HomeMy WebLinkAboutSS2 - Acquisition of Dunes LeaseholdCITY OF NEWPORT BEACH
STUDY SESSION ITEM NO. SS 2-
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Homer L. Bludau, City Manager
DATE: September 11, 2001
SUBJECT: Council Review of Staffs Preliminary Assessment of City
Acquisition of Dunes Leasehold
It has been a challenge to gather and provide information regarding the Newport
Dunes property and leasehold in a way in which you can develop a comfort level
in either continuing or discontinuing the idea of a leasehold purchase.
The information provided is a compilation of information from leases, the
Settlement Agreement and amendments, the recent project EIR done on the 450
room hotel project and financial reports. I apologize for the variation in quality of
copies and the lack of consistency information appearance, but given the time
and circumstances, it was the best I could do. I hope it serves its intended
purpose.
The report contains the following informational sections:
1. Pertinent background information (Page 1)
a. Historical Use of Site (Page 1)
b. Redevelopment Plan (Page 2)
c. Settlement Agreement (Page 2)
d. Newport Dunes Site Features (Page 3)
2. Newport Dunes Planned Community (PC) District General
Overview and Specific Permitted Uses (Page 6)
a. Planning Units 1 -5 (Page 9)
b. Comparison of Facilities and Structures — Existing vs.
Settlement Agreement (Page 20)
3. Lease Information (Page 23)
4. Proposed Sale and Financial Information (Page 25)
5. Newport Dunes Settlement Agreement and Amendments (Page 27)
6. Map of Newport Dunes Resort (Page 90)
City Hall • 3300 Newport Boulevard • Post Office Box 1768 • Newport Beach, California 92659 -1768
Council Review of Staffs Preliminary Assessment of
City Acquisition of Dunes Leasehold
ISSUE:
Staff has begun looking at preliminary information relating to the Newport Dunes
leasehold in an effort to make an assessment of a potential City purchase of the
leasehold from the Newport Dunes and Webster Hotel Building Partnership.
After reviewing this preliminary information, Council should provide direction to
the City Manager to either discontinue the assessment or to continue the
assessment, to include the identification of potential options for lease purchase.
PERTINENT BACKGROUND INFORMATION:
As a means of providing the context for discussion on the potential purchase of
the Newport Dunes leasehold, the City Manager is presenting some basic
information regarding the site and the leasehold.
Leasehold Ownership:
The Newport Dunes leasehold is held by the Newport Dunes Partnership. The
Newport Dunes Partnership ( "Dunes "), a California general partnership, was
formed in March 1988 upon the liquidation of Newport Dunes, Inc. The principal
asset of Dunes is the leasehold interest in a 100 -acre parcel of property located
at the corner of Pacific Coast Highway and Jamboree in Newport Beach,
California, known as the Newport Dunes. The land is leased from the County of
Orange and is presently operated as a recreational vehicle park and marina.
Webster Hotel Building Partnership, a California general partnership, owns 100%
of Newport Dunes Marina ( "Marina "). During 1989, a sublease from Dunes to
operate a 230 boat slip marina at Newport Dunes was acquired from an
unrelated third party by Webster. The renovation and expansion of Marina from
230 boat slips to 430 boat slips was completed in 1991. Webster also owns 25%
of Newport Dunes Partnership.
Historical Use of Newport Dunes Site:
With the exception of a small portion of uplands, the Newport Dunes site consists
entirely of State tidelands that were granted to the County of Orange under the
terms and conditions of Chapter 526 of California State Statutes of 1919. The
use of tidelands is governed by the statute and subsequent amendments
contained in Chapter 315, Statutes of 1975. The terms and conditions of the
tidelands grant specify that the tidelands are:
For the establishment, improvement, and conduct of a public harbor, and
for the construction, maintenance, and operation thereon of ... structures
and appliances necessary or convenient for the promotion or
accommodation of commerce and navigation.
For the establishment, improvement, and conduct of public bathing
beaches, public marinas, public aquatic playgrounds, and similar
recreational facilities open to the public and for the construction,
reconstruction, repair, maintenance, and operation of all works, buildings,
facilities, utilities, structures, and appliances identical... thereto.
Prior to 1955, the site consisted of a saltwater marsh area surrounding a shallow
bottomed lagoon, which was connected to the Upper Newport Bay by a narrow
channel. The marsh area was subject to tidal flow during periods of extreme high
tide. In 1955, the Orange County Harbor Department initiated a two -year
dredging operation that created the present -day Swimming Lagoon and sand
beach. In 1958, following the completion of the dredging, the County leased the
site to a private operator, Newport Dunes Inc., and its subleasees developed the
site with a marina, boat launch, boat storage, RV park, swimming beach, and
other related facilities.
Redevelopment Plan:
Beginning in 1976, the County of Orange and Newport Dunes, Inc., initiated a
redevelopment plan for the Newport Dunes Resort with the goal of enlarging or
improving the existing facilities and constructing new facilities. This process
culminated in December 1980, with the conceptual approval by the County Board
of Supervisors of a Newport Dunes Recreational and Development Plan for the
property that included construction of a motel or family inn with 350 rooms, and
"meeting rooms" with a seating capacity of 400 persons, plus four additional
coffee shops and snack bars, the upgrading and enlargement of the recreational
vehicle area, and construction of a marina village with additional marina slips.
Settlement Agreement:
In February 1981, the City of Newport Beach instituted litigation against the
County and Newport Dunes, Inc., alleging inadequacy of the EIR and arguing
that the Newport Dunes Recreational and Development Plan required the
approval of the City. As a result of this action, the City, County and Newport
Dunes, Inc. (predecessor of Newport Dunes Partnership) signed a Settlement
Agreement in May 1983, which reduced the scope of the project and named the
City as the agency with jurisdiction over land use decisions for the property. The
County of Orange, as the property owner, is the landlord from which the tenant,
the Newport Dunes Partnership, leases the property. The Settlement Agreement
(as amended in 1984, 1987, 1988, and most recently 1990) limited the expansion
of the Newport Dunes Resort facilities to the uses outlined.
Z
The Newport Dunes Partnership began implementation of the Newport Dunes
Recreation and Development Plan in 1989, and the majority of the project site
has been developed with the improvements called for in the Newport Dunes
Recreation and Development Plan. The Family Inn and restaurants are the only
major improvements that remain to be completed and constitute the bulk of the
floor area permitted under the Development Plan.
Newport Dunes Site Features:
The Dunes leasehold site includes the adoption of the Newport Dunes Planned
Community District Plan for the 100 -acre Newport Dunes Resort, along with a
30 -acre portion designated for hotel development. The key physical features of
the site are as follows:
Back Bay Drive
Back Bay Drive runs from Jamboree Road to Eastbluff Drive. it is two
lanes wide between Jamboree Road and the entrance to the Upper
Newport Bay Ecological Reserve. At the reserve boundary, it becomes a
one -way road sharing the right -of -way with a two -way bicycle and
pedestrian path. The bicycle path connects with the bicycle trail that runs
along the southern edge of the Newport Dunes Resort and then continues
to Bayside Drive.
Bayside Drive
Bayside Drive is a two lane commuter road with an 80 foot right -of -way.
The road currently connects the west side of the project site to Coast
Highway. South of Coast Highway, Bayside Drive runs along Newport
Bay to Corona del Mar.
Bayside Landing
Bayside Landing is located on the north side of Bayside Drive, west of the
DeAnza Bayside Village Mobile Home Park and adjacent to the Upper Bay
Bridge. The site is used for boat and RV storage and small boat rentals.
In addition, Pearson's Port, a fish market, is located on the water adjacent
to the storage area.
DeAnza Bayside Village Mobile Home Park
The DeAnza Bayside Village Mobile Home Park is located adjacent to
Coast Highway. The mobile home park was restricted to seniors age 55
or older; however, after August 12, 2001, the mobile home park became
13
open to tenants of all ages. Bayside Drive bisects the mobile home park
into two sections where it connects Coast Highway to the project site.
Family Inn Project
The Family Inn Project is a 275 room "family inn" up to 500,000 square
feet in size on the site. The Family Inn Project is entitled through the 1983
Settlement Agreement, most recently amended in 1990, which also allows
for a total of up to 27,500 square feet of restaurant space on the west side
of the Swimming Lagoon.
Lower Bayview Landing
The Lower Bayview Landing site is located at the southwest comer of
Jamboree Road and Back Bay Drive, adjacent to the main entrance to the
Newport Dunes Resort. The Lower Bayview Landing property is currently
owned by The Irvine Company.
Newport Dunes Marina
The Newport Dunes Marina (Marina) consists of 450 boat slips on the
Upper Newport Bay. The Marina administrative offices, clubhouse, and
restrooms, are located on the west side of the Swimming Lagoon. There
are 488 automobile parking spaces on the west side of the Swimming
Lagoon that currently serve the Marina.
Newport Dunes Marina Dredging Disposal Basin
The Newport Dunes Marina Dredging Disposal Basin is located on the
future hotel site north of the RV Resort, west of the Swimming Lagoon,
and south of the interim boat storage area. The dredging disposal basin,
made up of 10 to 15 foot high slopes surrounding a basin, was created
through the dredging of the Newpot Dunes Marina in 1980. The dredging
disposal basin is in the process of being removed under permits with the
Army Corps of Engineers. Removal of the dredging disposal basin is
being conducted by the County of Orange under separate permits.
Newport Dunes Recreational Vehicle Resort
The Newport Dunes Recreational Vehicle Resort (RV Resort) is a
campground within the Newport Dunes Resort that caters primarily to
large recreational vehicles. The RV Resort is located south and west of
the Swimming Lagoon, and has vehicular access from Back Bay Drive.
Swimming Lagoon
The Swimming Lagoon at the Newport Dunes Hotel and Time -Share
Resort was created through a County dredging operation in 1958. The
ten -acre Swimming Lagoon is located in the center of the Resort, and is a
focal point for the uses that surround it. This water body creates a natural
separation between the boat launch and day use beach on the east side,
the Marina and Hotel and Time -Share Resort site on the west side, and
the RV Resort to the south.
Upper Bayview Landing
The Upper Bayview Landing site is located at the intersection of Coast
Highway and Jamboree Road, adjacent to and above the Newport Dunes
RV Resort and Lower Bayview Landing. It is being planned for use as a
City View Park.
Upper Newport Bay Ecological Reserve
The Upper Newport Bay Ecological Reserve (Reserve) is one of the
largest coastal estuaries along the Southern California coast. The
Reserve encompasses the waters and flats of Newport Bay from
Jamboree Road, where San Diego Creek drains into the Bay, to the Upper
Bay Bridge where Coast Highway separates the Upper Newport Bay from
the Newport Harbor (Lower Newport Bay). The Reserve is home to many
rare and sensitive wildlife species.
5
07/13/99 11:33 AM
Part 7 Land Uses, Development Standards & Procedures
Section I. Introduction
NEWPORT DUNES PLANNED COMMUNITY DISTRICT
The Newport Dunes Planned Community District is comprised of
the approximately 100 acre Newport Dunes Resort ( "Newport
Dunes Planned Community" or "Newport Dunes Planned
Community District "). The Newport Dunes Planned Community
shall be governed by this Newport Dunes Planned Community
( "PC ") District Plan set forth herein which includes Part 1: Land
Uses, Development Standards & Procedures and Part 2: Design
Guidelines (the "PC District Plan. ")
Newport Dunes Resort is a long standing, visitor serving aquatic -
oriented resort community located in the City of Newport Beach.
The Newport Dunes Resort site ( "Site ") comprises approximately
100 acres along Upper Newport Bay and is serviced by Jamboree
Road via Back Bay Drive and Pacific Coast Highway via Bayside
Drive. The Site is leased from the County of Orange by a private
resort developer and operator and is partially developed.
Figure I
Newport Dunes Planned Community District Plan 1
9
07/13/99 11:33 AM
Part 1 Land Uses, Development Standards & Procedures
Section I. Introduction
A. Existing and Proposed Uses
The intent of the Newport Dunes Planned Community is to provide
a visitor serving, aquatic - oriented, mixed use destination resort,
with "villages" defined by use, within the Resort Site. Existing
uses within the Newport Dunes Resort Site include: a 10 -acre
swimming beach; a mile -long pedestrian promenade around the
swimming lagoon; day use facilities with parking and beach
restrooms; a restaurant; a 450 -slip marina; a recreational vehicle
resort and village center; swimming pools; meeting space; boat
storage and launching facilities; support services, and parking.
Proposed uses include a resort hotel and time -share facility with
associated retail and services; health club; eating and drinking
establishments; as well as other associated visitor serving, aquatic-
oriented, resort uses.
Existing Newport Dunes Resort, 1998
Figure 2
Newport Dunes Planned Community District Plan
J
07113199 11:33 AM
Part 1 Land Uses, Development Standards & Procedures
Section I. Introduction
B. Governmental Agencies
The Site is located within the City of Newport Beach and,
therefore, is subject to the City's General Plan and Municipal
Code. The Site also is within the Coastal Zone and is, therefore,
subject to the California Coastal Act and the jurisdiction of the
California State Coastal Commission. The City of Newport Beach
is responsible for implementing the Local Coastal Program. The
County of Orange serves as the landowner and responsible agency
for the lease, settlement agreement and other ownership
responsibilities.
C. Purpose of The Newport Dunes Planned
Community District Plan
The City of Newport Beach Municipal Code allows a "Planned
Community District" (Chapter 20.35) to address land use
designations and regulations in Planned Communities. The
Newport Dunes PC District Plan serves as the controlling
ordinance for the Site. The PC District Plan is designed to be
consistent and in conformance with the City of Newport Beach
General Plan and Municipal Code and is authorized and intended
to implement the "Planned Community District" regulations of the
City of Newport Beach Municipal Code.
The specific purposes of the Newport Dunes PC District are found
in Section 20.35.010 of the Municipal Code as follows:
"A. To provide for the classification and development of
parcels of land as coordinated, comprehensive projects so
as to take advantage of the superior environment which can
result from large -scale community planning;
B. To allow diversification of land uses as they relate to
each other in a physical and environmental arrangement
while insuring substantial compliance with the spirit, intent
and provisions of this Code;
C. To include various types of land uses, consistent with
the general plan, through the adoption of a development
Newport Dunes Planned Community District
0
07113/99 11:33 AM
Part 1 Land Uses, Development Standards & Procedures
Section I. Introduction
plan and text materials which set forth land use
relationships and development standards."
The Newport Dunes PC District Plan achieves the three purposes
set forth above by:
A. Providing for the classification and development of the
Site in five Planning Units which provides a coordinated,
comprehensive project and takes advantage of large scale
community planning. The PC District Plan combines
provisions for the orderly site planning and development,
protection of sensitive and natural habitats, innovative
design concepts, design guidelines for consistent treatments
and a logical and timely sequence of community and
governmental review and input;
B. Allowing for diversification of land uses in the five
Planning Units as they relate to each other in the physical
and environmental arrangement along the Upper Newport
Bay while insuring substantial compliance with the spirit,
intent and provisions of the Municipal Code;
C. Including various types of land uses, as set forth in
Figure 3 and Section III.0 consistent with the General Plan,
through the adoption of this PC District Plan and the
implementing Precise Plans setting forth land use
relationships and development standards set forth in
Section W.
D. Project Approval Summary
Precise Plans processed pursuant to this PC District Plan will be
reviewed as set forth in Section V of this PC District Plan, as
summarized below:
PC District Plan
a. Scope and Purpose. The Newport Dunes PC District Plan
covers the entire 100 acre Resort Site Planned Community and
includes both existing and proposed land uses. The PC District
Plan divides the Planned Community into five (5) Planning Units,
Newport Dunes Planned Community District Plan 4
5
07173199 77:33 AM
Peril Land Uses, Development Standards & Procedures
Section I. Introduction
based upon existing use and/or areas of geographic similarities.
Subsequent Precise Plans will cover at least one Planning Unit.
Planning Units are delineated as:
1. Planning Unit 1 — Resort Hotel & Time -Share
2. Planning Unit 2 — Recreational Vehicle Resort and
Village Center
3. Planning Unit 3 — Day Use/Beach/Lagoon
4. Planning Unit 4 — Boat Launch & Dry Boat Storage
S. Planning Unit 5 — Marina
Key
1 11 Resort Hotel 8 TimeShans
Recreational Vehicle Resort;
Wage Centel
®Day Use, Beach 8
Lagoon
EilBoat Launch 8
nry Rnat crnn
K.AmarGa
Planning Units �`�
Figure 3
R-3
Planning Unit Delineation
This PC District Plan is uie overall land use regulation for the
entire Planned Community. It serves as the basis for all decisions
and contains the statistical summary for the Newport Dunes
Planned Community and each Planning Unit. Likewise, it provides
a method for review and input from the community and
governmental agencies on the relationship of uses on the Site.
Newport Dunes Planned Community District Plan 5
/d
Part 1 Land Uses, Development Standards & Procedures
Section I. Introduction
b. Process. The PC District Plan is approved and may be
amended or updated in accordance with the procedures set forth in
Municipal Code Chapter 20.35.
2. Conceptual Precise Plan
a. Scope and Purpose. The Conceptual Precise Plan
addresses one or more Planning Units and may consider both
existing and proposed land uses. The Conceptual Precise Plan is
designed to allow a project to be brought before the Planning
Commission at a point in the conceptual design process which
allows early input of policy guidance from the City staff and the
community's representatives.
The Conceptual Precise Plan would address the important major
features of the project, the larger scale decisions and the macro
level determinations. The Conceptual Precise Plan will give policy
guidance to the Planning Director for her review and
administrative approval of the detailed Final Precise Plans.
The Conceptual Precise Plan allows the decision - makers, staff, and
community an opportunity to review and make input on the merits
of the project proposal at an early and logical stage in the planning
process. It also allows the applicant to receive input from the
decision - makers, staff, and community before finalizing the
engineering drawings necessary for implementation and final
approval.
b. Process. A Conceptual Precise Plan shall be reviewed and
approved in accordance with the process set forth in Chapter 20.91
and Chapter 20.95 of the Municipal Code.
3. Final Precise Plan
a. Scope and Purpose. The Final Precise Plan shall include
the final engineering necessary to pull building permits and other
supporting implementing information set forth in Section V.13.2 of
this PC District Plan. The Final Precise Plan is a more precise,
detailed and engineered plan that implements the policy guidance
in the Conceptual Precise Plan.
Newport Dunes Planned Community District Plan 6
07/13/99 11:33 AM
07/13/99 11:33 AM
Part 1 Land Uses, Development Standards & Procedures
Section I. Introduction
b. Process. At the applicant's election, a Final Precise Plan
maybe processed (i) after approval of a Conceptual Precise Plan
for one or more Planning Unit(s) or (ii) as the first submittal
without having previously obtained approval of a Conceptual
Precise Plan.
If a Conceptual Precise Plan has been approved by the Planning
Commission, the Planning Director shall review the engineered
Final Precise Plan for substantial conformance with the approved
Conceptual Precise Plan on an administrative basis. Upon a
finding of substantial conformance with the Conceptual Precise
Plan, the Planning Director shall approve the Final Precise Plan.
If the Final Precise Plan is submitted as the first submittal, the
Final Precise Plan shall be reviewed and approved in accordance
with the process set forth in Chapter 20.91 and Chapter 20.95 of
the Municipal Code.
The following table, Table 1, graphically illustrates this process.
Newport Dunes Planned Community District Plan 7
/C-_7
071} 3199 11:33 AM
Part S Land Uses, Development Standards & Procedures
Section I. Introduction
1atmii jrecor M0.' t
Appealable to Planning —]
Commission er Ch. 20.95
Appealable to City Council
per Ch. 20.95
Table 1
Newport Dunes Planned Community District Plan 8
13
.. ... . City Council
.20.95
Newport Dunes Planned Community District Plan 8
13
PC District Plan Details
This PC District Plan covers the entire Planned Community. Prior to approval of
any tentative subdivision map or issuance of a building or grading permit, the
applicant shall obtain approval of a Final Precise Plan. Any maps within the
Planned Community shall be approved pursuant to Municipal Code Title 19.
1. Permitted General Uses
For purposes of the PC District Plan, "permitted uses" are those uses set
forth in this Section for each Planning Unit, and as described in a Final
Precise Plan. The following General Uses are permitted in the Newport
Dunes Planned Community, subject to Final Precise Plan approval:
a. Visitor accommodations, including, but not limited to, a hotel /time-
share complex (not to exceed a total of 600 rooms /units), and a
recreational vehicle resort and village center,
b. Marinas and marine sales and services,
C. Various food and beverage services including, but not limited to,
cafes, restaurants, bars and cocktail lounges, food and beverage
concessions, and catering service. No more than one (1) free
standing cafe /restaurant is permitted in the Newport Dunes
Planned Community,
d. Dry boat storage, at grade level and /or in covered multi -level
structures,
e. Boat launch ramps,
f. Commercial recreation uses,
g. Retail commercial business supportive of the destination resort
uses,
h. Service commercial business supportive of the destination resort
uses,
i. Day use beach areas,
j. Accessory and ancillary structures or uses which are customarily
incidental or necessary to the permitted main uses, and
k. Any other similar use which is found compatible with the purpose
and objectives this PC District Plan and which is indicated on the
approved Planned Community Development Plan, and a Final
Precise Plan or amendment thereof, approved in accordance with
this Newport Dunes PC District.
/I/
07113199 11:33 AM
Part 1 Land Uses, Development Standards & Procedures
Section III. Land Use and Development Entitlements
2. Permitted Specific Uses Per Planning Unit
The following Specific Uses are permitted in the Planning Units as
delineated generally on Figure 4.
Key
f� Resort Hotel & Time-Shares
MAY ,.
Planning Units PL`
Figure 4
Planning Unit 1, Resort Hotel and Time - Shares: Planning
Unit 1 comprises approximately 30 acres of the larger 100 -acre
Newport Dunes Planned Community visitor serving resort and
recreational complex. All existing and planned land uses in
Planning Unit 1 are visitor- serving uses.
Permitted Primary Uses, Unit 1: The primary use for Planning
Unit 1 is visitor- serving destination resort hotel and associated
time -share units. Permitted are:
Newport Dunes Planned Community District Plan 17
1!5
0
hlCle Resort t
t2
Village CCennter
®Day
Use, Beach d —r
Lagoon
Boat
Storage
MAY ,.
Planning Units PL`
Figure 4
Planning Unit 1, Resort Hotel and Time - Shares: Planning
Unit 1 comprises approximately 30 acres of the larger 100 -acre
Newport Dunes Planned Community visitor serving resort and
recreational complex. All existing and planned land uses in
Planning Unit 1 are visitor- serving uses.
Permitted Primary Uses, Unit 1: The primary use for Planning
Unit 1 is visitor- serving destination resort hotel and associated
time -share units. Permitted are:
Newport Dunes Planned Community District Plan 17
1!5
0
07/13/99 11:33 AM
Part 1 Land Uses, Development Standards & Procedures
Section III. Land Use and Development Entitlements
a. Resort Hotel and Time - Shares: up to 600 hotel
rooms, with the option to replace up to 200 hotel
rooms with time -share units. Up to 100 time -share
units with no more than 200 bedrooms may be
allowed at the option of the applicant with a pro rata
reduction in hotel rooms. If a time -share unit has
more than one bedroom and the potential to be
separated for the purpose of renting separately, then
each bedroom shall be counted as one room.
Permitted Secondary Uses, Unit I: Secondary visitor serving
support uses are also provided for, and include such land uses as:
a. Parking structures and surface parking,
b. Fitness center and health spa,
C. Food and beverage outlets (such as cafes,
restaurants, cocktail lounges, bars, food and
beverage concessions, etc.),
d. Retail shops,
e. Community information pavilion,
f. Meeting rooms, ballrooms, pre - function areas and
banquet facilities,
g. Aquatic - oriented recreation activities, including
beach, watersports and other recreational uses,
It. Special events, parties, catering and functions,
i. Accessory uses that are customarily incidental to,
and supportive of, the main uses including, but not
limited to: restrooms, showers, equipment rentals,
security and snack stands and carts, and
j. Any similar use which is found to be consistent with
the aquatic- oriented destination resort concept of
the Newport Dunes Planned Community and which
is shown on an approved Final Precise Plan.
Planning Unit 2, Recreational Vehicle Resort and Village
Center: Planning Unit 2 comprises approximately 12 acres of the
larger 100 acre Newport Dunes Planned Community visitor serving
resort and recreation complex. All existing and planned uses in
Planning Unit 2 are visitor- serving uses.
Dunes Planned Communitv District Plan 18
N
07113199 11:33 AM
Part 1 Land Uses, Development Standards & Procedures
Section Ill. Land Use and Development Entitlements
Permitted Primary Uses, Unit l: The primary use for Planning
Unit 2 is a visitor serving recreational vehicle resort and village
center. Permitted is:
a. Recreational vehicle resort and village center.
Permitted Secondary Uses, Unit l: The secondary uses for
Planning Unit 2 are support for the recreation vehicle resort and a
"village center" serving and supporting the Newport Dunes Resort.
Permitted are:
a. Administrative offices, security and first aid station,
b. Retail/convenience store and equipment rental,
C. Recreational/meeting room and clubhouse,
d. Additional meeting/banquet space,
e. Snack stands and carts,
f. Restrooms, showers and laundry,
g. Community information pavilion,
h. Special events, parties, catering and functions,
i. Accessory uses, which are customarily incidental to
and supportive of a recreational vehicle resort, and
j. Any similar use which is found to be consistent with
the aquatic-oriented destination resort concept of
the Newport Dunes Planned Community and which
is shown on an approved Final Precise Plan.
Planning Unit 3, Day Use, Beach & Lagoon- Planning Unit 3
comprises approximately 35 acres of the larger 100 acre Newport
Dunes Planned Community visitor serving resort and recreation
complex. All existing and planned land uses in Planning Unit 3
are visitor- serving uses.
Permitted Primary Uses, Unit 3: The primary uses for Planning
Unit 3 are;
a. Paved parking areas serving the beach and lagoon
visitors,
b. Pavilions, cabanas, picnic areas and playgrounds
(permanent, open structures, with services limited to
electricity and water),
Newport Dunes Planned Community District Plan
%/
0711319911:33 AM
Part 1 Land Uses. Development Standards & Procedures
Section 111. land Use and Development Entitlements
C. Commercial concessions and facilities that serve
beach goers, including, but not limited to, boat and
equipment rentals and fast -food stands,
d. Public visitor serving beach areas, and
e. A swimming and recreation lagoon.
Permitted Secondary Uses, Unit 3: Permitted secondary uses in
Planning Unit 3 include:
a. Restrooms and showers,
b. Special events, parties, catering and functions,
C. Accessory uses which are customarily incidental to
and supportive of the main uses, and
d. Any similar use which is found to be consistent with
the aquatic- oriented destination resort concept of
the Newport Dimes Planned Community and which
is shown on an approved Final Precise Plan.
Planning Unit 4, Boat Launch and Dry Boat Storage: Planning
Unit 4 comprises approximately 13 acres of the larger 100 acre
Newport Dunes Planned Community visitor serving resort and
recreation complex. All existing and planned uses in Planning
Unit 4 are visitor- serving uses.
Permitted Primary Uses, Unit 4: The primary uses for Planning
Unit 4 are:
a. Boat launching ramps,
b. Dry boat storage either at grade or in a covered
stacked - storage facility,
C. One free - standing restaurant/cafe,
d. Marine repairs, and
e. Transient boat slips.
Permitted Secondary Uses, Unit 4: Permitted uses in Planning
Unit 4 include:
a. Temporary boat trailer parking while using the
launch ramp facility,
b. Boat washdown racks,
C. Charter vessels for commercial purposes, subject to
a commercial harbor activities permit,
Newport Dunes Planned Community District Plan 20
10
07/13/99 11:33 AM
Part 1 Land Uses, Development Standards & Procedures
Section III. Land Use and Development Entitlements
d. Special events, parties, catering and functions,
e. Accessory uses which are customarily incidental to
and supportive of the main uses, including, but not
limited to, convenience docks, commercial vessel
charter operations, and an ecological interpretive
center, and
f. Any similar use which is found to be consistent with
the aquatic - oriented destination resort concept of
the Newport Dunes Planned Community and which
is shown on an approved Final Precise Plan.
Planning Unit 5, Marina: Planning Unit 5, including the floating
docks, comprises approximately 13 acres of the larger 100 acre
Newport Dunes Planned Community visitor serving resort and
recreation complex. All existing and planned uses in Planning
Unit 5 are visitor- serving uses.
Permitted Primary Uses, Unit 5: The primary uses for Planning
Unit 5 are:
a. Boat slips and docks,
b. Marine clubhouse,
C. Offices,
d. Storage, and
e. Pedestrian bridge.
Permitted Secondary Uses, Unit 5: Permitted secondary uses in
Planning Unit 5 include:
a. Restrooms /showers,
b. Charter vessels for commercial purposes, subject to
a commercial harbor activities permit,
C. Special events, parties, catering and functions,
d. Accessory uses which are customarily incidental to
and supportive to the main uses, including, but not
limited to, boat pump -out stations and commercial
vessel charter operations, and
e. Any similar use which is found to be consistent with
the aquatic- oriented destination resort concept of
the Newport Dunes Planned Community and which
is shown on an approved Final Precise Plan.
Newport Dunes Planned Community District Plan 21
/f
LSA Amaciares, Inc.
Newport Dunes Resort Facilities and Structures -
Existing vs. Settlement Agreement (Continued)
RV Resort Restrooms (3 total)
Permitted by
Existing Settlement
2,000 SF
(Constructed) Agreement
BEACHAREA
300 SF
Pavilion 1
3,000 SF
Pavilion 2
3,750 SF
Pavilion 3
2,300 SF
Pavilion 5
3,000 SF
Pavilion 4 ( may be removed)
3,700 SF
Cabanas (18 total - 360 SF [each])
6,480 SF
SUPPORTFOR BACKBAYDRIVE USES
Clubhouse (meeting room)
Public Beach Restrooms
Day use beach area
1,200 SF
RV beach area
800 SF
RV Resort Restrooms (3 total)
1,200 SF (each)
Maintenance Building (including residence)
2,000 SF
Watersports Rental
300 SF
MARINA CENTER
Operations Center
6,100 SF
6,000 SF
Marina office
TV room
Clubhouse (meeting room)
Fitness Center
[475]'
Storage Building
3,500 SF
3,200 SF
Storage lockers
Laundry and vending area
Restrooms (2 total - 1,200 SF [each])
2,400 SF
COALLIERCMLIOFFICE/RETAIL
5,000 total
East side of lagoon
Marina area
Source: Newport Dunes Partnership, November, 1998;
1983, 1984, 1987, 1988,
1990, Settlement
Agreement, WPA Traffic Engineering, February, 1999.
Brackets indicate floor area specifically designated in the Settlement Agree-
ment which is already included in the total square footage for that facil-
ity/structure in this table.
9 /17199(<P: \CNB 834\EIR\SEC3.O. W PD))
20
PROJECT DESCRIPTION
3-17
LSA Associates, Me.
Newport Dunes Resort Facilities and Structures -
Existing vs. Settlement Agreement (Continued)
Permitted by
Existing Settlement
(Constructed) Agreement
Offices: Sales, Catering, General Manager, Activi- [6,200 admin.]'
ties, Marketing, Advertising, Human Resources,
Accounting, Security
Bayview Room (meeting room)
Grocery Store:
Selling area
Receiving and storage
Rentals (bicycles, in -line skates, etc.)
Wind and Sea Room (meeting room & office space)
Clubhouse
Laundry/Restrooms
Resident Manager Residence
FAMILY INN
40% of rooms with kitchens, 500,000 sq.
max
RESTAURANTS
Family Inn Site
Anthony's Pier 11 Site
BACK BAYCAFE BUILDING
Back Bay Caf6/Marine Repair:
Kitchen/receiving/storage
Banquet prep and storage
Dockside Room (meeting room)
Residence (upstairs)
Outdoor dining deck (2,000 additional SF)
Marine Repair Facility
feet
3,400 SF
3,500 SF
2,100 SF
1 meeting room
(100 person capacity)
2,900 SF
2,900 SF
2,100 SF
2,100 SF
2,050 SF
275 rooms
500,000 SF
27,500 total
[12,500]=
[15,000)'
7,200 SF 7,500 SF
[3,000 SF]1
Brackets indicate floor area specifically designated in the Settlement Agree-
ment which is already included in the total square footage for that facil-
ity/structure in this table.
2 Brackets indicate floor area specifically designated in the Settlement Agree-
ment which is already included in the total square footage for that facil-
ity/structure in this table.
PROJECT DESCRIPTION
9 117/99((P:\CNB&341EIRXSEC3 -0. WPD)) 3 -16
Z/
LSA Au"ialn. Inc.
Newport Dunes Resort Facilities and Structures -
Existing vs. Settlement Agreement'
Permitted by
Existing Settlement
(Constructed) Agreement
FAC1L=S
RV Resort 406 sites 444 sites
Boat Launch 7 lanes (including 2 7 lanes
launch docks) 185 boat launch park-
ing
Boat Wash Rack 6 lanes
Dry Boat Storage
Storage Area (adjacent to boat launch)
284 spaces 400 spaces
Interim Storage Area (west of Swimming Lagoon)
195 spaces
Total Boat Storage Spaces
479 spaces
Marina
450s ' lips (including 230 existing
20 ansient slips 200 new
near launch ramp)
Automobile Parkine
East Side Parking
852 spaces 645
RV Resort and Village Center
115 spaces
West Side of Lagoon
488 spaces
Total Automobile Parking Spaces
1,455 spaces
STRUCTURES
VILLAGE CENTER
Operations Center: 5,970 SF 7,000 SF total
Front Desk
Restrooms
The table is provided for reference only, as direct comparisons between the
"Existing" and "Settlement Agreement" columns are not exact. The reader is
referred to the Settlement Agreement and Figure 3.2.3, Existing Newport
Dunes Resort Site Plan, for more specific information.
Z See Table 4.7.13, Newport Dunes Resort Existing Parking, for a complete
breakdown of existing automobile parking spaces at the Resort.
PROJECT DESCRJF770N
9i17199((P: \CNB834\EIR\SEC3 -O. W PD» 3 -I5
zz
Lease Information
The existing lease between the County of Orange and the Newport Dunes
Partnership is a 50 -year lease entered into on February 16, 1989, and therefore
covers another 38 years, until 2039. The lease has had the following
amendments: Parcel B Lease Amendment in 1990; First Amendment to Lease in
1992; Parcel C Lease Amendment in 1994; and Second Lease Amendment in
1996.
A brief highlight of the lease follows:
1. The purpose cited for the County to enter into the lease is "...to
promote the redevelopment of Newport Dunes and to make available
recreational facilities and services provided by Tenant for the benefit of
the public."
2. An annual minimum rent is established with a provision for adjustment
by the County every 5 years. A percentage of rent against the gross
generated from specific uses is established and is subject to periodic
adjustments. See the following page for various rent percentages.
3. The Tenant agrees to establish a Capital Replacement Fund for the
replacement of furniture, fixtures and equipment and for capital
repairs and improvements.
4. The lease required that specific demolitions and improvements were
mandated.
5. The Tenant is solely responsible for site maintenance, except dredging.
6. The lease requires to County to establish and make annual
contributions to a Dredging Reserve Fund.
7. Lifeguarding is required when swimming areas are open to the public.
8. Insurance coverage is required in specific amounts.
9. Lease transfer requires County approval. The County also has the
Right of First Refusal to match any bona fide purchase offer and has
45 days to decide.
10. The County has to agree to boat launch and marina fee changes.
,:�?3
1'
On the fifth (5th) anniversary of
the effective date of
this LEASE, and every five
2!
years thereafter, the minimum annual rent shall
be automatically adjusted in
accordance with the provisions of
Clause 11 (REVISION
OF
RENT).
3.
Should this LEASE be terminated during
an accounting
year,
the applicable minimum
annual rent shall be prorated on
the basis of
a three hundred
sixty -five (365)
4'
day year.
5!
B. Percentage Rent. Percentage
rent for the
Demised Premises
shall be calculate,
6'
and automatically increased using
percentages
of gross
receipts from business
activities conducted on or from the
Demised Premises
in
accordance with the
71
following schedule:
81
(1) Parcel A.
Percentage
Effective
Rents and
Dates
9
Business Activities/
First
Next
Thereafter to
10�
Service or Use
Two Years
Two Years Scheduled Revision
i
11 I
Boat Storage
12�
Open /Enclosed
5
7
11
Storage Lockers
20
20
25
Dinghy Racks
20
20
25
13I
Boat Launch
5
10
10
14
Boat (Sales /Charter)
Rental
20
20
20
15
Charter
5
5
5
Sales - New /Used
1.5
1.5
1.5
16I
Brokerage /Commissions
10
10
10
Instruction /lessons
10
10
10
17
Equipment Rentals
10
10
10
Insurance Brokerage
10
10
10
18i
Marine Repair
j
Boat Repair
3
4
4
19
Do- it- yourself
3
4
5
Ships Chandlery
3
4
4
201
Parts (Wholesale)
1
1
2
Office Rent
10
10
10
211
Overnight Carping
5
10
20
Parking
10
15
20
22
Pay Telephone (of
payment made to TENANT)
10
10
10
23
Pump- out /Dump Station
5
5
5
Retail Stores
3
3
3
24
RV Convenience Store
4
4
5
RV Park*
5
10
15
25
Snack Stands
4
4
5
Transient Boat Slips
25
25
25
26
Unapproved Use
100
100
100
27
*The percentage rental for
the RV Park
shall automatically increase to 21
on the fifth anniversary
of the effective
date
of this LEASE.
28
SB:mgj:da
j
91 -1 -7
Z¢-
Proposed Sale and Financial Information
To date, the City Manager has been able to obtain the following information
regarding the proposed sale of the leasehold and current financial condition of
the Dunes operation.
1. There is no minimum bid price being proposed by the sellers.
2. There is no cutoff date for accepting lease purchase offers.
3. The entire leasehold is for sale.
4. The seller is not interested in the purchase price being paid over time.
The desire is for a lump sum buyout.
5. The County has 45 days to match any purchase offer.
6. Leasehold revenues have increased at a 6 % -8% annual average.
7. As of the 2000 year -end audit, the Partnership listed $13,638,627 in
total long -term liabilities.
8. In 2000, the combined revenues for rent, food and beverage, gift
shop, and other income totaled $11,208,179.
9. The 2000 financial statement shows a gross operating profit of
$4,671,203.
10. The lease payment to the County in 2000 was $1,796,662. Property
taxes, insurances, and other expenses totaled another $587,905.
11. The Net Income before interest expenses, depreciation and
amortization was $2,286,636.
12. Property and equipment for December 31, 2000 was listed as having a
value of $28,997,950. Accumulated depreciation and amortization
reduced this figure to $16,042,377.
Based on a brief review of the lease and financial documents available to the
City, the City Manager believes the value of the lease to be in the range of $25-
$50 million. It is the City Manager's opinion that were the City to purchase the
lease, that site operational revenue would be insufficient to support bond
payments. Additionally, the City would not be able to bond for the purchase
solely with operational revenues, since operational revenues alone would not
support repayments. There are two reasons for this: 1) The City would have to
substantially fund a Replacement Fund for maintenance and repairs of facilities in
the early years, and 2) The the purchase price would include value for the un-
built "family inn" and 27,000 sq. ft. of restaurant space, and unless revenue
producing uses were added to the site, the existing income generating uses
would have to cover the purchase value which includes future revenue
generators.
The City Manager believes that existing operational revenue could cover a
portion of the bonded indebtedness payments, but not all. A community wide
25
property tax override, of an undetermined amount, would be needed to obtain
bond financing and to make the bond payments.
These opinions are solely that of the City Manager and staff, and are not based
on professional opinions of appraisers or land developers. A much greater level
of due diligence would be required to undertake a professional assessment,
which include purchase funding options.
2G
Newport Dunes Settlement Agreement
In February 1981, the City of Newport Beach instituted litigation against the
County and Newport Dunes, Inc. for the alleged inadequacy of a project EIR
which would have resulted in redevelopment of the property. In May 1983, the
three parties signed a Settlement Agreement which reduced the scope of the
project and provided the City with land use jurisdiction over the property. The
Settlement Agreement was amended in 1984, 1987, 1988 and 1990.
Copies of the Agreement are enclosed:
1. 1983 Settlement Agreement (SA) — 30 pages
2. 1984 SA Amendment — 2 pages
3. 1987 SA Amendment — 3 pages
4. 1988 SA Amendment — 23 pages
5. 1990 SA Amendment — 4 pages
The original agreement and subsequent amendments defined and refined the
buildable space and site uses.
,17
SETTLEMENT AGREEMENT
THIS AGREEMENT, entered into this LL`day of 1983,
by and between THE CITY OF NEWPORT BEACH, a Municipal Corporation
and Charter City, hereinafter referred to as "City ", THE COUNTY
OF ORANGE, a political subdivision of the State of-California,
hereinafter "County ", and NEWPORT DUNES, INC., a California
Corporation, hereinafter "Corporation ", and the ORANGE COUNTY
HARBOR, BEACHES AND PARRS DISTRICT, organized pursuant to
Division 8, Part II of the H N Code, hereinafter "District", is-
made with reference to the following facts, the materiality and
existence of which is stipulated by and between the parties
hereto:
A. Pursuant to the provisions of Chapter 526 of the
California State Statutes of 1919, the State of California grant-
ed certain tidelands to County, which grant was subject to cer-
tain conditions and restraints on the use of the property. These
tidelands were regranted by the State to the County, pursuant to
the provisions of Chapter 415 of the Statutes of 1975, this grant
W
pl
again subject to certain conditions and restraints on the use of
the property. The tidelands referred to in these two grants,
together with a small parcel of uplands, are described as set
forth in Exhibit "A" to this Agreement, and are hereinafter
referred to as "the property ";
B. County has improved the property with certain pub-
lic recreational facilities, including a lifeguard headquarters
building and public restroom;
C. County has leased the property to Corporation pur-
suant to two 50 -year leases which run to May 30, 2008 and
February 28, 2015, respectively;
D. Pursuant to these leases, Corporation has improved
the property such that certain recreational and visitor - serving
facilities are now located on the property. These facilities
include the following-
i) A beach, consisting of approximately eleven
acres, together with concessions to serve beachgoers, such as,
fast food stands and businesses which rent beach equipment;
ii) A recreational' vehicle and travel trailer
camping area, with 64 spaces fully serviced by sewer, water and
.ZI9
i
L_.
electricity and 80 spaces which are partially served by such
utilities;
iii) A restaurant known as Anthony's Pier II locat-
ed on the northwesterly edge of the swimming lagoon and consist-
ing of approximately 7,500 sq. ft. of public area, and a coffee
shop, consisting of approximately 2,000 sq. ft. of public area
and located on the easterly side of the lagoon in the area of the
current boat - launching facilities;
iv) Boat and marina - related facilities consisting
of approximately 230 slips, a boat repair business, a canvas
shop, maintenance storage and a dry boat storage area with room
for approximately 350 boats and a six -lane boat launching ramp;
V) A structure, located near Anthony's Pier •II,
consisting of approximately 1,500 sq. ft. which presently serves
as the headquarters and equipment yard for Corporation.
E. Commencing in 1976, County and Corporation embarked
on a process designed to redevelop the property by enlarging or
improving existing facilities and constructing new facilities.
This process culminated, in 1980, with the approval, in concept,
of a redevelopment plan for the property which called for the
3
30
construction of a motel or family inn with 350 rooms, construc-
tion of "meeting rooms" with a seating capacity of 400 persons,
the construction of four additional coffee shops and snack bars,
at least one of which would seat 150 persons, construction of 263
additional boat slips, the construction of a "marina village"
consisting of approximately 50,000 sq. ft, of commercial and
retail development, the construction of approximately 20,000 sq.
ft. of facilities described as "marina amenities", 'the construc-
tion of approximately 12,000 sq. ft. of unspecified, commercial
development, the upgrading and enlarging of the recreational
vehicle area, and the construction of other development to sup-
port the primary uses;
F. . In Februarv, 1981, the City instituted litigation
in response to the approval of County of the redevelopment plan
for the property. This lawsuit is presently pending in Orange
County Superior Court (Case No. 35- 01 -35) and seeks a declaration
of that Court that the approval of the redevelopment plan by
County was in violation of provisions of the California Environ-
mental Quality Act (CEQA) and the State EIR Guidelines
(Guidelines) promulgated pursuant to that legislation. City, in
4
31
its complaint, also seeks a declaration of that Court that the
property, and the proposed construction of recreational
facilities, is subject to the ordinances of the City and that any
construction on the property must be approved by the City;
G. Subsequent to the filing of the lawsuit, all of the
interested parties have engaged in a collective discussion with
the intention of resolving all of the issues and concerns raised
by the redevelopment plan and the litigation instituted by
City. The development authorized by this agreement, and as
conditioned by this Agreement, resolves these issues and concerns
in that:
(i) The changes in the project, the requirement of
City concurrence in any additional development, and the binding
nature of this Agreement, mitigate, to an acceptable level, any
adverse environmental impacts that may result from the
construction of the improvements contemplated by this Agreement.
(ii) The development contemplated by this Agreement
is in the nature of proprietary activity and the binding commit-
ments to obtain City concurrence for additional development, are
adequate to fully protect the health, welfare and safety of the
citizens of Newport Beach;
5
-32-
(iii) The commitments contained in this Agreement
will resolve, the issues relative to land use control of the
property without the undue expenditure of taxpayers' funds and
the uncertainty that would result from continued litigation of
those issues.
NOW, THEREFORE, the parties hereto agree as follows:
I. City, in consideration of the covenants and pro-
mises of County and Corporation agrees to development of the
property not exceeding that described herein and conceptually
illustrated on Exhibit "B ", and provided further, that
development may proceed in .phases as deemed appropriate by
Corporation:
A. The construction of a family inn, not to
exceed 275 rooms, to be located on the west
side of the swimming lagoon subject to the
following:
1. The family inn will be designed and
constructed with features that will make
it attractive to families and these
design and construction features shall
Q
33
include, but not necessarily be limited
to, the following:
(a) Kitchen facilities in approximately
forty percent (408) of the units;
(b) A room containing recreational
facilities and equipment for use by
guests of the inn;
(c) No permanent audio /visual facilities
or equipment are to be integrated
into the design.
2. The area immediately adjacent to the
family inn shall be designed, improved
and maintained such that it is consistent
with the concept of a visitor - serving
facility attractive to families.
3. The family inn will be constructed in
accordance with the Building and Zoning
Ordinances of the City of Newport Beach,
all as more fully discussed in paragraph
III - A below.
7
-3 $Z
4.
The structure which houses the family inn
shall not exceed 500,000 sq. ft. of gross
floor area as that term is defined by the
ordinances of the City of Newport.Beach;
B. The
construction of two additional
restaurants,
and the expansion of Anthony's
Pier
II, or a successor restaurant, subject to
the
- following:
1.
One of the restaurants is to be a quality
dinner house, with a net public area (per
City standards) , not to exceed 5,000 sq.
ft.; the restaurant to be sited on the
east side of the swimming lagoon;
2.
The second restaurant, which will consist
of a net public area, (per City
standards) no greater than 7,500 sq. ft.,
shall be designed, maintained and
operated such that it serves,
principally, the patrons and guests of
the family inn, and special consideration
0
shall be given to families and children
in the operation of that restaurant;
3. The expansion of Anthony's Pier II shall
be limited such that the total net public
area (per City standards) shall be no
greater than 15,000 sq. ft.
C. The construction of structures -which will
house commercial, office or retail tenants,
subject to the following:
1. The size of new structures shall not
exceed 10,000 sq. ft. of gross floor
area;
2. One structure shall be located near the
existing Marina Dunes office building, on
the west side of the swimming lagoon and
in proximity to the existing boat slips;
3. A second structure shall be located on
the east side of the lagoon, near the
pedestrian bridge;
E
36
(7'
4. The tenancy shall be limited to those
businesses listed on Exhibit "C" to this
Agreement.
D. The construction of two meeting rooms with
seating capacity not to exceed 100 persons
each, one of which will be located on the east
side of the swimming lagoon.
E. The construction of a structure which will
serve as the headquarters for Newport Dunes,
Inc., subject to the following:
1. The size of the structure shall not
exceed 12,000 sq. ft.;
2. The structure will contain approximately
6,000 sq. ft. of space devoted to office
and administrative uses, with the
remaining space within the structure to
be devoted to parking of equipment, a
first aid station and the storage of
materials.
10
57
F. The construction of a recreational vehicle
park not to exceed 444 spaces, approximately
808 of which will have full service
capabilities including electricity, water and
sewer, together with a recreational vehicle
support center of approximately'5,000 sq. ft.,
the center to contain a small -- convenience
store, equipment rental area, recreation room,
restrooms and showers, a laundry facility, a
storage area and swimming pool, all subject to
the following:
1. At least 20 spaces in the recreational
vehicle park will be reserved for use by
those who have not made reservations for
space in the park, provided that those 20
spaces may be located in areas without
full service capability and, provided
further, that the Corporation may accept
reservations for those not occupied on or
before 3:00 p.m.;
11
9■
2. Users of the recreational vehicle park
will have preferential use of the meeting
room constructed on the westerly side of
the swimming lagoon.
G. The construction of approximately 200 boat
slips, a pedestrian bridge connecting the
easterly and westerly portions of the
property, and a pump -out station., subject to
the following:
1. No boat slips will be constructed in the
mouth of the lagoon, or in the lagoon
itself, until such time as the
City /County Joint Harbor Review Committee
has reviewed and approved a water quality
study which considers the effects of the
construction of boat slips on the water
quality in.the swimming lagoon;
2. Boat slips constructed in the mouth of
the lagoon, or within the lagoon itself,
shall not accommodate boats exceeding 28
ft. in length;
12
3i,
3. Boat slips constructed in the mouth of
the lagoon, or in the lagoon itself,
shall be designed and constructed to
ensure that there is minimal interruption
of the tidal flow in and out of the
lagoon;
4. Overnight occupancy of boats moored in
the mouth of the lagoon, or in the lagoon
itself, will be prohibited and all action
necessary to ensure enforcement of that
prohibition will be taken;
5. The pedestrian bridge which is to be
constructed across the mouth 'of the
swimming lagoon will be elevated above
the water surface, built on pilings, and
designed in such a manner as to minimally
restrict tidal flows in and out of the
lagoon;
6. A pumpout station shall be constructed at
a location convenient to boaters with a
13
5=0
�1
sufficient capacity to service any boat
for which slip or mooring space is
available on the property.
II. Corporation shall retain, and in certain cases:
upgrade and /or add to certain existing facilities and uses, as
follows;
A. The existing dry boat storage capacities shall
be increased to not more than 400 uri"rts, the
increase to be accomplished by the
construction or installation of a facility
that will allow stacking of small boats, the
storage facility will be covered and will be
administered in a manner that will assure
adequate security to private property stored
therein;
B. Corporation shall re- stripe the existing six -
lane launch ramp to ten lanes, and retain, or
upgrade, the washdown facilities located in
proximity to the launch ramp;
14
C. Corporation shall maintain the existing marine
repair facility located in proximity to the
boat launch ramp;
D. County and Corporation will preserve all of
the existing beach area and retain and assure
the continuing operation of concessions which
serve beach - goers, e.g., boat and equipment
rentals, fast food stands, lifeguards, picnic
areas, etc. At least 800 parking spaces Will
be set aside and made available for persons
using the beach during the day.
E. Corporation shall provide for overnight
camping use and all related facilities.-
ZZZ. Corporation, in consideration of the commitment of
City to approve the contemplated development as generally
described in this Agreement, stipulates and agrees as follows:
A.- Corporation agrees to design and construct all
new development in accordance With the.
applicable Building and Zoning Ordinances of
the City of Newport Beach and, specifically,
15
•5�9_
P
agree to construct new development in
conformance with the following:
1. No structure shall exceed the basic 35
ft. height limit established by Zoning
Ordinances of the City of Newport Beach;
2. Parking for all new development will be
in conformance with the parking standards
of the City of Newport Beach as set forth
in Chapter 20.30 of the Newport Beach
Municipal Code;
3. All signs and sign structures shall con-
form to the provisions of Chapter 20.06
of the Newport Beach Municipal Code;
B. Corporation agrees to contribute the sum of
$600,000 to City to be used to construct
circulation system improvements to mitigate
the traffic impacts created by development of
the project, this contribution to be subject
to the following:
16
�3
1. On or before January 1, 1984, County and
City shall agree on the specific traffic
mitigation measures to be financed by
Corporation's payment pursuant to this
paragraph and the approximate dates on
which construction of the improvements is
to commence;
2. The sum of $600,000 represents a contri-
bution of $1,500 per room, with the re-
mainder of the contribution predicated
upon the additional traffic generated by
the other development proposed for the
property;
3. Payment of the sum of $600,000 shall be
made in increments, in accordance with
the following schedule:
a) The sum of $150,000 to be paid upon
issuance of building permits;
b) The sum of $150,000 to be paid upon
completion of the foundation work
for the family inn;
17
5ey
c) The sum of $150,000 to be paid upon
final inspection of all rough
construction, e.g., plumbing,
electrical, framing and roofing; and
property; and
d) The sum of $150,000 to be paid upon
issuance of a Certificate of
Occupancy.
4. The sum of $600,000 represents the
minimum sum that would be required for
circulation system improvements to
mitigate the traffic impacts identified
in the traffic study, prepared by Runzman
Associates and attached as Exhibit "D"
on behalf of Corporation in January,
1983. This contribution is in lieu of
compliance by County and Corporation with
the City's Traffic Phasing Ordinance;
C. Corporation shall construct an interpretive
center, to be located near the northeast
IE
Y5
corner of the property, the function of the
interpretive center to be the provision of
information and educational materials relative
to the Upper Newport Bay Ecological Reserve.
Educational programs offered by the
interpretive center shall be coordinated with
the Department of Fish and Game and the
interpretive center shall be integrated into a
trail system, approved by the Department of
Fish and Game, that will allow interested
persons access to portions of Upper Newport
Bay.
D. Corporation agrees to construct a launching
area for human - powered and small sailcraft and
this launch area shall be of sufficient size
to accommodate, at a minimum, the current use
of the area for the launching of small sail
boats and human - powered craft by members of
non - profit corporations such as the Girl
Scouts;
19
I�Z6
al
E
E. Corporation shall construct a bike trail, the
design, width and location subject to the
approval by the County's Director of the
Environmental Management Agency and the City
Engineer, connecting Back Bay Drive with
Bayside Drive. No admission or user charge
shall be imposed upon persons for use of
trail. Bicyclists will be allowed access to
the interpretive center.
F. Transient occupancy taxes will be imposed upon
users of the family inn in accordance with the
provisions of Chapter 3.16 of the Newport
Beach Municipal Code. Transient occupancy
taxes will be collected and processed in
accordance with Chapter 3.16 of the Newport
Beach Municipal Code, and payment of all
transient occupancy tax revenues shall be made
to City as provided by the Newport Beach
Municipal Code.
ilE
G. Corporation, with respect to any use of the
property which requires the payment of any tax
or fee, for the issuance of any permit,
pursuant to the provisions of Title 5 of the
Newport Beach Municipal Code, agrees to pay
such fee or tax and /or obtairi the required
permit and comply with any and all- conditions
imposed upon the issuance of the permit;
H. The following uses of the property shall not
be
permitted-
1.
Skateboard courses;
Except
2.
Fireworks displays —,,As approved by the
Fire Department of City;
3.
Small animal or reptile zoo;
4.
The use of loudspeakers for
paging or
announcements outside of any
structure
provided, however, lifeguards
may use
such equipment for safety
and beach
control purposes;
S.
Amplified music, except in the
family inn
21
� �g
A\
or other structure, and in no event shall
amplified music provided by Corporation,
its lessees, licensees or operators of
the property, exceed 55 dbs when measured
at a point 50 ft. distant from any
exterior wall.
I. Grading and building permits shall be'-issued
by the City of Newport Beach and may contain
appropriate conditions, to ensure that
construction activities do not adversely
impact the citizens of Newport Beach. Such
conditions may include, but not necessarily be
limited, to the following:
1. Designation of specified haul routes;
2. Restrictions on hours of activity;
3. Installation of erosion control
facilities to ensure that silt does not
enter the Bay from the construction site;
J. Final design of the project shall incorporate
the following:
22
41
1. A lighting system designed and maintained
to conceal the light source and minimize
light spillage and glare offsite;
2. The incorporation of water— savinc
devices;
3. The installation of grease. traps in all
restaurant facilities;
4. Conformance with energy requirements as
specified in Title 24 of the California
Administrative Code;
S. Access and fire suppression systems in
accordance with the requirements of the
Fire Department of the City of Newport
Beacht
6. A landscape plan which
emphasis on the use of
native vegetation, irr
tem designed to avoid
overwatering, with the
installed during the
23
-5'O
shall place heavy
drought resistant
[gated with a sys-
surface runoff or
landscaping to be
initial phase of
construction or as early as practicable
once conflicts with other construction
activities are resolved.
IV. City agrees to provide a level of services to
Newport Dunes appropriate to the uses developed on the site and
consistent with that provided other properties in the_, City_,,
including, but not limited to, water, fire and police. _
V. The promises and commitments of the parties as set
forth herein, are intended to bind the parties now and in the
future. The parties understand that this Agreement is similar to
a•Joint Powers Agreement, and, as such, contains commitments of
both City and County sufficient to bind future boards and
councils, notwithstanding any change in the composition
thereof. City and County hereby expressly waive and give up any
right to challenge the validity of this Agreement, or any speci-
fic term or condition hereof, based upon the contention that the
legislative bodies of cities or counties are not empowered to
bind future boards or councils, and each of the parties hereto
stipulates that the consideration set forth in this Agreement is
adequate to support this waiver.
24
5-1
VI. County shall not allow, and Corporation shall not
construct, any development on the property exceeding that contem-
plated by this Agreement, without the concurrence of the City
Council of the City of Newport. Beach. Any plan for future
development, not contemplated by this Agreement, must be accom-
panied by adequate environmental documentation as required by
law, and will be processed through the Planning Commission and
City Council of the City of Newport Beach in accordance with the
provisions of Chapter 20.80 of the Newport Beach Municipal Code.
VII. The parties hereto recognize that the approval of
the California Coastal Commission and the State Lands Commission,
will be required for development of the property, and County and
Corporation covenant that, in requesting such approval, they will
seek no development in excess of that contemplated herein. City
agrees to notify, in writing, all agencies which are required to
approve the development contemplated in this Agreement of its
support and City will endeavor to appear at public hearings be-
fore any Board or Commission reviewing a proposal for such
development or any portion thereof, to express its support. To
the extent that the California Coastal Commission and /or State
25
�k
Lands Commission make requirements upon County and Corporation
not set forth in, or at variance with, the provisions of this
Agreement, County and City agree to accept and incorporate .as:
amendments to this Agreement all said changes and /or variances,
so long as said changes and /or variances do not expand 'or
increase the concentration, intensity or density of the
development of the project as contemplated by this Agreement or
change the nature of the land uses described herein. All parties
-understand that this Agreement is intended to establish the
limits of development and not to guarantee construction or
development. City understands and agrees that any of the
development contemplated by this Agreement, and any of the.
revenues or contributions which may be required pursuant to this
Agreement, are contingent upon County and Corporation negotiating
a satisfactory lease of the property. The County and Corporation
acknowledge that it will be necessary to re- negotiate the leases
on the property, in order for Corporation to be able to develop
the project described in this Agreement. County, therefore,
agrees to negotiate in good faith with Corporation to enter into
a new lease of sufficient scope and duration so as to allow
Orl
53
Corporation to develop the project as envisioned in this
Agreement. County and Corporation shall endeavor to notify City
of any public hearing or meeting which may relate to the develop-
ment contemplated by this Agreement at least ten (10) days prior
to the date of such meeting or hearing. Notice shall be given as
provided in this Agreement.
To City: City Attorney _
City of Newport Beach
3300 Newport Blvd.,
Newport Beach, California 92663
To County and
District: Director,
Orange County Environmental
Management Agency
811 No. Broadway
Santa Ana, California 92702
To Corporation: Newport Dunes, Inc.
c/o Lawrence H. Buxton
Courton & Associates
2061 Business Center Dr. #203
Irvine, California 92715
VIII. This Agreement is in furtherance of a plan for
redevelopment of the property. County and Corporation seek to
transform underused portions of the property to their economic
advantage by constructing visitor - serving facilities of greater
27
M&
intensity than now exist. City seeks to obtain certain offsite
benefits, including, among others, circulation system
improvements. All parties agree and recognize that it will not
be practical to restore this property to its previous state once
any significant portion of the contemplated development is
undertaken. The parties hereto have made significant and
irrevocable commitments and have each given up certain rights and
powers in order to achieve this agreement. The parties agree
that damages would not be an adequate remedy for the failure of
one of the parties to carry out its obligations under this Agree-
ment, both because the property and this Agreement are unique,
and because it would be very difficult to estimate the amount of
damages which could, or would, properly compensate the other
parties in the event of such failure or breach.
Thus, the parties agree that specific performance,
rather than damages, is the only remedy which would adequately
compensate the other parties in the event of the failure of one
party to comply with its duties and obligations as set:forth in
this Agreement.
I%. City and County shall, annually review the parties`
O
.,-5
performance of this Agreement. At its first meeting of each
calendar year, the Joint Harbor Review Committee shall review the
performance and implementation of this Agreement,, prepare a
report and provide copes of the report to the City Council and
County Board of Supervisors. In connection with such review,
each party shall have a reasonable opportunity to discuss matters
which it believes have not proceeded in accordance with this
Agreement, to receive from the other party information relating
to its position on such matters and shall seek to resolve such
matters by negotiation.
X. The provisions of this Agreement shall be binding
upon and inure to the benefit of the parties and their respective
successors and assigns.
XI. No modification, amendment or other change in this
Agreement or any provision thereof shall be affected for any
purpose unless specifically set forth in writing and signed by a
u duly authorized representative of the parties hereto.
9
Executed the day and year first above written.
u
CITY
u
By
Mayor
City of Newport Beach
ATTEST:
City Clerk
APPROVED AS TO F RM:
f ity Attor ey
56
APPROVED AS TO FORM:
County Counsel' 1
SIGNED AND CERTIFIED THAT A COPY OF
THIS DOCUMENT HAS BEEN DE:11%TRED TO
THE CHAIRMAN X THE BOARD.
A
. { I �. ; v� . __< •:L ,.�:. _ is
JUNE ALEXANDER
Clerk of the Board of Supervisors
County of Orange. California
COUNTY OF ORANGE
r�'' -� g s
The.-Chairman of its Board of
Supervisors .
DISTRICT
ORANGE COUNTY HARBORS, BEACHES AND
PARRS DISTRICT
Byi
e Chairman of its Board of
Supervisors
CORPORATION
NEWPORT DUNES, INC.
A California Corporation
By. l ✓
J/.
7n
A.
SETTLEIIENT AGREE,".ENT A`SE iDi "fE'iT
THIS AGRE:ZmENT AMENDMENT, entered into this day of
1984, by and between THE CITY OF NEWPORT BEACH, a Municipal Corpora -
tion�an��d Charter City, hereinafter referred to as "City", THE COtJNTY OF OM%GE, a
political subdivision of the State of California, hereinafter "County ", and-NEWPORT
DUMES, INC., a California Corporation, hereinafter "Corporation ", and the ORANGE
COUNTY HARBOR, BEACHES AND PARKS DISTRICT, organized pursuant to Division 8, Part II
of the H b N Code, hereinafter "District ", is made with reference to the following
facts, the materiality and existence of which is stipulated by and"between the par-
ties hereto:
A. County is currently leasing 72 -acre Newport Dunes Aquatic Park,
hereinafter referred to as "the property ", to Corporation under a 50 -year lease
agreement dated February 25, 1958. Corporation has constructed various reereatignal
and visitor- serving facilities located on the property pursuant to lease provisions.
V
B. Litigation was instituted by City in 1981 in response to County's
approval of proposed general redevelopment plans for the property. Subsequent
negotiations between all interested parties resulted in a Settlement Agreement,
approved by the Board of Supervisors on May 17, 1983. Among the provisions i
described therein, the Settlement authorized. construction of two new restaurants and
expansion of an existing restaurant subject to specific size restrictions.
C. City, County, and Corporation now wish to amend the Settlement to
allow for possible future alteration of new public area allotted to each restaurant
such that no increase in total authorized development occurs.
NOW, THEREFORE, the parties hereto agree as follows:
The permitted development for restaurant uses may be reapportioned in a
manner other than that provided in subparagraphs 1 B 1 -3 subject to the following
:onditions:
-1-
0
a) That the development is reapportioned on a per square foot basis such
that there is no increase in permitted development; and
b) 'That the reapportionment has been reviewed and approved by the
Director of the Environmental Management Agency for the County of Orange and the
Planning Director of the City of Newport Beach.
Executed the day and year first above written.
ALiT$ST :
/ / / /(( //// Cit clerk
APPROV79 AS TO FORM:(�A7
CITY OF NEWP RT BEACH
By:
May6r
C ty of Newport Beach
V%/ i y Attorney
COUNTY OF ORANGE
The Chairman of its Board of
Supervisors
APPROVED ,AS TO FORM:
11 A-t
411 1 County Counsel
DISTRICT
ORANGE COUNTY IARBORS, BEACHES ADD
ARKS DISTRICT
By:
The Chairman of its Board of.
Supervisors
SIGNED AND CERTIFIED TNiAT A COPY
OF THIS DOCUMENT HAS BEEN DELIVERED
TO THE �C�H- AIIRHAN OF THE BOARD
A.
A nda R6berts
Clerk of the Board of Supervisors
of Orange County, California
MY:dthDR804 -33
6/13/84
CORPORATION
NEWPORT DUNES, INC.
A Califo Corporation
By.
-2-
69
If 77
SETTLEMENT AGREEMENT AMENDMENT
THIS SECOND AGREEMENT AMENDMENT, entered into this o(_iay of
19g , by and between THE CITY OF NEWPORT BEACH, a Municipal Corporation and Charter
City, hereinafter ref °rred to as "City," THE COUNTY OF ORANGE, a political
subdivision of 'the State of California, hereinafter "County," and NEWPORT DUNES,
INC., a California Corporation, hereinafter "Corporation," and the ORANGE COUNTY
HARBORS, BEACHES AND PARKS DISTRICT, organized pursuant to Division 8, Part II of
the Harbors & Navigation Code, hereinafter "District," is made with reference to th(
following facts, the materiality and existence of which is stipulated by and betweez
the parties hereto:
A. County is currently leasing 72 -acre Newport Dunes Aquatic Park,
hereinafter referred to as "the property," to Corporation under a 50 -year lease
agreement dated February 25, 1956. Corporation has constructed various recreational
and visitor - serving facilities located on the property pursuant to lease provisions.
B. Litigation was instituted by City in 1961 in response to County's
approval of proposed general redevelopment plans for the property. Subsequent
negotiations between all interested parties resulted in a Settlement Agreement,
approved by the Board of Supervisors on May 17, 1963. Among the provisions
described therein, the Settlement provides for City and County to annually review
parties' performance of the agreement through the Joint Harbor Review Committee and
for said Committee to prepare a report for the City Council and Board of
Supervisors.
C. City, County, and Corporation now wish to amend the Settlement to
delete the requirement for an annual review and report by the Joint Harbor Review
Committee, in consideration of the fact that said Committee has not been duly
organized and that adequate administrative mechanisms exist to conduct such review
and prepare reports as may be necessary once project implementation begins.
'� D
NOW, THEREFORE, the parties hereto agree to amend Section IX to read as
follows:
"City and County shall periodically review the parties' performance of this
Agreement. In connection with such review, each party shall have a reasonable
opportunity to discuss matters which it believe have not proceeded in accordance
with this Agreement, to receive from the other party information relating to its
position on such matters, and shall seek to resolve such matters by negotiation."
.6/
Executed the day and year first above writ
ATTES
City Cle
APP VED AS TO O
City Attorney
APPROVED ,#S T FORM
County Counsel
SIGNED AND CERTIFIED THAT A COPY
OF THIS DOCUMENT HAS BEEN DELIVERED
TO THE CHAIRMAN OF THE BOARD
Linda Roberts
Clerk of the Board of Supervisors
of Orange County, California
C
By:
City of Newport
COUNTY OF ORANGE
By:
The Chairman of its Board of
Supervisors
DISTRICT
ORANGE COUNTY HARBORS, BEACHES AND
PARKS DISTRICT
By:
The Chairman of its Board of
Supervisors
CORPORATION
NEWPORT DUNES, INC.
A Cal
ornn � -tio�n
By : T 1� 71
Qt G7L � O W rr
7
O J 3g
DR :bhPRF01 -7 -01- 62
AMENDED NEWPORT DUNES SETTLEMENT AGREEMENT
THIS AGREEMENT, entered into this / may of
1988, by and between THE CITY OF NEWPORT BEACH, a Municipal
Corporation and Charter City, hereinafter referred to as "City,"
THE COUNTY OF ORANGE, a Political Subdivision of the State of
California, hereinafter "County," and NEWPORT DUNES PARTNERSHIP, a
California Partnership, hereinafter "Company," is"- made with
reference to the following facts, the materiality and existence of
which is stipulated by and between the parties hereto:
A. Pursuant to the provisions of Chapter 526 of the
California State Statutes of 1919, the State of California granted
certain tidelands to County. These tidelands were regranted by
the State to the County, pursuant to the provisions of Chapter 415
of the Statutes of 1975. The legislature imposed certain
conditions and restrictions on the use of the granted property.
The tidelands referred to in these two grants, together with a
small parcel of uplands, are described in Exhibit "A" to this
Agreement, and are hereinafter referred to as "the Property ";
B. Newport Dunes, Inc., formerly a California
corporation (NDI) has, in the past, constructed certain
recreational and visitor - serving facilities on the property,
including the following:
13
(1) A beach, consisting of approximately ten (lo)
acres, together with concessions to serve beachgoers, such as,
fast food stands and businesses which rent beach equipment:
(2) A recreational vehicle and travel trailer
camping area, with 64 spaces fully serviced by sewer, water and
electricity and 80 spaces which are partially served by such
utilities;
(3) A restaurant known as Anthony's Pier II located
on the northwesterly edge of the swimming lagoon and consisting of
approximately 7,500 sq. ft. of public area, and a coffee shop,
consisting of approximately 2,000 sq. ft. of public area and
located on the easterly side of the lagoon in the area of the
current boat - launching facilities;
(4) Boat and marina - related facilities consisting of
approximately 230 slips, a boat repair business, a canvas shop,
maintenance storage and dry boat storage area with room for
approximately 350 boats and a six -lane boat launching ramp;
(5) A structure, located near Anthony's Pier II,
consisting of approximately 1,500 sq. ft. which presently serves
as the headquarters and equipment yard for Company.
C. Commencing in 1976, County and NDI embarked on a
process designed to redevelop the property by enlarging or
improving existing facilities and constructing new facilities.
This process culminated in 1980, with the approval, in concept,
of a redevelopment plan for the property which called for the
construction of:
FA
16y,
J) A motel or family inn;
(2) Meeting rooms with a seating capacity for 400
persons;
(3) Additional restaurants, coffee shops and snack
bars, at least one of which would seat 150 persons;
(4) 263 additional boat slips;
(5) A "marina village" consisting of approximately
50,000 sq. ft. of commercial and retail development with
approximately 20,000 sq. ft. of facilities described as marina
amenities;
(6) A modern recreational vehicle park; and
(7) Other development to support the primary uses.
D. The City instituted litigation challenging the
County's approval of the redevelopment plan for the property. In
1983, the parties resolved this litigation through a settlement
agreement which reduced the size and scope of certain components
of the project and obligated County and NDI to comply with
provisions of the Building and Zoning Codes of the City.
E. NDI has assigned its rights, duties and obligations
under the leases and original Settlement Agreement to Company.
F. The Orange County Harbor, Beaches and Parks District,
which was a party to the original Settlement Agreement, has been
dissolved, with County of Orange designated as successor agency,
therefore, District is not a necessary or appropriate party to
this amended Agreement.
ly
4o.<
G. The parties to the original settlement agreement have
determined that unanticipated delays in constructing the project,
a desire to construct, a revised project, and changes in the
circumstances surrounding the project require execution of an
amended settlement agreement.
NOW, THEREFORE, the parties hereto agree as follows:
I. City, in consideration of the covenants and promises
made by County and Company in this agreement agrees to approve
the development of the property contemplated in this agreement,
(conceptually illustrated on Exhibit "B,") provided County and
Company have complied with all conditions precedent to development
that are specified in this agreement. The development
contemplated in this agreement may proceed in phases as deemed
appropriate by Company. The development of the property
authorized by this agreement is as follows:
A. The construction of a family inn, not to exceed
275 rooms, to be located on the west side of the swimming lagoon
subject to the following:
1. The, family inn will be designed and
constructed with features that will make it attractive to
families and these design and construction features shall include,
but not necessarily be limited to, the following:
(a) Kitchen facilities in approximately
forty percent (40 %) of the units;
(b) A room containing recreational
facilities and equipment for use by the guests of the inn;
61-
(c) No permanent audio /visual facilities
or equipment are to be integrated into the design.
2. The area immediately adjacent to the family
inn shall be designed, improved and maintained such that it is
consistent with the concept of a visitor - serving facility
attractive to families.
3. The family inn will be constructed in
accordance with the Building and Zoning Ordinances of the City of
Newport Beach, all as more fully described in paragrapif-III -A.
4. The structure which houses the family inn
shall not exceed 500,000 sq.ft. of gross floor area (per City
standards) inclusive of area used for the service, storage and
preparation of food or beverage.
B. The construction of a new restaurant on the site
previously occupied by Anthony's Pier II, and the construction of
restaurant and food serving areas within, or adjacent to, the
family inn, subject to the following:
1. Restaurant area within, and adjacent to,
the family inn, shall be limited to 12,500 sq.ft. of net public
area (per City standards);
2. The restaurant to be constructed on the
site formerly occupied by Anthony's Pier II shall be limited to
15,000 sq.ft. of net public area (per City standards).
3. Restaurant and food serving area outside of
the structure which houses the family inn shall be limited to
0
lo%
those areas which are intended to primarily serve guests of the
inn, such as the pool and cabana -area;
4. A substantial portion of restaurant space
within the family inn shall be located, designed, maintained and
operated such that it principally serves the patrons and guests of
the family inn, with special consideration given to families with
children; and
5. The permitted development for restaurant
uses may be reapportioned in a manner other than that specified in
the preceding paragraphs provided:
(a) The reapportionment is on a per square
foot basis such that there is no increase in permitted restaurant
development;
(b) The reapportionment has been reviewed
and approved by the County's Director of Harbors, Beaches and
Parks /EMA and the Planning Director of the City of Newport Beach;
and
(c) The reapportionment does not result in
a transfer of restaurant development to the east side of the
swimming lagoon.
C. The construction of a structure or structures
which will house commercial, office or retail tenants, subject to
the following:
1. The size of new structure or structures
shall not exceed a total of 5,000 sq. ft. of gross floor area (per
City standards);
2. The tenancy shall be limited to those
activities permitted by the lease and with County and Company and
which are consistent with the tidelands grants businesses listed
on Exhibit "C" to this Agreement.
D. The construction of a structure or structures to
replace the existing marine repair facility and coffee shop on the
east side of the swimming lagoon subject to the following%
1. The structure shall not exceed a total of
7,500 sq. ft. of gross floor area (per City standards);+ and
2. Approximately 3,000 sq. ft. of the
structure shall be utilized as a marine repair facility, with the
remaining portion of the structure or structures to be used as a
coffee shop and retail uses which support the needs of those
using the boat launch or boat storage areas.
E. The construction of a meeting room with a
seating capacity not to exceed 100 persons to be located on the
west side of the swimming lagoon.
F. The construction of a structure which will serve
as the headquarters for Company, subject to the following:
1. The size of the structure shall not exceed
7,000 sq. ft.;
2. The structure will contain approximately
6,200 sq. ft. of space devoted to office and administrative uses,
with the remaining space within the structure to be devoted to
parking of equipment, a first aid station and the storage of
materials.
W
�R
G_ The construction of a recreational vehicle park
not to exceed 444 spaces, all of which will have full service
capabilities, including electricity, water and sewer, together
with a recreational vehicle support center, the center to contain
a small convenience store and an equipment rental area
(approximately 3,500 sq.ft. of gross floor area), an equipment
rental area, recreation /meeting room and clubhouse (approximately
2,900 feet of gross floor area), restrooms, showers and a laundry
facility (approximately 2,100 feet of gross floor area), a storage
area and swimming pool.
H. The construction of approximately 200 boat
slips, a pedestrian bridge connecting the easterly and westerly
portions of the property, and a pump -out station, subject to the
following:
1. No boat slips shall be constructed in the
mouth of the lagoon, or in the lagoon itself, until such time as
designated representatives of the City and County have reviewed
and approved a water quality study which considers the effects of
the construction of boat slips on the water quality in the
swimming lagoon;
2. Boat slips constructed in the mouth of the
lagoon, or within the lagoon itself, shall not accommodate boats
exceeding 28 ft. in length;
3. Boat slips constructed in the mouth of the
lagoon, or in the lagoon itself, shall be designed and constructed
0
7P
to ensure that there is minimal interruption of the tidal flow in
and out of the lagoon;
4. Overnight occupancy of boats moored in the
mouth of the lagoon, or in the lagoon itself, is prohibited and
County and /or Company shall take all action necessary to ensure
enforcement of that prohibition;
S. The pedestrian bridge which is to be
constructed across the mouth of the swimming lagoon will be
elevated above the water surface, built on pilings, and designed
to minimally restrict tidal flows in and out of the lagoon and
permits the entry of dredging equipment (such as removable center
section);
6. A pumpout station shall be constructed at a
location convenient to boaters with a sufficient capacity to
service any boat for which slip or mooring space is available on
the property; and
7. Company may charter vessels for commercial
purposes from a location on the west side of the swimming lagoon
subject to issuance, by City, of a commercial harbor activities
permit and compliance with all City ordinances.
II. Company shall retain, and in certain cases upgrade
and /or add to, certain existing facilities and uses, as follows:
A. The existing dry boat storage capacity may be
increased to no more than 400 units. During the first phase of
construction, all dry boat storage shall be at surface level. If
additional spaces are to be provided, the increase may be
M
71
accomplished by the construction or installation of a facility
that will allow stacking of small boats. The storage facility
will be covered and will be administered in a manner that will
insure adequate security of private property;
B. Company shall restripe the existing six -lane `
launch ramp to at least seven 15' lanes, and retain, or upgrade,
the washdown facilities located in proximity to the launch ramp;
C. Company shall provide at least 185 boat -
trailer parking spaces in proximity to the boat launch area.
These spaces shall be used for vehicles and trailers using the
boat launch facilities, and by patrons of the marine service
building and dry boat storage facility, and to extent space is
needed and available by beach users when day -use parking area is
filled.
D. County and Company shall preserve substantially
all of the existing beach area and retain and assure the
continuing operation of concessions and facilities which serve
beachgoers, including, but not limited to, boat and equipment
rentals, fast food stands, lifeguards, and picnic area. At least
645 day use area parking spaces, in addition to parking spaces
specified elsewhere in this Agreement, will be made available for
persons using the facilities. No more than 25% of the parking
spaces shall be designated for use by compact vehicles and compact
spaces shall be distributed evenly throughout the parking area.
E. Company shall provide for overnight camping use
and all related facilities in the recreational vehicle park areas.
M4
7?
III. Company, in consideration of the commitment of City
to approve the contemplated development as generally described in
this Agreement, stipulates and agrees as follows:
A. Company agrees to design and construct all new
development in accordance with the applicable Building and Zoning
ordinances of the City of Newport Beach and, specifically, agree
to construct new development in conformance with the following:
1. No structure, nor any portion of the
structure, shall exceed a height of 38.5 feet. -Mechanical
equipment may be permitted in excess of the basic 35 foot height
limit provided the equipment does not exceed a height of 38.5 feet
and is fully screened from public view. No structure shall exceed
three (3) stories and the family inn shall be constructed with a
pitched roof. Chimneys and vents are permitted to exceed the
height limit specified in this paragraph only to the extent
required to comply with state law or local ordinances;
2. Except as otherwise provided in this
agreement, parking for all new development will be in conformance
with the parking standards of the City of Newport Beach as set
forth in Chapter 20.30 of the Newport Beach Municipal Code; and
3. All signs and sign structures shall conform
to the provisions of Chapter 20.06 of the Newport Beach Municipal
Code.
B. Company shall comply with the Traffic Phasing
Ordinance and Fair Share Ordinance of the City of Newport Beach.
Company shall have satisfied Traffic Phasing and Fair Share
%3
requirements upon payment of the sums specified in this section.
Amendments to the Traffic Phasing or Fair Share ordinance which
would otherwise increase the fees to be paid by County or Company
shall not be applicable to the development contemplated in this
agreement. The appropriate method and time for the payment of
these fees has been difficult to determine in that: (1) while the
early phases of development will not generate substantial levels
of traffic over and above those which now exist, infrastructure
necessary to accommodate the family inn and other traffic
intensive uses will be constructed during the initial phases of
the project; and (2) the number of building and grading permits
required for each phase of the project, and the potential that
development within each phase will not proceed at the same time,
make it extremely difficult for the parties to determine what
percentage of Traffic Phasing or Fair Share Fees should be paid in
conjunction with any specific permit. The method of payment
specified in this Agreement represents the parties best efforts to
establish a fee schedule consistent with the intent of the Fair
Share and Traffic Phasing Ordinances.
1. Company shall pay $600,000 to comply with
the provisions of the Traffic Phasing Ordinance. This sum will be
used to reimburse the City for a portion of the $2,058,000 spent
to date, and the additional $724,000 to be spent in the 1988 -89
fiscal year, on circulation system improvements which were
required, in part, because of traffic generated by this project.
Company and County have benefitted by the City's early
7Y
construction of these improvements which were to have been funded,
in part, by the $600,000 payment required by the original
agreement.
2. Company shall pay Fair Share fees in the
sum of $235,402. This fee is based upon "new traffic" of 5,213
average daily trips, multiplied by the current rate of $99.27 a
trip and reduced by a credit of $282,902 for master plan
circulation system improvements funded by the Traffic Phasing
Ordinance payments required by this Agreement.
3. The Fair Share and Traffic Phasing
Ordinance fees required by this Agreement shall be paid as
follows:
a) The sum of Twenty Five Thousand
($25,000) Dollars concurrent with the execution of this Agreement;
b) The sum of Seventy Five Thousand
($75,000) Dollars prior to the issuance of the first building
permit for any of the projects described in Phase 1 (RV Park, Day
Use, Boat Launch, Boat Storage, Marine Repair Facility, Coffee
shop and Operations Center);
C) The sum of Seventy Five Thousand
($75,000) Dollars prior to the issuance of the first occupancy
permit for any project described in Phase 1;
d) The sum of Five Hundred ($500)
Dollars per slip to be paid prior to the issuance of the final
building or harbor permit necessary to the construction of the
slips (the Fair Share and Traffic Phasing fees totalling $835,402
V
'.17S
have been calculated on the assumption that 200 new boat slips
will be constructed. In the event less than 200 boat slips are
constructed, the Traffic Phasing and Fair Share fees required by
this Agreement shall be reduced by a sum equal to the difference
between the 200 slips predicted and the actual number constructed'
multiplied by $500.)
e) The sum of Fifty Thousand ($50,000)
Dollars prior to the issuance of the first building permit for the
first building permit for the construction of a restaurant on the
site formerly occupied by Anthony's Pier II;
f) The sum of one Hundred Thousand
($100,000) Dollars prior to the issuance of the first building
permit for the family inn;
g) The sum of Four Hundred Ten Thousand
Four Hundred Two ($410,402) Dollars prior to the issuance of the
first occupancy permit for the family inn.
4. The fees required by the preceding
paragraph shall be paid by Company or by Company's sublessee.
5. The County, City and Company will meet and
confer on the specific circulation system improvements to be
financed by Company's payment of the Fair Share and Traffic
Phasing fees required by this Agreement, to the extent funds
remain after consideration of improvements previously made by
City. The parties acknowledge that, to the extent possible,
Company's payments should be used to finance improvements to those
I/
7'6
components of the City's circulation system most heavily impacted
by the development authorized in this Agreement.
C. Company shall construct an interpretive center, -
to be located near the northeast corner of the property. The
function of the interpretive center shall be the provision of
information and educational materials relative to the Upper
Newport Bay Ecological Reserve. Educational programs offered by
the interpretive center shall be coordinated with the Department
of Fish and Game'and the interpretive center shall be--integrated
into a trail system, approved by the Department of Fish and Game,
that will allow interested persons access to portions of Upper
Newport Bay.
D. Company agrees to construct a launching area
for human- powered and small sail craft and this launch area shall
be of sufficient size to accommodate, at a minimum, the current
use of the area for the launching of small sail boats and human -
powered craft by members of non- profit organizations such as the
Boy Scouts, Girl Scouts or similar organizations.
E. Company shall construct a bike trail, the
design, width and location of which is subject to the approval by
the County's Director of Harbors, Beaches and Parks /EMA and the
City Engineer, connecting Back Bay Drive with Bayside Drive. No
admission or user charge shall be imposed upon persons for use of
trail. Bicyclists shall be allowed access to the interpretive
center. Company shall install bike racks along the trail
adequate in number to accommodate demand. The bike trail may be
1
A
used by the City, County and other public entities engaged in
constructing, repairing or maintaining public facilities or
landscaping. The bike trail shall be designed to allow convenient
access for public vehicles engaged in the maintenance and repair
work.
F. Transient occupancy taxes will be imposed upon
users of the family inn and recreational vehicle park in
accordance with the provisions of Chapter 3.16 of the Newport
Beach Municipal Code. Transient occupancy taxes will be
collected, processed, and paid in accordance with the provisions
of Chapter 3.16 of the Newport Beach Municipal Code.
G. Company, with respect to any use of the
property which requires the payment of any tax or fee, for the
issuance of any permit, pursuant to the provisions of Title 5 of
the Newport Beach Municipal Code, agrees to pay such fee or tax
and /or obtain the required permit and comply with any and all
conditions imposed upon the issuance of the permit;
H. The following uses of the property shall not be
permitted:
1. Skateboard courses;
2. Fireworks displays except as approved by
the City Council of Newport Beach;
3. Small animal or reptile zoo;
4. The use of loudspeakers for paging or
announcements outside of any structure provided, however,
lifeguards may use such equipment for safety and beach control
purposes; and
5. Amplified music, except in the family inn
or other structure, and in no event shall amplified music provided
by Company, its lessees, licensees or operators of the property,
exceed 55 dbs when measured at a point 50 ft. distant from any
exterior wall.
I. Grading and building permits shall be issued by
the City of Newport Beach and may contain appropriate- conditions
to ensure that construction activities do not adversely impact the
citizens of Newport Beach. Such conditions may include, but are
not necessarily limited to, the following:
1.
Designation
of specified
haul routes;
2.
Restrictions
on hours of
activity; and
3.
Installation
of erosion
control facilities
to ensure that silt does not enter the Bay from the construction
site.
J. Final design of the project shall incorporate
the following:
1. A lighting system designed and maintained
to conceal the light source and minimize light spillage and glare
offsite;
2.
The
incorporation
of
water - saving devices;
3.
The
installation
of
grease traps in all
restaurant facilities;
7s
�1
4. Conformance with energy requirements as
specified in Title 24 of the California Administrative Code;
5. Access and fire suppression systems in
accordance with the requirements of the Fire Department of the
City of Newport Beach; and
6. A landscape plan which emphasizes the use
of drought resistant native vegetation, irrigated with a system
designed to avoid surface runoff or overwatering, with the
landscaping to be installed during the initial phase of
construction or as early as practicable once conflicts with other
construction activities are resolved.
IV. City agrees to provide a level of services to
Newport Dunes appropriate to the uses developed on the site and
consistent with that provided other properties in the City,
including, but not limited to, water, fire and police.
V. The promises and commitments of the parties as set
forth herein, are intended to bind the parties now and in the
future. The parties understand that this Agreement is similar to
a Joint Powers Agreement, and, as such, contains commitments of
both City and County sufficient to bind future boards and
councils, notwithstanding any change in the composition thereof.
City and County hereby expressly waive and give up any right to
challenge the validity of this Agreement, or any specific term or
condition hereof, based upon the contention that the legislative
bodies of cities or counties are not empowered to bind future
boards or councils, and each of the parties hereto stipulates that
i
the consideration set forth in this Agreement is adequate to
support this waiver.
VI. County shall not allow, and Company shall not
construct, any development on the property exceeding that
contemplated by this Agreement, without the concurrence of the
City Council of the City of Newport Beach. Any plan for future
development, not contemplated by this Agreement, must be
accompanied by adequate environmental documentation as required by
law, and will be processed through the Planning Commission and
City Council of the City of Newport Beach in accordance with the
provisions of Chapter 20.80 of the Newport Beach Municipal Code.
VII. The parties hereto recognize that the approval of the
California Coastal Commission and the State Lands Commission, will
be required for development of the property, and County and
Company covenant that, in requesting such approval, they will
seek no development in excess of that contemplated herein. City
upon request by County or Company agrees to notify, in writing,
all agencies which are required to approve the development
contemplated in this Agreement of its support and City will
endeavor to appear at public hearings before any Board or
Commission reviewing a proposal for such development or any
portion thereof, to express its support for the project. To the
extent that the California Coastal Commission and /or State Lands
Commission impose requirements upon County and Company not set
forth in, or at variance with, the provisions of this Agreement,
County and City agree to accept and incorporate as amendments to
MR
VA
this Agreement all said changes and /or variances, so long as said
changes and /or variances do not expand or increase the
concentration, intensity, density or type of the development as
contemplated by this Agreement. All parties understand that this
Agreement is intended to establish the limits of development and'
not to guarantee construction or development. County and Company
shall endeavor to notify City of any public hearing or meeting
which may relate to the development contemplated by this
Agreement at least ten (10) days prior to the date of such- meeting
or hearing. Notice shall be given as provided in this Agreement.
To City: City Attorney
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92663
To County: Director, Harbors, Beaches
and Parks /Orange County
Environmental
Management Agency
P.O. Box 4048
Santa Ana, CA 92702
To Company: Newport Dunes Partnership
c/o David Cherashore
998 West Mission Bay Drive
San Diego, CA 92109
VIII. This Agreement is in furtherance of a plan for
redevelopment of the property. County and Company seek to
transform underused portions of the property to their economic
advantage by constructing visitor - serving facilities of greater
intensity than now exist. City seeks to obtain certain offsite
benefits, including, among others, circulation system
improvements. All parties agree and recognize that it will not be
practical to restore this property to its previous state once any
Foil
SZ:
significant portion of the contemplated development is undertaken.
The parties hereto have made significant and irrevocable
commitments and have each given up certain rights and powers in
order to achieve this agreement. The parties agree that damages
would not be an adequate remedy for the failure of one of -the
parties to carry out its obligations under this Agreement, both
because the property and this Agreement are unique, and because it
would be very difficult to estimate the amount of damages which
could, or would, properly compensate the other parties in the
event of such failure or breach.
Thus, the parties agree that specific performance,
rather than damages, is the only remedy which would adequately
compensate the other parties in the event of the failure of one
party to comply with its duties and obligations as set forth in
this Agreement.
IX. In the event Company fails to comply with its
obligations pursuant to this agreement, County shall have the
right to perform and shall be entitled to the rights and benefits
confered thereby.
X. The provisions of this Agreement shall be binding
upon and inure to the benefit of the parties and their respective
successors and assigns.
XI. No modification, amendment or other change in this
Agreement or any provision thereof shall be affected for any
purpose unless specifically set forth in writing and signed by a
duly authorized representative of the parties hereto.
Executed the day and year first above written.
CITY
By:
Mayor
City of Newport Beach
ATTEST:
City Clerk
X
III/
APPROVED AS TO FORM:
COUNTY OF ORANGE
By: � >
The Chairman of its Board of
Supervisors
SIGNED ANID CE TIRED TFAT A COPY OF
THIS LX- CU',IE ?vT HAS EEE" F DZENE -ED TO
THE CMWAN OF THE. BOARD.
County Counsei, UNDA D. r,D3:FiT5 CEC 13 19
t ate— Clerk of the Board of Supervisors
\ ' COMPANY County of Orange, Calilorrea
NEWPORT DUNES PARTNERSHIP
A California Partnership
By: cc���
Dfty'� �.
v
A t--.) = L . s �,'^ r-s
FIRST AMENDMENT TO AMENDED
NEWPORT DUNES SETTLEMENT AGREEMENT
This First Amendment to Amended Newport Dunes Settlement
Agreement ( "First Amendment ") is made as of December 12, 1990 by
and between THE CITY OF NEWPORT BEACH, a Municipal Corporation.and
Charter City, hereinafter referred to as "City ", THE COUNTY OF
ORANGE, a Political Subdivision of the State of California,
hereinafter "County ", and NEWPORT DUNES PARTNERSHIP, a California
partnership, hereinafter "Company ", who agree as follows:
1. This First Amendment is executed in contemplation of the
following facts and circumstances:
(a) City, County and Company are parties to that certain
Amended Newport Dunes Settlement Agreement, dated December 9,
1988 ( "Settlement Agreement ").
(b) It is the intent of City, County and Company to amend and
modify certain of the provisions and conditions of the
Settlement Agreement; it is the express intention of City,
County and Company that except as expressly amended or
modified by the provisions and conditions of this First
Amendment, the Settlement Agreement shall remain in full force
and effect.
(c) The capitalized terms used in this First Amendment shall
have the same meaning as is otherwise ascribed thereto in the
Settlement Agreement.
2. Paragraph I.H is modified to include with the
improvements so described a marina club house and storage building,
together with appurtenant facilities, constructed in accordance
with the requirements of paragraph H.8 of the tettlement Agreement.
/
3. Paragraph I.H of the Settlement Agreement is hereby
amended and modified by adding the following provisions and
conditions thereto as paragraph 8:
"8. A marina club house and storage building and appurtenant
facilities shall be constructed upon the Property. The gross
floor area of the office and amenity uses shall not exceed
6,000 square feet and the gross floor area of the storage uses
shall not exceed 3,200 square feet. The fitness room within
the marina club house shall be no larger than the size shown
on the approved Conceptual Plans (approximately 475 square
feet) and all exercise equipment shall be located within the
fitness room. The marina club house shall contain no more
than two stories and the storage building shall be limited to
one story.
The marina club house shall be constructed at or below the
northerly prolongation of the sight line drawn from a point
five feet above Pacific Coast Highway (along the section shown
on the revised schematic site plan) to the top of the north
side of the proposed Family Inn.
The marina club house and storage building shall be available
only to tenants of the marina upon the Property and their
guests and access shall be controlled by Company. In the
event the City finds evidence that the marina club house
and /or storage building are being used by other than tenants
of the marina and that additional vehicular traffic is being
generated thereby, the City will so advise the County and the
County shall as part of its lease administration
,2= �7
responsibilities correct the situation to ensure that the
traffic impacts do not occur.
The marina club house and storage building and appurtenant
facilities shall substantially conform to approved Conceptual
Plans on file with the County and City and the architectural
theme of the marina club house and storage building and
appurtenant facilities shall be consistent with the
mediterranean style of existing Phase I improvements on the
Property. The pool, courtyard and related areas appurtenant
to the marina club house shall be sized, designed and
landscaped in substantial conformance with the "preliminary
landscape technical plan" on file with the City and County
and all landscaping shall be maintained at a height of at
least five feet below the highest point of the marina club
house.
Marina tenants and users shall be prohibited, and their leases
shall so provide, from undertaking and otherwise pursuing
commercial activities within the marina club house and storage
building including boat charters. However, the limitation on
charter activities shall not prohibit charters of up to and
including six passengers.
The marina club house shall include space for marina office
personnel and three distinct recreational amenity areas. The
amenity areas include a television room, fitness center and
club lounge. The storage building shall consist of large
lockers, laundry facilities, vending machines and the storage
area for marina maintenance equipment."
U
3• xxcept as expressly amended or modified by Lhe provisions
and conditions of this First Amendment, the Settlement Agreement
shall and .foes remain in full force and effect.
CITY J '�
By:
Mayor
C:
T ty of Newport Be;,rh
4�j \ F
City
APPROVED TO FORM:
y Atto:, •.ey
APPROV A: TO FORM:
County COL': •.sel
N: \2 \2529 \33220 \' :STAN
COUNTY OF�ORANGE
i
The Chairman of it:: Board
of Supervisors
SIGVED A ^;D CEP,!F: --. -� ;T A COav OF
THIS D0CU.',Z1!T H '.. DELNERED TO
330ARD.
J�
LNDA
Clerk o; ?r•.e 3on,- •...Aenjsars
^unj; of
COMPANY
NEWPORT DUNES PARTNEP.`_:: =p,
a Cali pnia partner—'-
By l� ✓ O —
Anne L. Evans
-X-
I
M
w�
a �
Epg' s�i 9 y -0.• � i @ w���
� o
'1//�\1I 4
v
I Y
\ 4
tla
i
�y
e�r
as