended or shall be interpreted to limit or restrict City's right to recover the Public Benefit Fees due from Property Owner as set forth herein; and (ii) nothing in this Section 8.7 is intended or shall be interpreted to limit or restrict Property Owner's indemnity obligations set forth in Article 10 or the right of the prevailing Party in any Action to recover its litigation expenses, as set forth in Section 8.10. In no event shall damages be awarded against the City upon an event of default or upon termination of this Agreement. Developer expressly agrees that the City, any City agencies and their respective elected and appointed councils, boards, commissions, officers, agents, employees, volunteers and representatives (collectively, for purposes of this Section 8.7, 15 21-202 "City") shall not be liable for any monetary damage for a Default by the City or any claims against City arising out of this Agreement. Developer hereby expressly waives any such monetary damages against the City. The sole and exclusive judicial remedy for Developer in the event of a Default by the City shall be an action in mandamus, specific performance, or other injunctive or declaratory relief. 8.8 Additional City Remedy for Property Owner's Default. In the event of any Default by Property Owner, in addition to any other remedies which may be available to City, whether legal or equitable, City shall be entitled to receive and retain any Development Exactions applicable to the Project or the Property, including any fees, grants, dedications, or improvements to public property which it may have received prior to Property Owner's Default without recourse from Property Owner or its successors or assigns. 8.9 No Personal Liability, o�y Officials, Employees, or Agents. _ No City official, employee, or agent shall have any personal liability hereunder for a Default by City of any of its obligations set forth in this Agreement. 8.10 Recovery of Legal Expenses by Prevailing Party in Any Action. In any judicial proceeding, arbitration, or mediation (collectively, an "Action") between the Parties that seeks to enforce the provisions of this Agreement or arises out of this Agreement, the prevailing Party shall not recover any of its costs and expenses, regardless of whether they would be recoverable under California Code of Civil Procedure section 1033.5 or California Civil Code section 1717 in the absence of this Agreement. These costs and expenses include, but are not limited to, court costs, expert witness fees, attorneys' fees, City staff costs (including overhead), and costs of investigation and preparation before initiation of the Action. 9. Force Majeure. Neither Party shall be deemed to be in Default where failure or delay in performance of any of its obligations under this Agreement is caused, through no fault of the Party whose performance is prevented or delayed, by floods, earthquakes, other acts of God, fires, wars, riots or similar hostilities, strikes or other labor difficulties, state or federal regulations, or court actions. Except as specified above, nonperformance shall not be excused because of the act or omission of a third person. In no event shall the occurrence of an event of force majeure operate to extend the Term of this Agreement. In addition, in no event shall the time for performance of a monetary obligation, including without limitation Property Owner's obligation to pay Public Benefit Fees, be extended pursuant to this Section. 10. Indemnity Oblie-ations of Pronertv Owner. 10.1 Indemnity Arising From Acts or Omissions of Pronertv Owner. Property Owner shall indemnify, defend, and hold harmless City and City's officials, employees, agents, attorneys, and contractors (collectively, the "City's Affiliated Parties") from and against all suits, claims, liabilities, losses, damages, penalties, obligations, and expenses (including but not limited to attorneys' fees and costs) (collectively, a "Claim") that may arise, 21-203 directly or indirectly, from the acts, omissions, or operations of Property Owner or Property Owner's agents, contractors, subcontractors, agents, or employees in the course of Development of the Project or any other activities of Property Owner relating to the Property or pursuant to this Agreement. City shall have the right, in its sole discretion, to select and retain counsel to defend any Claim filed against City and/or any of City's Affiliated Parties, and Property Owner shall pay the reasonable cost for defense of any Claim. The indemnity provisions in this Section 10.1 shall commence on the Agreement Date, regardless of whether the Effective Date occurs, and shall survive the Termination Date. 10.2 Third Party Litigation. In addition to its indemnity obligations set forth in Section 10.1, Property Owner shall indemnify, defend, and hold harmless City and City's Affiliated Parties from and against any Claim against City or City's Affiliated Parties seeking to attack, set aside, void, or annul the approval of this Agreement, the Adopting Ordinance, any of the Development Regulations for the Project (including without limitation any actions taken pursuant to CEQA with respect thereto), any Subsequent Development Approval, or the approval of any permit granted pursuant to this Agreement. Said indemnity obligation shall include payment of attorney's fees, expert witness fees, City staff costs, and court costs. City shall promptly notify Property Owner of any such Claim and City shall cooperate with Property Owner in the defense of such Claim. If City fails to promptly notify Property Owner of such Claim, Property Owner shall not be responsible to indemnify, defend, and hold City harmless from such Claim until Property Owner is so notified and if City fails to cooperate in the defense of a Claim Property Owner shall not be responsible to defend, indemnify, and hold harmless City during the period that City so fails to cooperate or for any losses attributable thereto. City shall be entitled to retain separate counsel to represent City against the Claim and the City's defense costs for its separate counsel shall be included in Property Owner's indemnity obligation, provided that such counsel shall reasonably cooperate with Property Owner in an effort to minimize the total litigation expenses incurred by Property Owner. In the event either City or Property Owner recovers any attorney's fees, expert witness fees, costs, interest, or other amounts from the party or parties asserting the Claim, Property Owner shall be entitled to retain the same (provided it has fully performed its indemnity obligations hereunder). The indemnity provisions in this Section 10.2 shall commence on the Agreement Date, regardless of whether the Effective Date occurs, and shall survive the Termination Date. 10.3 Environmental Indemnity. In addition to its indemnity obligations set forth in Section 10.1, from and after the Agreement Date Property Owner shall indemnify, defend, and hold harmless City and City's Affiliated Parties from and against any and all Claims for personal injury or death, property damage, economic loss, statutory penalties or fines, and damages of any kind or nature whatsoever, including without limitation attorney's fees, expert witness fees, and costs, based upon or arising from any of the following: (i) the actual or alleged presence of any Hazardous Substance on or under any of the Property in violation of any applicable Environmental Law; (ii) the actual or alleged migration of any Hazardous Substance from the Property through the soils or groundwater to a location or locations off of the Property; and (iii) the storage, handling, transport, or disposal of any Hazardous Substance on, to, or from the Property and any other area disturbed, graded, or developed by Property Owner in connection with Property Owner's Development of the Project. The foregoing indemnity obligations shall not apply to any Hazardous Substance placed or stored 17 21-204 on a separate legal lot within the Property after the Lot Termination Date for said lot, as provided in Section 2.4 of this Agreement. The indemnity provisions in this Section 10.3 shall commence on the Agreement Date, regardless of whether the Effective Date occurs, and shall survive the Termination Date. 11. Assignment. Property Owner shall have the right to sell, transfer, or assign (hereinafter, collectively, a "Transfer") Property Owner's interest in or fee title to the Property, in whole or in part, to any person, partnership, joint venture, firm, or corporation (which successor, as of the effective date of the Transfer, shall become the "Property Owner" under this Agreement) at any time from the Agreement Date until the Termination Date; provided, however, that no such Transfer shall violate the provisions of the Subdivision Map Act (Government Code Section 66410 et seq.) or City's local subdivision ordinance and any such Transfer shall include the assignment and assumption of Property Owner's rights, duties, and obligations set forth in or arising under this Agreement as to the Property or the portion thereof so Transferred and shall be made in strict compliance with the following conditions precedent: (i) no transfer or assignment of any of Property Owner's rights or interest under this Agreement shall be made unless made together with the Transfer of all or a part of the Property; and (ii) prior to the effective date of any proposed Transfer, Property Owner (as transferor) shall notify City, in writing, of such proposed Transfer and deliver to City a written assignment and assumption, executed in recordable form by the transferring and successor Property Owner and in a form subject to the reasonable approval of the City Attorney of City (or designee), pursuant to which the transferring Property Owner assigns to the successor Property Owner and the successor Property Owner assumes from the transferring Property Owner all of the rights and obligations of the transferring Property Owner with respect to the Property or portion thereof to be so Transferred, including in the case of a partial Transfer the obligation to perform such obligations that must be performed off of the portion of the Property so Transferred that are a condition precedent to the successor Property Owner's right to develop the portion of the Property so Transferred. Any Permitted Transferee shall have all of the same rights, benefits, duties, obligations, and liabilities of Developer under this Agreement with respect to the portion of, or interest in, the Property sold, transferred, and assigned to such Permitted Transferee; provided, however, that in the event of a Transfer of less than all of the Property, or interest in the Property, no such Permitted Transferee shall have the right to enter into an amendment of this Agreement that jeopardizes or impairs the rights or increases the obligations of the Developer with respect to the balance of the Property, without Developer's written consent. Notwithstanding any Transfer, the transferring Property Owner shall continue to be jointly and severally liable to City, together with the successor Property Owner, to perform all of the transferred obligations set forth in or arising under this Agreement unless the transferring Property Owner is given a release in writing by City, which release shall be only with respect to the portion of the Property so Transferred in the event of a partial Transfer. City shall provide such a release upon the transferring Property Owner's full satisfaction of all of the following conditions: (i) the transferring Property Owner no longer has a legal or equitable interest in the portion of the Property so Transferred other than as a beneficiary under a deed of trust; (ii) the transferring Property Owner is not then in Default under this Agreement and no condition exists that with the passage of time or the giving of notice, or both, would constitute a Default hereunder; (iii) the transferring Property Owner has provided City with the notice and the fully executed written and recordable assignment 21-205 and assumption agreement required as set forth in the first paragraph of this Section 11; and (iv) the successor Property Owner either (A) provides City with substitute security equivalent to any security previously provided by the transferring Property Owner to City to secure performance of the successor Property Owner's obligations hereunder with respect to the Property or the portion of the Property so Transferred or (B) if the transferred obligation in question is not a secured obligation, the successor Property Owner either provides security reasonably satisfactory to City or otherwise demonstrates to City's reasonable satisfaction that the successor Property Owner has the financial resources or commitments available to perform the transferred obligation at the time and in the manner required under this Agreement and the Development Regulations for the Project. Any determination by the City in regards to the second paragraph of Section 11 subpart (iv) (A) and/or (B) shall be documented in writing. 12. Mortgagee Riizhts. 12.1 Encumbrances on Pronertv. The Parties agree that this Agreement shall not prevent or limit Property Owner in any manner from encumbering the Property, any part of the Property, or any improvements on the Property with any Mortgage securing financing with respect to the construction, development, use, or operation of the Project. 12.2 Mortgagee Protection. This Agreement shall be superior and senior to the lien of any Mortgage. Nevertheless, no breach of this Agreement shall defeat, render invalid, diminish, or impair the lien of any Mortgage made in good faith and for value. Any acquisition or acceptance of title or any right or interest in the Property or part of the Property by a Mortgagee (whether due to foreclosure, trustee's sale, deed in lieu of foreclosure, lease termination, or otherwise) shall be subject to all of the terms and conditions of this Agreement. Any Mortgagee who takes title to the Property or any part of the Property shall be entitled to the benefits arising under this Agreement. 12.3 Mortgagee Not Obligated. Notwithstanding the provisions of this Section 12.3, a Mortgagee will not have any obligation or duty under the terms of this Agreement to perform the obligations of Property Owner or other affirmative covenants of Property Owner, or to guarantee this performance except that: (i) the Mortgagee shall have no right to develop the Project under the Development Regulations without fully complying with the terms of this Agreement; and (ii) to the extent that any covenant to be performed by Property Owner is a condition to the performance of a covenant by City, that performance shall continue to be a condition precedent to City's performance. 12.4 Notice of Default to Mortgagee; Right of Mortgagee to Cure. Each Mortgagee shall, upon written request to City, be entitled to receive written notice from City of. (i) the results of the periodic review of compliance specified in Article 7 of this Agreement, and (ii) any default by Property Owner of its obligations set forth in this Agreement. Each Mortgagee shall have a further right, but not an obligation, to cure the Default within ten (10) days after receiving a Notice of Default with respect to a monetary Default and within 19 21-206 thirty (30) days after receiving a Notice of Default with respect to a non -monetary Default. If the Mortgagee can only remedy or cure a non -monetary Default by obtaining possession of the Property, then the Mortgagee shall have the right to seek to obtain possession with diligence and continuity through a receiver or otherwise, and to remedy or cure the non -monetary Default within thirty (30) days after obtaining possession and, except in case of emergency or to protect the public health or safety, City may not exercise any of its judicial remedies set forth in this Agreement to terminate or substantially alter the rights of the Mortgagee until expiration of the thirty (30)-day period. In the case of a non -monetary Default that cannot with diligence be remedied or cured within thirty (30) days, the Mortgagee shall have additional time as is reasonably necessary to remedy or cure the Default, provided the Mortgagee promptly commences to cure the non - monetary Default within thirty (30) days and diligently prosecutes the cure to completion. 20 21-207 13. Bankruptcy. The obligations of this Agreement shall not be dischargeable in bankruptcy. 14. Miscellaneous Terms. 14.1 Reserved. 14.2 Notices. Any notice or demand that shall be required or permitted by law or any provision of this Agreement shall be in writing. If the notice or demand will be served upon a Party, it either shall be personally delivered to the Party; deposited by a reliable courier service that provides a receipt showing date and time of delivery with courier charges prepaid. The notice or demand shall be addressed as follows: TO CITY: City of Newport Beach 100 Civic Center Drive Newport Beach, California 92660 Attn: City Manager With a copy to: City of Newport Beach 100 Civic Center Drive Newport Beach, California 92660 Attn: City Attorney TO PROPERTY OWNER: Golf Realty Fund One Upper Newport Plaza Newport Beach, California 92660 Attn: Robert O'Hill With a copy to: Either Party may change the address stated in this Section 13.1 by delivering notice to the other Party in the manner provided in this Section 13.1, and thereafter notices to such Party shall be addressed and submitted to the new address. Notices delivered in accordance with this Agreement shall be deemed to be delivered upon the earlier of. (i) the date received or (iii) three business days after deposit in the mail as provided above. 14.3 Project as a Private Undertaking. Any future Development of the Project is a private undertaking. Neither Party will be acting as the agent of the other in any respect, and each Party will be an independent contracting entity with respect to the terms, covenants, and conditions set forth in this Agreement. This Agreement forms no partnership, joint venture, or other association of any kind. The only relationship between the Parties is that of a government entity regulating the Development of private property by the owner or user of the Property. 21 21-208 14.4 Cooperation. Each Party shall cooperate with and provide reasonable assistance to the other Party to the extent consistent with and necessary to implement this Agreement. Upon the request of a Party at any time, the other Party shall promptly execute, with acknowledgement or affidavit if reasonably required, and file or record the required instruments and writings and take any actions as may be reasonably necessary to implement this Agreement or to evidence or consummate the transactions contemplated by this Agreement. 14.5 Estonnel Certificates. At any time, either Party may deliver written notice to the other Party requesting that that Party certify in writing that, to the best of its knowledge: (i) this Agreement is in full force and effect and is binding on the Party; (ii) this Agreement has not been amended or modified either orally or in writing or, if this Agreement has been amended, the Party providing the certification shall identify the amendments or modifications; and (iii) the requesting Party is not in Default in the performance of its obligations under this Agreement and no event or situation has occurred that with the passage of time or the giving of Notice or both would constitute a Default or, if such is not the case, then the other Party shall describe the nature and amount of the actual or prospective Default. The Party requested to furnish an estoppel certificate shall execute and return the certificate within thirty (30) days following receipt. Requests for the City to furnish an estoppel certificate shall include reimbursement for all administrative costs incurred by the City including reasonable attorney's fees incurred by the City in furnishing an estoppels certificate. 14.6 Rules of Construction. The singular includes the plural; the masculine and neuter include the feminine; "shall" is mandatory; and "may" is permissive. 14.7 Time Is of the Essence. Time is of the essence regarding each provision of this Agreement as to which time is an element. 14.8 Waiver. The failure by a Party to insist upon the strict performance of any of the provisions of this Agreement by the other Party, and failure by a Party to exercise its rights upon a Default by the other Party, shall not constitute a waiver of that Party's right to demand strict compliance by the other Party in the future. 14.9 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be identical and may be introduced in evidence or used for any other purpose without any other counterpart, but all of which shall together constitute one (1) and the same agreement. 22 21-209 14.10 Entire Agreement. This Agreement constitutes the entire agreement between the Parties and supersedes all prior agreements and understandings, both written and oral, between the Parties with respect to the subject matter addressed in this Agreement. 14.11 Severability. The Parties intend that each and every obligation of the Parties is interdependent and interrelated with the other, and if any provision of this Agreement or the application of the provision to any Party or circumstances shall be held invalid or unenforceable to any extent, it is the intention of the Parties that the remainder of this Agreement or the application of the provision to persons or circumstances shall be rendered invalid or unenforceable. The Parties intend that neither Party shall receive any of the benefits of the Agreement without the full performance by such Party of all of its obligations provided for under this Agreement. Without limiting the generality of the foregoing, the Parties intend that Property Owner shall not receive any of the benefits of this Agreement if any of Property Owner's obligations are rendered void or unenforceable as the result of any third party litigation, and City shall be free to exercise its legislative discretion to amend or repeal the Development Regulations applicable to the Property and Property Owner shall cooperate as required, despite this Agreement, should third party litigation result in the nonperformance of Property Owner's obligations under this Agreement. The provisions of this Section 14.11 shall apply regardless of whether the Effective Date occurs and after the Termination Date. 14.12 Construction. This Agreement has been drafted after negotiation and revision. Both City and Property Owner are sophisticated parties who were represented by independent counsel throughout the negotiations or City and Property Owner had the opportunity to be so represented and voluntarily chose to not be so represented. City and Property Owner each agree and acknowledge that the terms of this Agreement are fair and reasonable, taking into account their respective purposes, terms, and conditions. This Agreement shall therefore be construed as a whole consistent with its fair meaning and applicable principle or presumptions of contract construction or interpretation, if any, shall be used to construe the whole or any part of this Agreement in favor of or against either Party. 14.13 Successors and Assigns: Constructive Notice and Acceptance. The burdens of this Agreement shall be binding upon, and the benefits of this Agreement shall inure to, all successors in interest to the Parties to this Agreement. All provisions of this Agreement shall be enforceable as equitable servitudes and constitute covenants running with the land. Each covenant to do or refrain from doing some act hereunder with regard to Development of the Property: (i) is for the benefit of and is a burden upon every portion of the Property; (ii) runs with the Property and each portion thereof; and (iii) is binding upon each Party and each successor in interest during its ownership of the Property or any portion thereof. Every person or entity who now or later owns or acquires any right, title, or interest in any part of the Project or the Property is and shall be conclusively deemed to have consented and agreed to every provision of this Agreement. This Section 14.13 applies regardless of whether the instrument by which such person 23 21-210 or entity acquires the interest refers to or acknowledges this Agreement and regardless of whether such person or entity has expressly entered into an assignment and assumption agreement as provided for in Section 11. 14.14 No Third Party Beneficiaries. The only Parties to this Agreement are City and Property Owner. This Agreement does not involve any third party beneficiaries, and it is not intended and shall not be construed to benefit or be enforceable by any other person or entity. 14.15 Applicable Law and Venue. This Agreement shall be construed and enforced consistent with the internal laws of the State of California, without regard to conflicts of law principles. Any action at law or in equity arising under this Agreement or brought by any Party for the purpose of enforcing, construing, or determining the validity of any provision of this Agreement shall be filed and tried in the Superior Court of the County of Orange, State of California, or the United States District Court for the Central District of California. The Parties waive all provisions of law providing for the removal or change of venue to any other court. 14.16 Section Headings. All section headings and subheadings are inserted for convenience only and shall not affect construction or interpretation of this Agreement. 14.17 Incorporation of Recitals and Exhibits. All of the Recitals are incorporated into this Agreement by this reference. Exhibits A and B are attached to this Agreement and incorporated by this reference as follows: EXHIBIT DESCRIPTION DESIGNATION A Legal Description of Property B Depiction of the Property 14.18 Recordation. The City Clerk of City shall record this Agreement and any amendment, modification, or cancellation of this Agreement in the Office of the County Recorder of the County of Orange within the period required by California Government Code section 65868.5 and City of Newport Beach Municipal Code section 15.45.090. The date of recordation of this Agreement shall not modify or amend the Effective Date or the Termination Date. 24 21-211 ATTEST: Leilani L Brown City Clerk APPROVED AS TO FORM: Aaron C. Harp, City Attorney SIGNATURE PAGE TO DEVELOPMENT AGREEMENT "PROPERTY OWNER" GOLF REALTY FUND, a California limited partnership By: O Hill Capital, a California limited partnership Its General Partner By: Robert O Hill, General Partner "CITY" CITY OF NEWPORT BEACH Ra Its: Mayor 25 21-212 STATE OF CALIFORNIA COUNTY OF ORANGE On , before me, the undersigned, a Notary Public in and for said State, personally appeared and , personally known to me to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacities and that by their signature on the instrument the persons, or the entity upon behalf of which the persons acted, executed the instrument. Witness my hand and official seal. Notary Public in and for said County and State STATE OF CALIFORNIA COUNTY OF ORANGE On , before me, the undersigned, a Notary Public in and for said State, personally appeared and , personally known to me to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacities and that by their signature on the instrument the persons, or the entity upon behalf of which the persons acted, executed the instrument. Witness my hand and official seal. Notary Public in and for said County and State -26- 21-213 EXHIBIT A LEGAL DESCRIPTION OF PROPERTY The Property: PARCELS A, B, C AND D OF PARCEL MAP 2016-151, LOCATED IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, RECORDED IN BOOK 402 PAGES 24 THROUGH 32 INCLUSIVE OF PARCEL MAPS, RECORDS OF SAID COUNTY. A10-00773 v4 01.06.11 FINAL 21-214 EXHIBIT B DEPICTION OF PROPERTY A10-00773 v4 01.06.11 FINAL 21-215 Attachment I Planning Commission Correspondence 21-216 Planning Commission - March 23, 2023 Item No. 2a - Additional Materials Received Tennis and Pickleball Club at Newport Beach Project Amendment (PA2021-260) Mira Mesa Shopping Center - West, LLC 8294 Mira Mesa Blvd. San Diego, California 92126 Office (858) 271-4682 Fax (858) 271-5161 March 20, 2023 DELIVERED VIA U.S. MAIL & EMAIL: planningcommissioners@newportbeachca.gov Curtis Ellmore, Chair Newport Beach Planning Commission City of Newport Beach 100 Civic Center Drive P.O. Box 1768 Newport Beach, CA 92658-8915 Re: March 23, 2023, Planning Commission Agenda Objection to Agenda Item No. 2 Project No. PA2021-260 Dear Chair Ellmore and Honorable Planning Commissioners: We write to express our objection to Golf Realty Fund, LP's ("GRF") processing of the project that is before you as Agenda Item No. 2 on your March 23rd agenda. We own 50% of the fee interest in the property at 1602 East Coast Highway ("Tennis Property"), where The Tennis and Pickleball Club at Newport Beach is located. Our co-owner GRF owns the other 50% of the Tennis Property; Robert O Hill represents GRF. We along with GRF hold our ownership interests in the Tennis Property as tenants in common. We are engaged in an arbitration with GRF to establish rights of the owners under our private Owners in Common Agreement for the Tennis Property. An issue in the arbitration is whether GRF has the legal authority under our agreement to apply for and process the plans and entitlements for the Tennis Property before the Planning Commission on March 23, 2023, without our consent. GRF believes it can, and we view things differently. That said, we recognize this is a private dispute between private parties, and we are not seeking to involve the City in our dispute. Instead, we simply seek to preserve our legal position through our objection to GRF's planning application. Also, we feel it is necessary to again state for the record that we have no plans for an apartment or condominium project at the Tennis Property, nor are we seeking, as part of the arbitration, to force Mr. O Hill to go along with an apartment or condominium project. When we attended the City's Planning Commission hearing on September 8, 2022, we expressed to City staff and commissioners our long-term commitment to pickleball at the Tennis Property. It may not have been so clear to us a year or two ago, but with the pickleball boom and explosion in membership at the tennis and pickleball club (the "Club") it has been apparent to us for some time now that the Club has developed a passionate community of pickleball members. We want to keep that going and give the Club members the first-class facility they deserve. Back in September, we presented Mr. O Hill with a long-term lease with Mario Marovic to operate the Club in its current form. Mario has a proven track record in Newport Beach and 21-217 Planning Commission - March 23, 2023 Item No. 2a - Additional Materials Received Tennis and Pickleball Club at Newport Beach Project Amendment (PA2021-260) we think he would be a fantastic operator for the Club. The proposed lease with Mario has an initial term of 10 years, with the potential to extend up to 20 years. Mario has committed to significantly upgrade the club's facilities for its members and to keep the Club focused on pickleball and tennis. We sent this lease to Mr. O Hill but he has not consented to it, and so it is also part of the owners' arbitration. Our arbitration hearing is set to begin in July, and we hope our ownership issues will be resolved then. Thank you for your consideration of our letter. We appreciate your service to our City. Sincerely, VU& 57eu U&4(2 Brett Feuerstein as Manager of Mesa Shopping Center -East, LLC and Mira Mesa Shopping Center -West, LLC R%49&TA9X Ryan Chase Representative of Fainbarg III, LP cc: Grace K. Leung, City Manager (gleung@newportbeachca.gov) Seimone Jurjis, Community Development Director (sjurjis@newportbeachca.gov) Robert O Hill, Golf Realty Fund (roh@golfrealtyfund.com) Page 2 of 2 21-218 Planning Commission - March 23, 2023 Item No. 2c - Additional Materials Received Tennis and Pickleball Club at Newport Beach Project Amendment (PA2021-260) March 23, 2023, Planning Commission Item 2 Comments These comments on a Newport Beach Planning Commission agenda item are submitted by: Jim Mosher ( jimmosher(a�yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229). Item No. 2. TENNIS AND PICKLEBALL CLUB AT NEWPORT BEACH PROJECT AMENDMENT (PA2021-260) As I commented when the previous iteration of this proposal was heard by the Planning Commission on September 8, 2022, and by the City Council on September 27, 1 do not believe staff's analysis of the Charter Section 423 (Greenlight) implications of this potential approval is correct. Specifically, per Section 423 and the implementing Council Policy A-18, the Greenlight analysis is triggered by general plan amendments, not by project or development agreement approvals. Page 2 of the March 21, 2023, staff memo entitled "Item No. 2: Tennis and Pickleball Club Revisions" proposes adding a footnote to General Plan Table LU2 saying "27 rooms converted from 17 tennis courts per Council Resolution 2012-10." However, Resolution No. 2012-10, approved by the Council as Item 14 on January 24, 2012, was (unlike the competing Item 15 for enlarging the adjacent golf clubhouse at the same meeting) not presented as a General Plan amendment, was not subject to a Charter Section 423 analysis, and, most importantly, did not result in any subsequent Greenlight tracking. It seems disingenuous for staff to suggest that the processing of the current proposal allows the changes to Anomaly 46 that were neither analyzed nor tracked in 2012 to slip through without ever being analyzed or tracked. In other words, everything beyond the 24 tennis courts, 3,725 sf of (non-residential) development and 5 residential units approved for Anomaly 46 by voters in 2006 is something being added to our General Plan for the first time by the present action. As a result, the proposed legislation would alter our current General Plan, not as staff shows in its Table 2 on handwritten page 12 of the staff report, but rather by removing 6 courts and adding 41 hotel rooms to Statistical Area L1, and the Charter Section 423 analysis needs to reflect that. If done that way, I believe the conclusion would be that voter approval of the amendment is required. Additional comments: Even if one accepted (which I do not) staff's assumption that the General Plan had already been amended to reflect the "2012 project," it is hard to believe their conclusion in the lower right corner of handwritten page 12 that the new tracking table should show that with 80% of the PM Peak Hour Trips added by the present incremental change plus the prior amendments in the last 10 years being 84.16, the number remaining would be 53.14. 21-219 Planning Commission - March 23, 2023 Item No. 2c - Additional Materials Received Tennis and Pickleball Club at Newport Beach Project Amendment (PA2021-260) March 23, 2023, PC agenda Item 2 comments - Jim Mosher Page 2 of 2 I believe the number remaining by their logic would be 100 - 84.16 = 15.84. But again, the correct analysis would be to consider the effect of removing 6 courts and adding 41 hotel rooms. 2. In making that analysis, I seem to recall that when the previous proposal was before the City Council one of the concerns expressed by staff and some of the Council members was that since it is a new sport, no one had studied the trip generation or parking requirements of a pickleball court versus a tennis court, so a pause for further evaluation would be needed. It appears that further evaluation has not yet occurred, and the two kinds of courts are being rather arbitrarily treated as if they were the same. 3. I also seem to recall that when the previous proposal was before the City Council, Mr. O Hill assured the pickleball players he had no plan to remove any of the existing pickleball courts. I am not a pickleball player, but going from 31 to 18 seems like a substantial reduction to me. 21-220 Attachment J Project Plans 21-221 - o V TO TENNIS L CbURTS �` REFRE MENT L 14 TOTAL 13 HOTEL UNITS PICKLE PICKLE BALL 1 HOTEL UNIT + 1 CONDO COURTS 2 SINGLE a� o FAMILY HOMES.y F \ 9TH PRACTICE 2 NEW STADIUMPIlGKLE BA THE GOLF CLUB TEE SUB -AREA PUTTING8 l .1`i COURTS, GREEN.y r -� TENNIS CLUBHO SE GREEN -- ; _ — + e�.. �,PA FITNESS TI cot 9 HOTEL UNITS + 2 NDOS GREEN : , -= �4 -ni' . k •'[ - - - - - - •'C.)J _ 1 TEL UNIT e C CiU8V14USEaR�NE I}= I .r" 9'- _..r'uJ • :a — - _ - � , , I I y 11 I i I L I_i ' _• . _ � -- - - .. _ � � , �E - --_'''J' I _I T�'{�yt' - pACIFiC COAST H4GHwAY NEWPORT BEACH COUNTRY CLUB 4 TENNIS BALL COURTS 14 PICKLE BALL COURTS Nov. 15, 2022 21-222 / P / / a fOA� i 13 P / + ai / ll,/ °f� S°tbac/ @' 6 P p P � b1ag S V etback10 P 9" 1 SINGLE FAMILY HOME setback to tract b0undry Villa B 1� "I TT n �7TF� s p / P ® o \p P p9, � / ° o zero curb @ � loading area 9' x 17' parking stall t p. (2' - 6" overhang) / � P / IS CL HOUSE / FIT SS CENTER Pef P ® P / P® P / P P / q P / P / / / Master Site Plan 1 " = 30' -0" iF k Y i T E B T A ARCHITECTS OWNER NBCC L+I One Upper Newport Beach Plaza Newport Beach, CA 92660 NBCC Planned Community 3-11 Clubhouse Drive Newport Beach, CA 92660 Master Site Plan CURRENT ISSUE DATE: EET 01 /11 /2023 Clouded Revisions Number Date Description AS 21-223 22 UNDERGROUND STALLS (18 FOR HOTEL + 4 FOR CONDO) cktotractW6rj 12 -e sett' Setback �� • t0 tact boundry 8 bldg. setback bldg Setback 5' ` 4 L 1 2 STREET SPOTS — FOR VI LLA A "°A�,r 1 SINGLE FAMILY' HOME Villa B 2-CA 554 STALLS: PARKING EASEMENT WITH CORPORATE PLAZA WEST FOR USE OF 554 STALLS DURING WEEKNIGHTS, WEEKENDS, AND HOLIDAYS RAnotnr Citn Dlnn E B T A ARCH I T E C T S OWNER NBCC L+I One Upper Newport Beach Plaza Newport Beach, CA 92660 NBCC Planned Community 3-11 Clubhouse Drive Newport Beach, CA92660 Master Site Plan I SUEENT DATE:EET 01/11/2023 Clouded Revisions Number Date Description AS 21-224 Master Site Plan - Blow U 1/16" = V-0" SOUND BARRIER SPECIFICATIONS: MATERIAL — QUILTED FIBERGLASS CORE WITH VINYL -COATED FIBERGLASS -CLOTH FACING AND VINYL NOISE BARRIER PATTERN- QUILTED DIAMOND PATTERN THICKNESS — BSC-25: NOMINAL -1"ABSORPTIVE FACING OPTIONS AND 1 LB VINYL BARRIER SIZES — BSC-25 CURTAIN (QUILTING ON BOTH SIDES) — STANDARD: (2 PIECES) 48" WIDE X 96"H EACH TO CREATE 96" X 96" BARRIER. COLOR — STANDARD PVC FACING — GRAY FLAMMABILITY — CLASS A FIRE RATED PER ASTM E84 INSTALLATION — HOOK AND LOOP FASTENERS, GROMMET HANGERS, CURTAIN SPANPORT HARDWARE. GROMMETS — STANDARD BRASS. ID: 9/16" GROMMET CENTER 1 '/4" DOWN FROM TOP OF PANEL WEIGHT-96 LBS DIMENSIONS — 49 X 25 x 14 IN FACING THICKNESS —1" BARRIER DENSITY —1 LB t C Y E B T A A R C H I T E C T S OWNER NBCC L+I One Upper Newport Beach Plaza Newport Beach, CA 92660 NBCC Planned Community 3-11 Clubhouse Drive Newport Beach, CA 92660 SITE PLAN BLOW-UP CURRENT SSUEDATE:EET 01/18/2023 Clouded Revisions Number Date Description A001 21-22%1 i PHASING PLANS r _j 1 I 2 I 3 1 4 I 5 1 \l,.l CLUB IOUSE I 1 I I I L-- 1 n r-- I I I l i j I I I I I IM 1 9 1 10 1 1 1 I I C� R 1 1 I f 1 I 1 I I 'Ff 1 P--mil L I 1 __ �---1---�----i--_—�—__� I TEMPORARY MODULAR I 1 I 1 I I I I I TENNIS OFFICE 1 .^-2- 1 1 1 1FI 1 I I I I 1 1 1 I I I 1 1 1 14 1 - 1 I� 1. I I I I 1 1 1 f I I I I TEMPORARY PORTABLE TOILETS L___ I I I I I f I ! I n I I 1 I I 1 1 1 1 1 I I 1 1 S 1 1 1 1 1 1 1 1 1 1 1 1 1 1 TEMPORARY MODULAR ' CONSTRUCTION OFFICE 0 40 80 FT North PHASE I -INSTALLATION SCHEDULE - 1ST WEEK ■ 1 tennis court removed 15 tennis courts available • 31 pickleball courts available • Temporary Modular Tennis Office • Temporary Modular Construction Office • Temporary Portable Toilets LEGEND ❑ - new building ❑ - new sitework ❑ - existing structures {on property) - parking - public access - vehicle - public access - pedestrian - construction access N BCC Planned Community 22 CORPORATE PARK EXHIBIT su1rE 200 MINE . CA . 92606 4 9999553282 E B T A WWW.EBTA.00M 1 of ARCHITECTS March 6, 2023 21-226 CONSTRUCTION OFFICE To REMAIN E P � r HIM ,I A AN 0 40 84 FT North PHASING PLANS PHASE II - DEMOLITION SCHEDULE - 1ST MONTH ■ Demolish Tennis Club buildings • Demolish portion of Tennis Club parking lot (99 spaces removed, 23 remain) • 15 tennis courts removed C tennis courts available • 7 pickleball courts removed 24 pickleball courts available LEGEND n - existing area to be demolished ❑ - existing structures (on property) - parking - public access - vehicle - - public access - pedestrian - construction access N BCC Planned Community 22 CORPORATE PARK EXHIBIT S U I T E 2 0 9 MINE CA 92605 1 M 94 955 3282 4 E B T A WWW.EBTA.00M 2 of 5 ARCHITECTS .,a" 21-227 f I ! 1 4 ! 5 1 PERIMETER TENNIS I I FENCE REMAINS _ �� 9 I 10 i f�� L---- - 1 CONSTRUCTION IF — y — — GATE / I,r — —ir -- i — . II � j 14 1 1 15 1 16 1 f/�� ! ❑ II I I CONSTRUCTION — FENCE CONSTRUCTION GATE 0 vle �o CONSTRUCTION — GATE Illl I I Ij II I � TENNIS CLUBHOUSE SPA z C LIGHT COURTS 5,10,15,16 0 40 80 FT North PHASING PLANS PHASE III - SITEWORK SCHEDULE - 2ND - 3RD MONTHS • Rough grading • Utilities LEGEND ❑ - new building ❑ - new sitework ❑ - existing structures (on property) @ - parking - public access - vehicle - public access - pedestrian - construction access NBCC Planned Community - 22 CORPORATE PARK EXHIBIT sulrE 2oa IRVINE . CA . 92506 4 s+s.sss.3:s2 E S T A WWW,E6TA.CON 3 of 5 ARCHITECTS March 6, 2023 21_228 BUNGALOW LOFTS BUNGALOWS f / I 1 j I 1 4 1 5 1 1 �I C) c� 1 T , PARCEL 4 I I PM2016-151 1 1 TRACT 15347 I _. 9 1 10 1 I I LIGHT COURTS 5, 10, 15, 16 o [ lII —y- -r— BOLL T ERI - 1 0 I 1 1 I F 8 STADIUM 11 I I I I - 1 14 1 15 1 16 1 [ { ut II I i II II ❑ II I I ..............l I I ! L-LLLLLLLLLL---" \TENNIS CLUBHOUSE SPA 0 40 84 Fr PHASING PLANS PHASE IV - CONSTRUCTION SCHEDULE - 4TH - 16TH MONTHS • new Bungalows - 19 boutique hotel units ■ new Bungalow Lofts - 9 lofts - 2 penthouses ■ Bungalow Pool • Nick Bolletieri Stadium Court • 2 pickleball courts added 26 pickleball courts available • private street from Country Club Dr to Villas and Fairway Lofts • new Tennis Clubhouse and West Parking Lot LEGEND ❑ - new building ❑ - new sitework ❑ - existing structures {on property) - parking - public access - vehicle - public access - pedestrian - construction access N BCC Planned Community 22 CORPORATE PARR EXHIBIT sulrE 2oa MINE . CA 92605 4 949.9553282 E B T A WWW.EBTA.COM 4ofL ARCHITECTS March 6, 2023 21-229 FAIRWAY I i' LOFTSA VILLAS BUNGALOW LOFTS t 0 a MA N Mal lion 'TENNIS CLUBHOUSE SPA K f -- 0 40 80 Fr North PHASING PLANS PHASE V - DEMOLITION + CONSTRUCTION SCHEDULE - 8TH - 20TH MONTHS • new Villas - 2 single family homes ■ new Fairway Lofts - 13 lofts - 1 penthouse ■ new Mayacama Bungalow • 4 tennis courts available • 14 pickleball courts available • Demolish remaining portion of Tennis Club parking lot for new East Parking Lot LEGEND 3 - new building ❑ - new sitework ❑ - existing structures (on property) 0 - parking - public access - vehicle - public access - pedestrian - construction access NBCC Planned Community 22 101101111 PARK EXHIBIT sulrE zoo IRVINE . CA . 92606 4 949.955.3282 E B T A www,E9TA.00M 5 of 5 ARC H11 CCYS "' 21-230