HomeMy WebLinkAbout15 - Newport Dunes Settlement AgreementSEW PpRr CITY O F
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City Council Staff Report
Agenda Item No. 15
July 10, 2012
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
Community Development Department
Kimberly Brandt, AICP, Director
949 - 644 -3226, kbrandt(c newportbeachca.00v
FROM: City Attorney's Office
Aaron C. Harp, City Attorney
949 - 644 -3131, aharp(o)newportbeachca.gov
PREPARED BY: Kimberly Brandt, Director
APPROVED:�1 nr
V V
Second Amendment to the Amended Newport Dunes Settlement
TITLE: Agreement among the City of Newport Beach, County of Orange,
Waterfront Resort Properties L.P., and Newport Dunes Marina,
LLC, located at 1131 Back Bay Drive (PA2012 -080)
ABSTRACT:
City Council approval is requested for the proposed second amendment to the Amended
Newport Dunes Settlement Agreement which 1) incorporates the maximum allowable gross
square footage for buildings established by the City of Newport Beach General Plan, 2)
allows for modifications to the location of existing and future land uses, and 3) documents
both current and outstanding property owner obligations, including the payment of fees. The
amended agreement also includes a settlement payment of $30,000.
RECOMMENDATION:
a) Determine that the approval of the Second Amendment to the Amended Newport
Dunes Settlement Agreement is exempt from the California Environmental Quality Act
under Section 15305 of the California Environmental Quality Act (CEQA) Guidelines -
Class 5 (Minor Alterations in Land Use Limitations) and direct staff to file a notice of
exemption.
b) Approve the Second Amendment to the Amended Newport Dunes Settlement
Agreement between the City and the County of Orange, Waterfront Resort Properties
L.P., and Newport Dunes Marina, LLC; and
c) Authorize the City Manager to execute the amendment.
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Newport Dunes Settlement Agreement
Page 2
FUNDING REQUIREMENTS:
See analysis below.
DISCUSSION:
Background
The Newport Dunes is a 100 -acre State tidelands property located on the Upper Newport
Bay. The Newport Dunes is held in trust by the County of Orange and leased to a private
operator.
In 1983, the City, the County of Orange, and Newport Dunes, Inc. (predecessor to Waterfront
Resort Properties, L.P. and Newport Dunes Marina L.L.C.) signed a settlement agreement
(Agreement) to resolve jurisdictional and entitlement disputes relating to the development of
the Newport Dunes. The Agreement (as amended in 1984, 1987, 1988, and most recently
1990) limits the land uses and development at the Newport Dunes. The key development
entitlements contained in the Agreement include:
• 444 -space recreational vehicle (RV) park
• 275 -room family inn
• 430 -slip marina
• 400 -space dry boat storage
• 4,500- square -foot coffee shop (Back Bay Bistro)
• 2 additional restaurants totaling 27,500 square feet of net public area (NPA)'
The development entitlements outlined in the Agreement were later incorporated into the
General Plan by reference in Table LU2 of the Land Use Element.
Analysis
Waterfront Resort Properties, L.P. and Newport Dunes Marina L.L.C. (Company), the current
lessees and operators of the Newport Dunes, are seeking to amend the terms and provisions
of the Agreement. This amendment is deemed necessary in order to confirm and clarify
certain provisions of the Agreement, to reflect the current status of the development of the
property, and to address the anticipated continued development of the facilities permitted
under and contemplated by the Agreement. The key changes to the Agreement are
summarized as follows:
' "Net Public Area" is defined as the total area accessible to the public within an eating and/or drinking
establishment, excluding kitchens, restrooms, offices pertaining to the use, and storage areas.
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Newport Dunes Settlement Agreement
Page 3
Maximum Floor Area Limit. The amendment establishes a maximum floor area of
567,000 square feet that reflects the development limit established by the General
Plan. While the current Agreement identifies floor area limits for certain uses, it does
not contain an overall floor area limit.
• Reapportionment of Restaurant Floor Area. A total of 32,000 square feet of net public
area (NPA) for restaurant uses would be permitted on the entire property. The
amendment removes the current prohibition against transferring restaurant floor area
from the east side of the lagoon to the west side. Any reapportionment of restaurant
floor area would be subject to review and approval by the Community Development
Director.
• Back Bay Bistro. The amendment authorizes the transfer of 4,600- square -feet NPA of
the 27,500- square -feet NPA from the west side of the lagoon to the Back Bay Bistro
located on the east side of the lagoon. A total of 9,100 square feet of NPA would be
permitted. This is intended to reflect the existing improvements to the restaurant,
including an enclosed outdoor patio area and an operable windscreen surrounding the
exterior of the outdoor dining and bar areas.
Location of Charter Boats. The amendment removes the restriction that limits the
location of charter vessels for commercial purposes to the west side of the lagoon.
The pedestrian bridge across the lagoon effectively prevents boats from entering and
exiting the lagoon. The amendment would allow charter vessels for commercial
purposes anywhere on the property, subject to the issuance of a marine charter
permit.
• Interim Dry Boat Storage. The amendment allows 50 interim spaces on the Family Inn
site, an unused area of the RV park, or another appropriate location agreed to by all
parties. These additional 50 spaces would be removed prior to the issuance of a
certificate of occupancy for the Family Inn. The existing dry 286 -space boat storage
on the east side of the lagoon would be maintained, and could be expanded to a
maximum of permanent 400 spaces currently authorized by the Agreement. Boat
storage may be relocated elsewhere on the property.
• Boat Launching Ramp. The amendment allows the number of lanes at the boat
launch ramp to be reduced from 7 lanes to 6. This is intended to reflect existing
conditions. Also, restriping for 7 lanes would result in lanes too narrow for many
boats.
• Boat Trailer Parking. The amendment would reduce the number of required boat
trailer parking spaces from 185 to 120 to reflect existing conditions. The Company
believes that parking will be adequate based upon the anticipated use of the site.
• Alternative Recreational Vehicles. Subject to the approval of the Community
Development Director, the Company may install alternative recreational vehicles
(ARVs) in the RV park. This is provision acknowledges the current practice renting
portable, prefabricated trailer "cottages" in the RV spaces. Each ARV must be no
larger than 400 square feet, have at least one axle, be registered with the State
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Newport Dunes Settlement Agreement
Page 4
Department of Housing and Community Development, and operated in a manner
consistent with all State laws and regulations regarding recreational vehicle parks.
The ARV units would be included within the total allowable 444 RV spaces and
transient occupancy taxes would apply.
The proposed amended Agreement is attached as Attachment CC 1
Fiscal Impacts
The amended Agreement includes a compromise and settlement of disputed claims. The
Company agrees to pay to the City the sum of $30,000 to cover the costs incurred by the
City to resolve the areas of dispute between the parties. In addition, the Company will
comply with the Traffic Phasing Ordinance and Fair Share Ordinance. The Company owes
$835,402 in fees and has paid $275,000. The remaining $560,402 will be paid with future
phases of development pursuant to the amended agreement.
ENVIRONMENTAL REVIEW:
The project qualifies for exemption under Section 15305 of the California Environmental
Quality Act (CEQA) Guidelines - Class 5 (Minor Alterations in Land Use Limitations) because
the proposed changes to the Agreement only involve the reapportionment of development
currently authorized by the Agreement and incorporated into the General Plan by reference in
Table LU2 of the Land Use Element; the Newport Dunes property has an average slope of
less than 20 percent; and the proposed changes to the Agreement will not result in any
changes in land use or density.
Furthermore, the land use and development proposed are consistent with those analyzed by
the Environmental Impact Report for the Newport Dunes Redevelopment certified by the
County Board of Supervisors in 1980 and the Environmental Impact Report for the General
Plan 2006 Update certified by the City in 2006.
The agenda item has been noticed according to the Brown Act (72 hours in advance of the
meeting at which the City Council considers the item). Also, a notice of this item was mailed
to the associations of the residential communities adjacent to the property.
Submitted by:
/ 7 //L�i/
Kimberly Brand O , - .
Director `
Attachments: CC 1 Second Amendment To Newport Dunes Settlement Agreement
CC 2 Newport Dunes Map
4
City Council
Attachment M
Second Amendment to
Newport Dunes Settlement
0
SECOND AMENDMENT TO NEWPORT DUNES SETTLEMENT AGREEMENT
THIS SECOND AMENDMENT TO NEWPORT DUNES SETTLEMENT AGREEMENT
(this "Amendment "), entered into this day of 2012 ( "Effective Date "),
among the CITY OF NEWPORT BEACH, a municipal corporation and charter city
( "City "), the COUNTY OF ORANGE, a political subdivision of the State of California
( "County "), and WATERFRONT RESORT PROPERTIES L.P., a California limited
partnership, and NEWPORT DUNES MARINA, LLC, a California limited liability
company Qointly, the "Company "), is made with reference to the following facts:
A. The City, the County and the Company's predecessor in interest entered into an
Amended Newport Dunes Settlement Agreement that was executed on
December 9, 1988, and amended by First Amendment to Amended Newport
Dunes Settlement Agreement dated December 18, 1990 (as so amended, the
"Original Agreement "), with respect to the tidelands referred to in Recital A of the
Original Agreement, together with a small parcel of uplands (referred to herein as
the "Property ", and from time to time in this Amendment as a particular "Parcel"
as designated in Exhibit "A" attached hereto). The Original Agreement
constituted an amended and restated version of a prior agreement, as amended,
which was entered into in settlement of a City lawsuit that challenged, on
environmental and other grounds, the County's approval of a redevelopment
plan for the Property.
B. The Property is the subject of an Amended and Restated Lease between the
County of Orange and the Company executed on August 25, 2009 (the
"Lease ");
C. Company is the current lessee and operator of the Property pursuant to the
Lease and the successor to Newport Dunes Partnership, a California
partnership, the party to the Original Agreement. Pursuant to the Original
Agreement, Company and its predecessors have constructed upon the Property
certain recreational and visitor - serving facilities (the "Improvements "), which
facilities include the following:
(1) A recreational vehicle park ( "RV Park ") with four hundred six (406) spaces
of the four hundred forty -four (444) spaces authorized by the Original
Agreement;
(2) Related support uses for the RV Park including a convenience store, a
clubhouse, a laundry room, a meeting room, restrooms, maintenance facility and
two residential units( a manager's unit and an employee unit);
(3) An approximately four hundred thirty (430) slip marina, a clubhouse,
marina storage area and laundry and restrooms for marina tenants;
55364.00004 \7008423.7 7
(4) Dry boat storage with approximately two hundred eighty -six (286) spaces,
temporary dry boat storage upon Parcel C of the Property, a six -lane boat
launching ramp and a paved area designed to accommodate approximately 120
vehicles with boat trailers;
(5) A restaurant with related outdoor dining located on the east side of the
lagoon, adjacent to the boat launch ramp, which includes one (1) employee
residential unit;
(6) A swimming beach and related visitor serving facilities including parking
spaces, day use beach restrooms, water sports equipment rentals and
temporary and permanent improvements designed to protect daily visitors from
the elements; and
(7) Commercial, office, storage and meeting rooms, which may include the
Company's headquarters.
D. The purpose and intent of this Amendment is to amend the terms and provisions
of the Original Agreement in order to confirm and clarify certain provisions of the
Original Agreement, to reflect the current status of development upon the
Property consistent with the Original Agreement, and to address the anticipated
continued development upon the Property of the facilities permitted under and
contemplated by the Original Agreement, all as more particularly set forth herein.
NOW THEREFORE, the parties hereto agree as follows:
I. GENERAL PROVISIONS.
A. The foregoing Recitals are true, correct and incorporated herein by this
reference.
B. All terms used herein and denoted by capitalized initial letters shall have the
meaning set forth in the Original Agreement. When used herein, the term
the "Agreement" shall mean the Original Agreement as hereby amended.
Provisions included in "[ ] "s below are included to help clarify the references
to the Original Agreement as hereby amended and the status of
development of the Property as of the date of this Amendment. All square
footage references for improvements that have been constructed as of the
date of this Amendment are approximate. Prior to the issuance of a building
permit for the Family Inn the size of all existing improvements shall be
confirmed.
C. Unless otherwise expressly provided herein, any reference to square
footage shall mean gross floor area as defined in the City's Zoning Code.
55364.00004 \7006423.7 2 2
D. The parties agree that the total developed area shall not exceed 567,500
feet of gross floor area ( "Maximum Allowable Development Area ") as
provided for in the City's General Plan as of the Effective Date, provided,
however, that the following improvements shall not be considered a part of
the gross floor area for purposes of determining whether the Maximum
Allowable Development Area has been met or exceeded: (i) any covered
dry boat stacking facility, as stated in Section IIIA, below, whether covered
only or fully enclosed, and (ii) any temporary enclosure permitted pursuant
to Section LC of the Agreement [as hereby amended pursuant to Section II,
below].
E. City agrees that the development of the Property completed to date was
completed generally in accordance with the terms, provisions and intent of
the Original Agreement. Consistent with the terms of that certain letter
dated August 19, 2011, Company has submitted to the City and the City
has approved plans for the bar area improvements installed in the enclosed
outdoor patio area of the Back Bay Bistro restaurant, and the City will
issues building permits with respect to the same upon the mutual execution
and delivery of this Amendment. Upon the execution of this Amendment,
Company shall have the ability to reapportion the square footage assigned
to the approved uses as provided herein.
F. All future uses and development contemplated in the Agreement and not
completed to date shall be subject to and comply with the City's applicable
Municipal Code provisions and permitting requirements. Company shall
secure all required permits before commencing any activity requiring a City
permit or approval. The City retains its sole and unfettered discretion, as
required by law, as to all future decisions and actions which would permit
development of the Property with facilities in excess of the development
described in the Agreement.
II. ENTITLEMENT. Section I of the Original Agreement is hereby amended and
restated to read in its entirety as follows:
I. In consideration of the covenants and promises made by County and Company
in this Agreement, City agrees that the Property may be used for the following
purposes and shall approve the development of the Property contemplated in
this Agreement, 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 use and development of the property
authorized by this Agreement is specified in Sections II and III of this Agreement.
A. Family Inn. The construction of a family inn (the "Family Inn "), not to
exceed two hundred seventy -five rooms (275), to be located on Parcel C
of the Property. The Family Inn has not been constructed as of the date
55364.00004 \7008423.7 3 9
of this Amendment and the construction and operation of the Family Inn is
subject to the following:
(i) 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 Family Inn;
(c) 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.
(ii) The Family Inn will be constructed in accordance with the Building
and Zoning Ordinances of the City of Newport Beach, including without
limitation the requirements set forth in Sections III.A., B and I [as hereby
amended, pursuant to Section IV, below].
(iii) The structure which houses the family Inn shall not exceed
500,000 sq. ft. of gross floor area inclusive of area used for the service,
storage (except enclosed dry boat storage as provided for in (v) below)
and preparation of food or beverage.
(iv) The Family Inn may include restaurant uses and facilities as
permitted under Section I.B., below.
(v) As an interim use and pending construction of the Family Inn,
Company may install up to 450 dry boat storage spaces. It is anticipated
that such storage spaces will be at grade upon Parcel C or the portions of
Parcel A not currently in use for the recreational vehicle park, but such
spaces may be located in any appropriate location reasonably agreed to
by the Parties. If the storage spaces are enclosed, the gross floor area of
such enclosed structure shall not count toward Maximum Allowable
Development Area. Company acknowledges the Original Agreement
authorized 400 storage spaces. The additional '50 spaces referenced in
this Section shall be allowed on an interim basis and shall be removed
prior to the issuance of a certificate of occupancy for the Family Innis
issued by the City.
B. Restaurant Uses. The use and development of a total of thirty -two
thousand (32,000) square feet of net public area (as defined in the City's
Zoning Code as the same may be amended from time -to -time) of
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55364.00004 \7008423.7 4
restaurant facilities upon the Property. [Certain restaurant facilities
contemplated by this Amendment have been constructed as of the date of
this Amendment, and other restaurant facilities contemplated by this
Amendment have not been constructed as of the date of this
Amendment.] Such use and development shall be included within the
Maximum Allowable Development Area and may include:
(i) The construction of nine thousand one hundred (9,100) square feet
of net public area of restaurant uses on the east side of the lagoon
including, without limitation, outdoor patio dining and bar areas (including
alcoholic beverage service) and an operable windscreen surrounding the
exterior of the outdoor dining and bar areas [which restaurant has been
constructed as of the date of this Amendment]. The structure for such
restaurant use may include in addition to the restaurant use an apartment
for employee residence use, the square footage of which shall not be
deducted from the maximum restaurant square footage permitted under
this Section 1.6(i) but shall be included for purposes of determining the
Maximum Allowable Development Area. The employee apartment shall
not exceed eight hundred (800) feet of gross floor area. [which employee
apartment has been constructed as of the date of this Amendment].
(ii) The construction of not more than twelve thousand five hundred
(12,500) square feet of net public area of restaurant uses within and
adjacent to the Family Inn [which has not been constructed as of the date
of this Amendment].
(a) Any portion of such restaurant and food serving area outside
of the structure which houses the Family Inn shall be limited to those
areas which are intended to primarily serve guests of the Family Inn, such
as the pool and cabana -area;
(b) 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.
(iii) The construction of a new restaurant not to exceed ten thousand
four hundred (10,400) square feet of net public area, which restaurant is
anticipated to be located on Parcel B -2. [This restaurant has not been
constructed as of the date of this Amendment.]
(iv) The square footage of permitted development for restaurant uses
may be reapportioned in a manner other than that specified in the
preceding paragraphs provided:
55364.00004 \7008423.7 5 22
(a) The reapportionment of restaurant uses is on a "per square
foot" basis such that there is no increase in net public area of permitted
restaurant development on the Property; and
(b) Any reapportionment of restaurant uses between the east
and west side of the lagoon shall be subject to review and approval by the
Community Development Director of the City of Newport Beach, and may
be conditioned upon submittal of additional information or studies as
required in the Community Development Director's reasonable discretion.
(c) Any reapportionment of restaurant uses between or among
Parcels B, B -2 and /or C shall be subject to review and approval by the
Community Development Director.
(d) Company may appeal the decision of the Director under
either clause (b) or (c), above, as provided for in Chapter 20.84 of the
Newport Beach Municipal Code, as may be amended from time to time.
C. Commercial Uses. The construction of structures on the Property which
will house commercial, office, storage or retail uses not to exceed twelve
thousand (12,000) square feet. [Portions of such structures have been
constructed as of the date of this Amendment.] The use of such
.structures shall be limited to those permitted by the Lease and the City of
Newport Beach Municipal Code, and may include:
(i) Company headquarters, office and administrative space;
(ii) Space for parking, equipment, storage, a first aid station and other
ordinary and necessary uses in connection with the operation of the
Property; and
(iii) Meeting rooms for not more than one hundred (100) persons in the
aggregate.
D. RV Spaces and Facilities. The construction of a recreational vehicle park
not to exceed four hundred forty -four (444) spaces, all of which will have
full service capabilities, including electricity, water and sewer, together
with a recreational vehicle support center. [Four hundred six (406)
recreational vehicle spaces and the recreational vehicle support area
described below have been constructed as of the date of this
Amendment.]
(i) The recreation vehicle support center shall consist of not more than
eight thousand five hundred (8,500) square feet of gross floor area and
may contain among other things (i) a small convenience store and
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55364.00004 \7008423.7 6
equipment rental facility, (ii) a recreation /meeting room and clubhouse,
and (iii) restrooms, showers and a laundry facility.
(ii) The recreational vehicle support center shall also include a storage
area and swimming pool, and may contain a maintenance facility and a
manager's unit of approximately two thousand fifty (2,050) square feet
and an employee unit of approximately five hundred seventy -five square
feet.
(iii) Company may, subject to the approval of the City's Community
Development Director, install alternative recreational vehicles ( "ARV's ").
Each ARV shall contain no more than four hundred (400) square feet,
have at least one axle, shall be registered with the State Department of
Housing and Community Development and the presence of the ARV shall
be consistent with all State laws and regulations regarding recreational
vehicle parks. The Community Development Director shall have the right
to impose conditions on the appearance of any ARV that the Community
Development Director, in his or her reasonable discretion, considers
necessary or appropriate to ensure that the recreational vehicle park
maintains a pleasant appearance. In no event shall company install any
manufactured housing.
(iv) Company shall limit all occupancy agreements for RV spaces and
ARV's to no more than thirty (30) days, provided that nothing herein would
preclude an owner of an RV or an occupant of an ARV to sign a new
occupancy agreement after a thirty (30) day period has expired. In no
event shall any agreement entered into by the Company with owners of
RV's or occupants of an ARV entitle the guests to residency status or be a
Qualifying Rental Agreement, as that term is defined in Municipal Code
Section 3.16.020, as the same may be amended from time -to -time.
(v) The ARV units are included within the total allowable four hundred
forty-four (444) RV spaces. Company agrees that the City's Transient
Occupancy Tax, provided for in the City's Municipal Code Chapter 3.16,
as the same may be amended from time to time, shall apply to all RV
spaces and ARV's, and Company shall collect and remit such tax as
required by the Municipal Code.
E. Boat Slias /Marina. The construction of approximately four hundred thirty
(430) boat slips, a pedestrian bridge connecting the easterly and westerly
portions of the property, and a pump -out station. [Approximately four
hundred thirty (430) boat slips have been constructed as of the date of
this Amendment in a manner consistent with the requirements listed
below.] The right to construct and maintain the boat slips is subject to the
following:
55364.00004 \7008423.7 7 i3
(i) Boat slips constructed in the mouth of the lagoon, or within the
lagoon itself, shall not accommodate boats exceeding 28 ft. in length;
(ii) Boat slips constructed in the mouth of the lagoon, or in the lagoon
itself, shall be designated and constructed to ensure that there is minimal
interruption of the tidal flow in and out of the lagoon;
(iii) Overnight occupancy of boats moored in the mouth of the lagoon
or in the lagoon is prohibited and County and /or the Company shall take
all action necessary to ensure enforcement of this prohibition;
(iv) The pedestrian bridge constructed across the mouth of the lagoon
shall be elevated above the water surface, built on pilings, and designed
to minimally restrict tidal flows in and out of the lagoon as well as permit
the entry of dredging equipment (such as a removable center section).
[The pedestrian bridge has been so constructed as of the date of this
Amendment];
(v) A pump -out station shall be constructed and maintained at a
location convenient to boaters with sufficient capacity to service any boat
for which slip or mooring space is available at the Property, [which pump -
out station has been so constructed as of the date of this Amendment];
and
(vi) Company may charter vessels for commercial purposes from the
Property subject to issuance, by City, of a marine activities permit and
compliance with all City ordinances. The discretionary review and
consideration of the marine activities permit may include additional
environmental or other analysis.
F. Marina Clubhouse and Storage. A facility of not more than nine thousand six
hundred (9,600) square feet for a marina clubhouse (including, without
limitation, space for marina office personnel, a television room, fitness center
and club lounge) and for storage facilities, may be constructed adjacent to
the boat slips. [The structure(s) authorized in this subsection have been
constructed as of the date of this Amendment.]
(i) The marina clubhouse shall include space for marina office personnel
and recreational amenities consisting of a television room, fitness center and
lounge. The fitness center within the marina club house shall be no larger
than 475 square feet and all exercise equipment shall be located within the
fitness center.
(ii) The storage facility shall not to exceed 1 story, and may include,
without limitation, lockers, laundry, vending and appurtenant facilities.
55364.00004 \7006923.7 8 2 "T
(iii) Access to the marina clubhouse shall be limited to tenants of the
marina, guests of tenants, invitees and Company personnel and shall be
controlled by the Company.
G. Temporary Enclosure(s). [Prior to the date of this Amendment, Company
has from time to time installed one temporary enclosure as depicted on
Exhibit C.] The Company may install one temporary enclosure as
depicted on and in the location specified on Exhibit C to protect visitors
and invitees from the elements and to minimize the impact of event
related noise, subject to the following:
(i) The total surface area covered by the temporary enclosure shall
not exceed 14,000 square feet, provided however, that the 14,000 square
foot limitation maybe exceeded for specified events which will be subject
to review by the City and approval of a Special Event permit or such other
permit as may be required by the City at the time.
(ii) The temporary enclosure shall comply with all provisions of Title 15
of the Newport Beach Municipal Code as the same may be amended from
time -to -time.
(iii) In no event shall the temporary enclosure remain in place for more
than one hundred eighty (180) days during any twelve (12) month period,
provided, however, that the frame for the single temporary enclosure may
remain in place throughout the year.
(iv) Company may serve food and beverage in the temporary enclosure
unless service is prohibited by ordinance or the conditions to the Special
Event permit for the event at which food and beverage are proposed to be
served.
(v) Company shall not be required to obtain a Special Event permit or
other permit for events to take place within the temporary enclosure,
unless otherwise required as a result of the nature of such event pursuant
to the Newport Beach Municipal Code.
(vi) Company may pursue additional temporary enclosures through a
Special Events permit pursuant to Title 11 of the City of Newport Beach
Municipal Code, as may be amended from time to time; a Limited Term
Permit pursuant to Title 20 of the City of Newport Beach Municipal Code,
as may be amended from time to time; or other permit as required by the
City of Newport Beach Municipal Code, as may be amended from time to
time.
III. ADDITIONAL REQUIRED FACILITIES. Section II of the Original Agreement is
hereby amended and restated to read in its entirety as follows:
55364.00004 \7008423.7 9 1 ,5
II. Company shall retain, and in certain cases upgrade and /or add to, certain
existing facilities and uses, as follows:
A. Dry Boat Storage. The existing dry boat storage on the east side of the
lagoon consisting of two hundred eighty six (286) spaces [as of the date of
this Amendment) shall be maintained, and Company shall have the right
to increase capacity to no more than four hundred fifty (450) spaces. The
increase in capacity may be accomplished by the construction or
installation of a facility that will allow stacking of boats. The storage facility
will be covered and will be administered to insure adequate security for
private property, provided, however, that any covered or enclosed dry
boat stacking facility shall be excluded from the gross floor area of
improvements upon the Property for purposes of determining whether the
Maximum Allowable Development Area has been met or exceeded.
B. Wash Down. Company shall retain or upgrade the wash -down facilities
located in proximity to the launch ramp;
C. Boat Trailer Parking. Company shall maintain at least one hundred
twenty (120) 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, by patrons of the restaurant and the dry boat storage
facility located near the boat launch facility, and, to the extent space is
needed and available, by beach users when the day -use parking area is
filled.
D. Beach and Day Use. 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, restrooms, facilities that
provide shade and cover from the elements, tables and benches,
lifeguards, and picnic areas. At least six hundred forty five (645) day use
area parking spaces, in additional to parking spaces specified elsewhere
in this Agreement, will be made available for persons using the facilities.
No more than 25% of such parking spaces shall be designated for use by
compact vehicles and compact spaces shall be distributed evenly
throughout the parking area.
E. Camping. Company shall provide for overnight camping uses and
facilities necessary to serve recreational vehicle owners and ARV
occupants.
F. Human - Powered Launch. Company agrees to maintain the existing
launch and storage area for human - powered and small sail craft.
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55364.00004 \7008423.7 10
G. Bike Trail. Company has constructed, and shall maintain, a bike trail, the
design, width and location of which has been approved by the City and
County, 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 maintain bike
racks along the trail adequate in number to accommodate demand. The
bike trail may be used by the City, County and other public entities
engaged in constructing, repairing or maintaining public facilities or
landscaping. The bike trail has been designed to allow convenient access
for public vehicles engaged in the maintenance and repair work.
IV. DEVELOPMENT RESTRICTIONS AND CONDITIONS. Section III of the
Original Agreement is hereby amended and restated to read in its entirety as follows:
III. Company, in consideration of the approval by the City pursuant to this
Agreement of the land use entitlements and the contemplated uses and
development as authorized by this Agreement, stipulates and agrees to the
restrictions and conditions specified in this Section.
A. Height. No structure, nor any portion of any structure or mechanical
equipment, shall exceed a height of thirty -eight and one half (38.5) feet.
Mechanical equipment may be permitted in excess of thirty -five (35) feet
in height provided it is fully screened from public view. In addition to the
height limit, 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 thirty -eight and one -half (38.5) foot height limit
only to the extent required to comply with state law or City ordinances.
B. Parking and Signage. Except as otherwise provided in this Agreement,
parking for all new development upon the Property and all signs and sign
structures shall conform to the requirements of Chapters 20.66 and 20.67,
respectively, of the Newport Beach Municipal Code, or any successor
ordinances, as in effect at the time of such new development or
installation of such new signs and sign structures, as applicable.
Notwithstanding the foregoing, such compliance shall not be so required
where the development or the signs or sign structures otherwise complied
with prior Newport Beach Municipal Code provisions in effect at the time
of the development or the signs or sign structures being replaced or
renovated, and compliance with such prior code satisfies the non-
conforming use provisions of the Newport Beach Municipal Code.
C. Traffic and Fair Share. Company shall comply with the Traffic Phasing
Ordinance and Fair Share Ordinance of the City of Newport Beach.
Company shall have satisfied Traffic Phasing Ordinance and Fair Share
Ordinance requirements upon payment of the sums specified in this
Section III.C. Consistent with the terms of the Agreement, amendments
55364.00004 \7008423.7 11 17
to the Traffic Phasing or Fair Share Ordinance enacted following the date
of the Agreement 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 is difficult to determine in that: (1) while the early
phases of development will not generate substantial level 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 Ordinance and
Traffic Phasing Ordinance in effect as of the date of the Agreement.
(i) Company has paid or shall pay (as set forth in clause (iii) below)
$600,000 to comply with the provisions of the Traffic Phasing Ordinance.
This sum was used to reimburse the City for a portion of the $2,058,000
spent prior to December 9, 1988 and an additional $724,000 spent in the
1988 -89 fiscal year, on circulation system improvements that were
required, in part, because of traffic generated by the development
authorized in the Agreement. Company and County have benefited by the
City's early construction of these improvements which were to have been
funded, in part, by the $600,000 payment required by the Agreement.
(ii) Company has paid or shall pay (as set forth in clause (iii) below)
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 rate of $99.27 a trip
(as of December 9, 1988) and reduced by a credit of $282,902 for master
plan circulation system improvements funded by the Traffic Phasing
Ordinance payments required by the Original Agreement.
(iii) As of the date of this Agreement, the sum of the Fair Share and
Traffic Phasing Ordinance fees required by this Agreement as provided in
clauses (i) and (ii) above has been calculated to be the sum of $835,402,
of which the Company has paid $275,000 to date as reflected in clauses
(a) through (d) below, and the sum of $560,402 remains to be paid as
reflected in clauses (e) through (g), below, all as more particularly having
been paid or to be paid as follows:
(a) The sum of Twenty Five Thousand ($25,000) Dollars was
paid concurrently with the execution of the Original Agreement;
55364.00004\7008423.7 12 12
(b) The sum of Seventy Five Thousand ($75,000) Dollars was
paid prior to the issuance of the first building permit for any of the projects
described in Phase 1 of the Original Agreement (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 was
paid prior to the issuance of the first occupancy permit for any project
described in such Phase 1;
(d) The sum of Five Hundred ($500) Dollars per slip has been
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
totaling $835,402 have been calculated on the assumption that 200 new
boat slips would be constructed under the Agreement;
(e) The sum of Fifty Thousand ($50,000) Dollars shall be paid
prior to the issuance of the first building permit for the first building permit
for the construction of a restaurant on Parcel B -2 [which sum has not
been paid as of the date of this Amendment];
(f) The sum of One Hundred Thousand ($100,000) Dollars shall
be paid prior to the issuance of the first building permit for the Family Inn
[which sum has not been paid as of the date of this Amendment];
(g) The sum of Four Hundred Ten Thousand Four Hundred Two
($410,402) Dollars shall be paid prior to the issuance of the first
occupancy permit for the Family Inn [which has not been paid as of the
date of this Amendment];
(h) The fees required by this Section III.C. shall by paid by
Company or Company's successor(s);
(i) City agrees that,'to the extent feasible, Company's traffic -
related payments should be used to finance improvements to components
of the City's circulation system impacted by the development authorized
by this Agreement.
Q) Notwithstanding any contrary provision of this Agreement, to
the extent that the foregoing provisions regarding Fair Share fees and
Traffic Phasing Ordinance fees are determined to be the basis for
requiring the Company to comply with prevailing wage laws as to any
construction upon the Property, Company may in its sole and absolute
discretion waive the provisions of this Section III.0 so long as any such
waiver would not result in a reduction of the Fair Share fees and the
Traffic Phasing Ordinance fees which would be payable by the Company
55364.00004 \7008423.7 13 19
under the ordinances of the City of Newport Beach. If Company exercises
its rights under this provision to waive the Fair Share fee formula
established herein, Company shall pay the Fair Share fee in place as of
the date of permit issuance with no offset for the fees previously paid
under provisions of this Section III.C. Under no circumstances shall
Company pay less than the $560,402 still owing to the City under this
Section III.C.
D. Science Center Contribution. Company has contributed $20,000 to the
City to be used in the construction of the Back Bay Science Center on
Shellmaker Island or the enhancement of the natural resources in the
Upper Newport Bay Ecological Reserve. Educational programs offered at
the Back Bay Science Center shall, to the extent feasible, be made
available to Company's invitees and guests.
E. Transient Occupancy Tax. Transient occupancy taxes will be imposed,
collected, processed, and paid upon guests of the Family Inn and
occupants of RV spaces and ARV's in accordance with the provisions of
Chapter 3.16 of the Newport Beach Municipal Code, as the same may be
amended from time to time.
F. Tax and Permit. 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 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.
G. .Grading and Building Permits. Grading and building permits shall be
issued by the City of Newport Beach, and shall be issued in accordance
with and subject to all City ordinances, including, without limitation, water
quality control ordinances. Grading and building permits shall contain
appropriate conditions to ensure that construction activities do not
adversely impact the citizens of Newport Beach, including, without
limitation, designation of specified haul routes, restrictions on hours of
activity and installation of erosion control facilities to ensure that silt does
not enter Upper Newport Bay from grading or construction activities.
H. Design and Construction. Final design and construction of any
development authorized by this Agreement shall incorporate the following:
(i) A lighting system designed and maintained to conceal the light
source and minimize light spillage and glare outside of the Property
boundaries;
(ii) The incorporation of water- saving devices;
20
55364.00004\7008423.7 14
(iii) The installation of grease traps in all restaurant and food
preparation facilities;
(iv) Conformance with energy requirements as specified in Title 24 of
the California Administrative Code;
(v) Access and fire suppression systems pursuant to City ordinances;
and
(vi) A landscape plan that emphasizes the use of drought resistant
native vegetation, irrigated with a system designed to avoid surface runoff
and 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.
Amplified Music. Amplified music provided in outdoor areas upon the
Property shall comply with the recommendations (numbers 1 through 16)
set forth in the Wieland Associates, Inc. Evaluation of Noise Levels
Generated by Live Entertainment at the Newport Dunes Resort, Newport
Beach, dated April 24, 2002 (Revised May 15, 2002 (the "Wieland
Study ")), a copy of which is attached hereto as Exhibit "B ".
V. PROHIBITED USES. The following uses of the Property shall not be permitted:
A. Skateboard parks or courses;
B. Fireworks displays except when all required governmental permits and
approvals are obtained;
C. Any land use that is not expressly permitted on the Property pursuant to
the City's General Plan, Municipal Code or this Agreement;
D. Except in conjunction with outdoor amplified music as otherwise provided
in Section 111.1. of the Agreement, the use of loudspeakers for paging or
announcements outside of any structure provided, however, lifeguards
may use equipment for safety and beach control purposes; and
E. Except as otherwise provided in Section 111.1. of the Agreement, outdoor
amplified music. No provision of this Section V.E. shall be deemed to
prohibit amplified music within the Family Inn, the restaurant(s) on the
Property, meeting rooms or other structures, provided all requirements of
the City's Municipal Code are met.
VI. MUNICIPAL SERVICES. Section IV of the Original Agreement is hereby
amended and restated to read in its entirety as follows:
21
55364.00004 \7008423.7 15
IV. City shall provide a level of municipal services to Newport Dunes that is
consistent with that provided other similarly situated properties in the City
including, but not limited to, water, fire and police services.
VII. PROCEDURES. Section VI of the Original Agreement is hereby amended and
restated to read in its entirety as follows:
VI. County shall not allow, and Company shall not construct, any development on
the Property exceeding that contemplated by this Amendment, without first
securing all required permits and approvals from the City of Newport Beach. Any
plan for future development, not contemplated by this Amendment, must be
accompanied by adequate environmental documentation as required by law, and
shall be processed as required by the resolutions and ordinances of the City of
Newport Beach.
IX. PUBLIC AGENCY APPROVAL.
A. The first sentence of Section VII of the Original Agreement is hereby modified to
read in its entirety as follows:
The Parties acknowledge that the approval of the California Coastal Commission
and the State Lands Commission may be required for development of the
Property, and County and Company covenant that, in requesting any required
approval, they will seek no development in excess of that specifically authorized
by this Agreement.
B. The third sentence of Section VII of the Original Agreement is hereby modified to
read in its entirety as follows:
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
consider acceptance and incorporation of same 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, density or type
of the development as contemplated by this Agreement.
C. The notice addresses set forth in Section VII of the Original Agreement for the
County and for the Company are hereby amended to be:
TO COUNTY: County of Orange
OC Community Resources
Orange County Parks
13042 Old Irvine Boulevard
Irvine, California 92602
22
55364.00004 \7008423.7 16
TO COMPANY: Newport Dunes Marina, LLC
5150 Overland Avenue
Culver City, CA 90230
Attention: Warren L. Breslow
AND: Waterfront Resort Properties, L.P.
9431 Sunset Boulevard
Beverly Hills, CA 90210 -3406
Attention: Herbert M. Gelfand
X. SETTLEMENT PAYMENT. The Parties agree and acknowledge that this
Amendment is a compromise and settlement of disputed claims, or potentially disputed
claims, and that the furnishing of the consideration for this Amendment shall not be
deemed or construed as an admission of liability. In full and final satisfaction of any
claims or potential claims, perceived, actual, or otherwise, the Parties agree Company
shall pay to City the sum of Thirty Thousand Dollars ($30,000) ( "Settlement Amount ").
The Settlement Amount includes, but is not limited to, the costs incurred by the City as
a result of the potential claims.
XI. WILLFUL DEFAULT. In the event of material and willful default with respect to
any term, covenant or promise of the Agreement by Company relating to either the
Maximum Allowable Developable Area or the requirement for the obtaining of permits
with respect to development upon the Property, which material and willful default
continues beyond the cure period set forth in Section XII, below, in addition to the
remedy of Specific Performance set forth in Section VIII of the Agreement, City may
elect to impose either or both of the following remedies:
A. Company shall pay to City upon demand a fine in the sum of Ten
Thousand Dollars ($10,000) per occurrence; and
B. If such material and willful default continues for an additional period of
One Hundred Eighty (180) days following the imposition by the City of the
fine set forth in clause A, above, City may require Company to apply for
and diligently pursue a Development Agreement (Cal. Government Code
section 65864, et seq.), or other appropriate entitlement mutually
determined by the City and the Company, for all remaining development
or uses contemplated by the Agreement not then completed upon the
Property.
XII. NOTICE OF RIGHT TO CURE. Failure of either party to observe or perform any
term, obligation or provision or Company's failure to comply with the development
obligations and limitations herein or to obtain all required permits prior to commencing
an activity or event requiring said permit, shall constitute a default or material breach of
the Agreement. The non - defaulting party shall provide the defaulting party written
notice of the alleged default. The defaulting party shall have 30 days to cure, or if cure
23
55364..00004 \7008423.7 17
cannot be obtained within 30 days, shall commence and diligently pursue said cure
within such 30 day period.
XIII. AFFIRMATION. Except as otherwise expressly amended by this Amendment,
the terms and provisions of the Original Agreement shall remain in full force and effect.
[Signatures on following page]
55364.00004 \7008423.7 18 24
Executed the day and year first above written.
APPROVED AS TO FORM:
0
Aaron C. Harp
City Attorney for the
City of Newport Beach
ATTEST:
By:
Leilani I. Brown,
City Clerk
COMPANY:
Newport Dunes Marina LLC,
a California limited liability company,
By: WLB Group GP LLC
to
Warren Breslow, Manager
COUNTY:
CITY OF NEWPORT BEACH,
A Municipal Corporation
By:
David Kiff
City Manager for the
City of Newport Beach
WATERFRONT RESORT PROPERTIES
L.P., a California limited liability company
Formerly known as Tahoe Shores, Ltd.
By: De Anza Corporation,
A California corporation,
Its general partners
Herbert M. Gelfand
Chairman of the Board
Signed and certified that a copy of this COUNTY OF ORANGE
document has been delivered to the Chair
of the Board per G.C. Sec 25103, Reso
0
ATTEST:
Darlene Bloom
Clerk of the Board of Supervisors
Orange County, California
Chair, Board of Supervisors
215
55364.00004 \7008423.7 19
Attachments: Exhibit A - Property
Exhibit B — Wieland Study
Exhibit C — Temporary Enclosure
20
55364.00004 \7008423.7 20
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Apri l 24, 2002
(Revised May 15, 2002)
Mr. Timothy Quinn
Newport Dunes
1131 Back Bay Drive
Newport Beach, CA 92660
Project File 360 -02
Subject: Evaluation of Noise Levels Generated by Live Entertainment at
the Newport Dunes Resort, Newport Beach
Dear Mr. Quinn:
At the request of the City of Newport Beach, the Newport Dunes Resort has
applied for a use permit to address its live entertainment events. As part of the
permit process, the City has requested that an acoustical study be provided.
This report has been prepared in response to the City's request. Accordingly,
the following sections will discuss the applicable noise standards, provide a
description of the live entertainment events, and provide our findings and
recommendations.
City of Newport Beach Noise Standards
With respect to controlling noise intrusion from the live entertainment events,
the City of Newport Beach has two sets of standards: Chapter 10.26
"Community Noise Control ", and Chapter 10.32 "Sound- Amplifying
Equipment. " Each is briefly discussed in the following sections.
Chapter 10.26
The City's noise ordinance standards (Chapter 10.26) state that the allowable
average exterior noise level experienced in a residential area as a result of
activities at the Newport Dunes shall not exceed 55 dB(A) for any 15- minute
period during the daytime hours of 7:00 a.m. to 10:00 p.m. During the
nighttime hours of 10:00 p.m. to 7:00 a.m. the standard is 50 dB(A). The
maximum instantaneous noise level that is permitted is during the
daytime or 70 dB(A) during the nighttime. If the ambient t noise noise level exceeds
these standards, then the ambient shall be the standard. W%
Chapter 10.32
Wieland Associates, Inc.
Acoustical Consultants
With regard to the use of sound - amplifying equipment, Section 10.32.060,
27276 South Pointe Drive
Paragraph D states that "The volume of sound shall be controlled so that it will
Suite 114
not be audible for a distance in excess of one hundred (100) feet from the
Laguna Hills, CA 9265]
sound - amplifying equipment or sound truck, and so that the volume is not
Tel: 9491829 -6722
Fax: 949/829 -6670
www.wielandassocrom
M
NEWPORT DUNES
Pmject File 360 -02
unreasonably loud, raucous, jarring, disturbing or a nuisance to persons within the
range of allowed audibility." It should be noted that the Chapter 10.32 standards are
qualitative, or subjective, in nature. That is, there is no quantifiable limit on the amount
of noise that can be generated by the equipment, only that it can't be heard more than
100' from the equipment.
Newport Dunes Events
The Newport Dunes provides two types of events that are of concern in this study. These
are the Pavilion/Gazebo events and tent events. Each is described in the following
sections.
Pavilion/Gazebo Events
The Newport Dunes has` four pavilions and one gazebo along its beaches at which
outdoor parties with live entertainment occur. These parties can occur on any day of the
week, generally between the hours of 12:00 p.m. to 4:00 p.m. and the hours of 5:00 p.m.
to 10:00 p.m. Parties can occur at all four pavilions and the gazebo simultaneously.
Each performing artist or DJ provides histher own instruments, amplifiers and speakers.
To reduce noise levels at the homes in the Dover Shores community, the Newport Dunes
requires that all speakers be oriented away from the bay, and guards periodically check
• the noise levels with sound level meters.
U
Tent Events
The tent is a temporary structure that is erected in the boat trailer parking lot for visiting
groups and local social events. It remains there for a 4 -month period during the winter,
and for a 2 -month period during the summer. As with the pavilion events, each group
J--� renting the tent hires its own band or DJ. The Newport Dunes provides no audio systems
inside the tent; therefore, each band or DJ must provide their own equipment. Since the
• r•,1 tent events are private, the hours vary considerably, but rarely extend past 12:00 a.m.
V Typical audience sizes number around 250 -400 people.
ONoise Measurements
To identify typical noise levels that are generated by live entertainment at the outdoor
venues and the tent, the Newport Dunes hired a DJ, steel drum band and a rock band to
participate in demonstration tests on the evening of April 4, 2002. These tests were
conducted inside the tent and at Pavilion A. At both locations, the DJ and bands were
VJ asked to play typical selections at a normal volume for a period of at least ten minutes.
�L1 Inside the tent, a Larson Davis Model 2800 real -time analyzer was positioned at a
distance of 20 feet directly in front of the DJ or band. At Pavilion A, the DJ and band
v� were located under the canopies, with their instruments and speakers oriented towards
Q� Pacific Coast Highway. To assess the noise levels that are directed towards the Dover
• �"•1 Shores community, the analyzer was positioned at the edge of the pavilion's concrete pad
in the direction of the homes. During the tests two additional sound level meters were
�9
NEWPORT DUNES
Project File 360-02
positioned at nearby residential areas to document the noise levels that propagated from
the Newport Dunes. These positions were staffed by trained personnel to assess the
audibility of the demonstration tests.
The results of the noise level measurements at the Newport Dunes are summarized as
follows:
drum
band
Inside the Tent, 20' in Front
.5
At Pavilion A. to the Side of the Act
Note that the sound levels measured in the tent and at the pavilion have been weighted
Uusing both the C -scale and the more common A -scale. The C -scale ensures that the low-
frequency sound energy produced by the bass instruments is properly addressed in this
study. Since the A -scale significantly minimizes low- frequency noise in its calculation of
an overall noise level, the C -scale represents a more restrictive criteria.
Cn Figures 1 and 2 provide graphic representations of the average and maximum noise levels
measured inside the tent, respectively. Referring to the figures, it is noted that the rock
band produced significantly more low- frequency noise than either the DJ or the steel
`V drum band.
. r..4
U As indicated previously, noise measurements were also obtained at two locations in the
O surrounding residential community. These locations are identified in Figure 3, and the
C/) results of our measurements are provided in Appendix I. In general, the average noise
level (I-eq) in the surrounding community varied from 45 to 51 dB(A), depending on the
measurement location and its proximity to the nearby streets. However, at neither of these
locations was the music from the DJ, steel drum band, or rock band audible or
measurable above the ambient when played at the tent or at Pavilion A.
�l We were unable to gain access to the Sea Island community during the noise
measurements to assess the music's audibility. This community is located at about the
same distance from the tent as is the measurement position in the mobile home park on
Mayflower Drive. Since the music was not audible at the mobile home park, which is in
r--1 the propagation path of the music, it may be reasonably concluded that the music would
not be audible within Sea Island. Pavilion A is about 1/3 closer to Sea Island than it is to
the measurement position in the mobile home park. Thus, the music level could be 3 to 4
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WIELAND Noise Mea remem Loca ions 3
ASSOCIATES, INC.
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NEW PORT DUNES
Project File 36002
dB higher in Sea Island than in the mobile home park. However, this does not
necessarily mean that the noise will be audible within Sea Island, which is exposed to
significantly higher ambient noise as a result of traffic on Jamboree Road. Based on the
measurements obtained so far at Newport Dunes, there is insufficient data on which to
formulate a conclusion regarding the audibility within Sea Island of music at the
pavilions.
Recommendations
1. The sound level generated at a position 20' in front of a live entertainment act should
not exceed an average (Leq) of 95 dB(C) or a maximum of 102 dB(C). However, in
the event that more than one act is performing at a time, the sound level standard
should be reduced as follows for each act:
Number of Acts
Performing
Simultaneously
0
Average Noise Level
(Leq) Standard for
Each Act
. Maximum Noise Level
Standard for Each Act'
2. The Newport Dunes should rent or purchase a calibrated integrating sound level
meter capable of measuring, displaying and storing 1- minute L.eq's using the C-
weighting scale.
3. The Newport Dunes should assign one person to be responsible for calibrating and
operating the sound level meter, setting it up at the various venues, advising the act(s)
on measured levels, downloading the data at the end of the event, and providing the
Newport Dunes with a report summarizing the measured data.
4. During the sound check, the Newport Dunes' staff should be responsible for assisting
the performing artist or DJ in establishing amplifier and mixer board settings that will
achieve the sound level standards.
5. Sound checks should be closely monitored and kept to a minimum.
6. The Newport Dunes should book performers whom they feel are acoustically
appropriate for the facility and the community, based on their previous experience.
Guests should not be permitted to hire their own acts.
7. The Newport Dunes should attempt to employ the same acts throughout the season to
ensure consistency.
8. The live entertainment acts should be required to orient their speakers and amplifiers
towards Pacific Coast Highway and parallel to Jamboree Road.
1 Leq: Equivalent (or average) sound level.
NEWPORT DUNES
Project Fie 760-02
9. Portable barriers should be placed around the back and sides of the speakers and band
equipment as needed to control the direction of the sound away from residential
communities. These barriers may be constructed of 1/2" -thick plywood or Plexiglas,
or may be formed from acoustical blankets that provide a minimum sound
transmission class (STC) rating of 20.
10. Future contracts with performing artists or DJs should identify the Newport Dunes as
a noise - sensitive venue. All performers should be made aware of the unique
surroundings, the need to eliminate unnecessary sounds during sound checks, and the
need to control the volume during the performance.
11. The contracts should clearly identify the sound level standards identified in Item 1
above.
12. The contracts should clearly state that the Newport Dunes staff or agents reserve the
right to adjust the amplifier and mixer board settings during an event, or to stop the
event entirely, as needed to respond to community complaints or to an exceedance of
the sound level standards.
13. The Newport Dunes should designate a contact person with a portable phone who
will be responsible for responding to community complaints regarding noise impacts.
The contact person should be on site throughout each event.
V14. If a complaint is received during an event, the Newport Dunes' contact person should
take whatever reasonable steps are necessary to resolve the complaint. These steps
may include ordering that the mixer board and/or amplifier settings be lowered, or
stopping the event.
15. In the event noise complaints are received, a member of the Newport Dunes' staff
should travel to the complainant's location to understand the nature of the
disturbance.
(� 16. In general, the live entertainment should not be permitted to extend past 10:00 p.m.
• �--i However, on occasion it may be permitted to extend to 11:30 p.m. on Fridays,
(� Saturdays and holidays with the approval of the City's Planning Director on a case-
by-case basis.
rl
v�
r
35
NEWPORT DUNES
Project File 360 -02
We appreciate the opportunity to provide you with this report. If you have any questions,
please feel free to call us at 949/829 -6722.
Sincerely,
C,a d 7LW i e I 7an
Principal Consultant
U
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O
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c�3
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APPENDIXI
Noise Measurements
U
U
ct
U
O
ct
i
Table 1. Noise Survey
Project: Newport Dunes
Position: On vacant lot between 322 and 324
Mayflower
Date: April 4, 2002
Time: Noted
Noise Source: Traffic
Distance: 6' from 6' high block wall
SLM Height:
5'
LD 712 SIN:
0556
LD CAL 150
n*
Calibrator SIN:
2206
Operator:
Jonathan L. Higginson
O V.V
75.0
70.0
9 65.0
a 60.0
s
d 55.0
M
Z 50.0
45.0
40.0
Symbol: ♦ ■ A
i
0 20 40 60 80 100 ! Source:
Percent of Time Noise Level is Exceeded
' Leq is the average sound level during the measurement period.
Ln is the sound level exceeded n% of the time during the measurement period.
Lmax and Lmin are the maximum and minimum sound levels during the measurement period.
WIELAND ASSOCIATES, INC.
M00
Measurement Period
F TPM7:
PM
o
PM
to
n*
Ln
Ln
Ln
2
56.0
52.1
8
53.4
50.8
25
51.4
49.0
50
49.5
47.6
90
99
Leg
51.1
48.2
Lmax
68.8
59.5
Lmin
43.8
41.4
Symbol: ♦ ■ A
i
0 20 40 60 80 100 ! Source:
Percent of Time Noise Level is Exceeded
' Leq is the average sound level during the measurement period.
Ln is the sound level exceeded n% of the time during the measurement period.
Lmax and Lmin are the maximum and minimum sound levels during the measurement period.
WIELAND ASSOCIATES, INC.
M00
Table Z. Noise Survey
Project: Newport Dunes
Position: On Polaris sidewalk on opposite side
of street from Polaris Park
Date: April 4, 2002
Time: Noted
Noise Source: Traffic
n
Distance: Varies
SLM Height:
5'
LD 712 SIN:
0555
LD CAL150
n*
Calibrator SIN:
2206
Operator:
Roberta R. Wieland
b V.0
75.0
70.0
m
9 65.0 ------------------------ ` -----
i60.0 -----`-----`--- --
.�
y55.0 ----- ` ----- ` ----- - ----- ;- -----
�o �
z 50.0
------------------
45.0
40.0
0 20 40 60 80 100
Percent of Time Noise Level is Exceeded
Symbol:
Source:
* Leq is the average sound level during the measurement period.
Ln is the sound level exceeded n% of the time during the measurement period.
Lmax and Lmin are the maximum and minimum sound levels during the measurement period.
WIELAND ASSOCIATES, INC.
S9
Measurement Period
5:54 PM
to
8:25 PM
to
to
n*
Ln
Ln
Ln
2
49.2
8
47.6
25
46.1
50
44.3
90
99
Leq
45.0
Lmax
59.8
Lmin
38.0
Symbol:
Source:
* Leq is the average sound level during the measurement period.
Ln is the sound level exceeded n% of the time during the measurement period.
Lmax and Lmin are the maximum and minimum sound levels during the measurement period.
WIELAND ASSOCIATES, INC.
S9
Exhibit C
fr
I S ,
Terboorary
Eoc,losure
11 A.,
City Council
Attachment CC2
Newport Dunes Map
41
42
Back Bay
Science Center
Newport
Dunes
Future Restaurant
Site (Parcel B -2)
Boat
Storage
Back
Coney
Bay
Marina Clubhouse
I
island
Bistro
_. epTFRONT -
BoatLaunch 1
'PRINCETON
Pedestrian Bridge
FOGA— . e Parking
Boat
TnwN�1j Wy
Interim
Trailer
Parking
N — `
RTY_ — _, -.-
Dry Boat
Bayside -- _
Storage
Hyatt Regency
Village
--- MHP
Newport Beach
Family Inn
;ION OIR
Site
GE YyP�
(Parcel C)
Swimming
cf:�
( „✓ - �o
Lagoon
Parking Qo
Ape
y"„1. P
Off,
Z
�P
A7L
AR
RV Support Bayview Landing
- 9sr
Center Senior Apartments
RV Park
9
/I F
Back Bay 4 S
--
View Park or
0 925ft
MP,moratlC9Llm
"PEOM°ED ply AGFiVDA
7 1 1�., _ .
CITY OF NEWPORT BEACH
COMMUNITY DEVELOPMENT DEPARTMENT
3300 NEWPORT BOULEVARD, BLDG. C
NEWPORT BEACH, CA 92658 -8915
(949) 644 -3226
To: Honorable Mayor and Members of the City Council
From: Kimberly Brandt, AICP, Community Development Director
Date: July 10, 2012
Re: Agenda Item No. 15 - Second Amendment to the Amended Newport Dunes
Settlement Agreement
The proposed Second Amendment to the Amended Newport Dunes Settlement Agreement
(Attachment CC 1 of the staff report) refers to the prior agreements. Therefore, for purposes of
providing background information, copies of the 1988 "Amended Newport Dunes Settlement
Agreement' and the 1990 "First Amendment to Amended Newport Dunes Settlement Agreement'
are attached. Please note that the proposed Second Amendment amends and restates Sections
I -IV, and VI and modifies Section VII of the First Amendment, while Sections V and Sections VIII
through XI are unchanged.
Also, Section IV.B of the proposed Second Amendment contains references chapters of the prior
Zoning Code and needs to be corrected to reference chapters of the current Zoning Code:
B. Parking and Signage. Except as otherwise provided in this Agreement, parking for all
new development upon the Property and all signs and sign structures shall conform to
the requirements of Chapters 20.6040 and 20.0742, respectively, of the Newport
Beach Municipal Code, or any successor ordinances, as in effect at the time of such
new development or installation of such new signs and sign structures, as applicable.
Notwithstanding the foregoing, such compliance shall not be so required where the
development or the signs or sign structures otherwise complied with prior Newport
Beach Municipal Code provisions in effect at the time of the development or the signs
or sign structures being replaced or renovated, and compliance with such prior code
satisfies the non - conforming use provisions of the Newport Beach Municipal Code.
y
E
L
AMENDED NEWPORT MES SETTLEMENT AGREEMENT
THIS AGREEMENT, entered into this Z-�—"ciay 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 Subdivisiozz of the State of
California, hereinafter "County," and NEWPORT DUNES PARTNERSHIP, a
i
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:
1
(1)
acres, together
fast food stands
(2)
camping area, wi
electricity and
utilities;
A beach, consisting of approximately ten (lo)
with concessions to serve beachgoers, such as,
and businesses which rent beach equipment;
A recreational vehicle and travel trailer
th 64 spaces fully serviced by sewer, water and
80 spaces which are partially served by such
(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:
2
(1) 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 village1, 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.
iD. 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.
3
0
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:
1. 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;
9
® 0
(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 paragraph 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
WE
Ii
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
i
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);
R
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.
7
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.
mouth of the lagoon,
designated represents
and approved a water
the construction of
swimming lagoon;
No boat slips shall be constructed in the
or in the lagoon itself, until such time as
hives of the city and County have reviewed
quality study which considers the effects of
boat slips on the water quality in the
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
L
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;
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
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
0
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.
10
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
11
requirements upon payment of the sums specified in this section.
Amendments to the Traffic Phasing or Fair share Ordinance wY,ich
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
12
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;
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 Phased (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
13
U
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 $Soo.)
e) The sum of Fifty Thousand ;,;30,000)
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
i
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
14
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
j
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
is
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,
16
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
i
citizens of Newport Beach. such conditions may include, but are
not necessarily limited to, the following:
I. 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;
17
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
is
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
19
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 (lo) 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
20
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
21
duly authorized representative of the parties hereto.
Executed the day and year first above Written.
ATTEST:
Cjty Clerk
APP ED AS TO FORM:
ity Attorney
CITY
By:
✓ ���CY j �Q/�
Mayor
City of Newport Beach
22
1
e
r]
APPROVED AS To FORM:
County Counsel-_
!i- r i-/t v r
D
COUNTY OF ORANGE
By,✓
The Chairman of its Board of
Supervisors
SIGNED AND CERT01:0, THAT A COPY OF
THIS DOCUMENT HAS BEEN O= LIVEfiED TO
THE CHAIR -NIAN OF THE boARD.
L' QA D. ROOERTS DEC 13 1988
Clerk of the603rd.of Sueniisors
COMPANY County of Orange, Califsrnia
NEWPORT DUNES PARTNERSHIP
A California Partnership
By*.-
D i Thor h
23
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COC�Rr CF ORANGE COUNTY,
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EXHIL9 IT A
FEE. 7,1 °s8
EA, H, 1I D
NEWPORT DUNES LAND USE PLAN
I FAMILY INN
a) 275 rooms, 35 ft. height limit
b) 2 meeting rooms -100 person occupancy
II RECREATIONAL VEHICLE PARK
a) 444 existing spaces, upgraded to full hookups
b) 20 reserved for late arrivals
C) RV Support Center
1) grocery, propane, RV accessories, beach gear,
camping equipment
2) showers, laundry
3) swimming pool, children's pool
4) group picnic areas
III CAMPGROUND
a) day use
b) overnight
IV DA
a)
b)
c)
d)
e)
f)
USE
swimming beach
boat rentals
picnics, beach games
parking
snack bars
lifeguards
V HEADQUARTERS /OPE.RATIONS CENTER
a) 4,000 sq. ft. existing
b) 1,500 sq. £t. new (relocate San Diego computer facility)
c) operations, accounting, lifeguard headquarters,
equipment storage, first aid, security
VI MARINA
a) 100 slips additional
b) water quality study
c) pedestrian bridge on pilings
d) boat holding tank pump out station
e) dredging program
VII DRY BOAT STORAGE
a)
b)
C)
d)
f)
g)
h)
400 units
stacked, covered storage
24 hour security
launch ramp -six lanes
marine repair
holding tank pump out
gas dock
wash rack
EXHIBIT 2
VIII MARINA BUSINESS
a) 14,000 sq. ft. existing
b) 10,000 sq. ft. new
IX INTERPRETIVE CENTER
a) history and ecology
b) consistent with DFG program
c) human powered craft opportunities
d) coordinated with bicycle /hiking trails
X BIKE TRAIL
a) connecting Back Bay to Bayside
b) no charge for pass through
EVANS RESORTS
a) operated Newport Dunes for over ten years
b) local owner /operation of new facility, including Family Inn
c) Bahia Resort, Mission Bay, San Diego
d) Catamaran, Mission Bay, San Diego
3133fui J B
v
* 0
(Dace 3 of
V
Proposed Marine Business /Commercial Use
The Purpose of the Marine Business /Commercial use is
to provide facilities needed by the public as permitted
by the State Tidelands Grant and Lease Agreements with
the County of Orange. The Newport Dunes will maintain
and operate a retail shopping complex and adequately
provide the following services and facilities:
I. Ships Channelry and facilities for other
appropriate marine oriented merchandising
and services businesses such as equipment,
supplies and marine service station.
2. An enclosed building space for appropriate
general merchandising and services businesses
such as marine /recreation clothing, renting,
instruction and beach equipment.
The preceding list of potential uses is intended to
identify the types of marine - oriented services which
may occupy facilities at the Newport Dunes. The business
types are listed to identify typical uses and is not
meant to include all potential uses. The actual tenants
will be marine - oriented services which will serve both
Newport Dunes customers and boating enthusiasts.
ENAHIBIT PC
A �
County of Orange
ENVIRONMENTAL MANAGEMENT AGENCY
HARBORS, BEACHES AND PARKS
ERP4IE SCHNEIDER
DIRECTOR, EMA
ROBERT G. FISHER
DIRECTOR OF HARBORS, BEACHES 6 PARKS
LOCATION
'2 CIVIC -,ENTER PLAZA
SANTA ANA. CALIFORNIA
MAILING AOORESS'
P.O. BOX 4068
SANTA ANA, CA 92702 -4048
TELEPHONE:
(714) 8343262
JAN 7- 9 +389 FAx x: 835 7425
Mr. Robert H. Burnham FILE
City Attorney, Newport Beach
P.O. Box 1768 -
Newport Beach, CA 92658 -8915
Subject: Revised Se ement Agreement
Dear Mr. ,$u a .
i 1
On DecembeR 13, 1988 the Board of Supervisors approved an amended
Settlement Agreement which provides for redevelopment of the Newport
Dunes in accordance with the County /City approved site plan. A copy
of the final executed document, with original signatures, is enclosed
for your records.
I am pleased to transmit this document as one of the final elements which
will allow the redevelopment to go forward. Please contact Ken Scattergood
in HBP at 834-3034 should you need any additional information on this
item.
DR:sh(01- 74)9013
Enclosure
cc: Christie McDaniel
Very truly yours,
Robert G. Fisher,
Director, HBP
CIiY�ii@��D
JgN2 3 fV
1989
NpORT 6
�_ 'AuF �"
FIRST AMENDMENT TO AMENDED
NEWPORT DUNES SETTLEMENT AGREEMENT
This First Amendment to Amended Newport Dunes Settlement
Agreement ( "First Amendment ") is made as of December /g, 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 ").
s
(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 sameF 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
g paragraph H.8 of the Settlement Agreement.
0
I
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 MI
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_- Ci:ty,. 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-
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
mediterranea_n 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
iincluding
six passengers.
The marina club house shall include space €or 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_"
-3-
I
3. !:xcept as expressly amended or modified by the provisions
and conditions of this First Amendment, the Settle!nent Agreement
shall and oes remain in full force and effect.
CITY J
Mayor v
AamFSm- yvNPO6- ty of Newport Be:,ch
TO FORM:
APPRO >4 TO FORM:
County COL •.sel
N: \2 \2529 \33220 \: ;jTpr.
COUNTY QA ORANGE
PM
By.
The Chairman of it:: Board
of Supervisors
SIGP,,'.EDA' %VCEF.i777',-:4 TACOFYOF
TM DCA I :`EP i H = ".
: l,�tnc TO
L!YD:: i .:.
Clerk c�, the ftv-
V�Lff QI
: COMPANY
NEWPORT DUNES PARTNER;;, :p,
a Califis partner? .�
By: ✓ - G
Anne L. Evans
-ej_
.
BOARD OF SUPERVISORS
_ ORANGE COUNTY, CALIFORNIA
FIRST AMENDMENT TO AMENDED NEWPOF
NEWPORT DUNES PARTNERS FOR DEVELC
El
December 18, 1990
Envi
mental Management Agency requests approval of an amendment to an
agreement for development of a marina center.
MOTION: On motion by Supervisor Roth, seconded by Supervisor Vasquez,
the Board authorized execution of the First Amendment to the agreement
with Newport Dunes Partners. MOTION UNANIMOUSLY CARRIED.
�V�
Brown, Leilani
From: David Cane [dcane @linkline.com] "RECEIVED AFTER AGENDA
Sent: Monday, July 09, 2012 1:04 PM PUNTER` is
To: Dept - City Council; Brown, Leilani
Cc: sbaker @keystonepacific.com
Subject: Dover Shores Community Association; Request to postpone matter on July 10, 2012 Council
Agenda
Attachments: 7 -9 -12 Dover Shores LT Leilani Brown, City Clerk @ City of Newport Beach Re Second Amendment
to the Amended Newport Dunes Settlement Agreement.pdf
Dear Ms. Brown and Members of the City Council,
For the reasons explained in the attached letter, the Dover Shores Community Association respectfully requests that
discussion and decision on the proposed amendments to the Newport Dunes Settlement Agreement presently on the
Agenda for tomorrow's Council meeting be postponed to a future date.
Thank you
David E. Cane, Esq.
Cane, Walker & Harkins LLP
17821 E. 17th Street
Suite 140
Tustin, CA 92780
(714) 573 -8990
(714) 573 -8999 (Fax)
Email: dcaneCa?linkline.com
Confidentiality Note: This email message, and any documents accompanying it may contain information which is
confidential and /or legally privileged.
The information is intended only for the use of the individual or entity named on this email. If you are not the intended
recipient you are hereby notified that any disclosure, copying, distribution, or the taking of any action in reliance on the
contents of this email information is strictly prohibited and the documents should be returned to Cane, Walker & Harkins
immediately. In this regard, if you have received this email in error, please notify us by return email or by telephone
immediately, delete the email and all attachments and destroy all hard copies of same. Thank you for your cooperation.
i i a III oil
Bradley D. Walker 17821 East Seventeenth Street bwalker@linkline.com
David E. Cane Suite 140 deane@linkline.com
James C. Harkins, N Tustin, CA 92780 iharkins@iinkline.com
Telephone (714) 573 -5990
Facsimile (714) 573 -8999
July 9, 2012
File 30392 -001
Members of the Newport Beach City Council
c/o Leilani I. Brown, City Clerk
3300 Newport Boulevard
Newport Beach, CA 92663
Re: Dover Shores Community Association
Subject: SECOND AMENDMENT TO THE AMENDED NEWPORT DUNES
SETTLEMENT AGREEMENT AMONG THE CITE' OF NEWPORT
]BEACH, COUNT' OF ORANGE, WATERFRONT RESORT
PROPERTIES L.P., AND NEWPORT DUNES MARINA, LLC,
LOCATED AT 1131 BACK BAY (DRIVE (PA2012 -080)
Dear Members of the Newport Beach City Council:
Our office serves as legal counsel to the Dover Shores Community Association (the
"Association"), The above referenced matter is on the Council's Agenda for tomorrow, July 10,
2012. The matter is item number 15 under the heading "XVII. Current Business." I am writing on
the Association's behalf to request that discussion and decision on this matter be postponed to a
future date.
By letter received atthe Association's management company on July 3, 2012, the Association
was notified that the matter would be on tomorrow's Agenda. The letter was forwarded to the
Association's President by the Association's management company. The letter advises that any
questions and/or requests for information and documents should be directed to Mr. Patrick Alford.
Mr. Alford was not in the office this past Friday and the Association is advised that he will not be
returning until tomorrow.
Newport Dunes is located across the bay from Dover Shores, The amendments proposed to
the Settlement Agreement, particularly the amendment concerning the allowable location of charter
vessels, may significantly impact Association residents. Given that the letter advising that this
matter is on the Agenda for tomorrow was not received until the day before the Independence Day
holiday, and given Mr. Alford's absence, the Association is respectfully requesting that any Council
discussion and/or decision on this matter be postponed to a future Council meeting to afford the
Members of the Newport Beach City Council
July 9, 2012
Page 2
Association, the members of its elected Board of Directors, and its residents sufficient time within
which to have their questions answered and to evaluate the information and documentation received.
Very truly
�� . i „ems" , i �• � cif
cc: Board of Directors
Dover Shores Community
Members of the Newport Beach City Council (Via Email)
4 16- 1-10-12-
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City Council
July 10, 2012
Newport Dunes Settlement
Agreement
tTiFlr.TiiiT�► - • • iO 1'TM:
Establishes max. floor area limit (567,000 sf)
Allows transfer of restaurant floor area
Transfers 4,600 sf to Back Bay Bistro
Lifts restriction on location of charter boats
Allows 50 interim dry boat storage spaces
Reduces launch ramps from 7 t 6
Reduces boat trailers space from 185 t0120
Allows "ARVs" (cottages) in RV spaces
Newport Dunes
- - Parking
Baysde
Village
MHP
r
rr ^ "`
,ry
P
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Back Bay
Science Center
Future Restaurant Boat
Site (Parcel B-2)
Storage
Back
Coney E Bay
Marina Clubhouse island Bistro
Boat Launch
Pedeanlan Bridge
Boat
Trailer
Interim Parking
�— Dry Boat
Storage
Family Inn
Site
(Parcel C)
y
shy
RV Park
Hyatt Regency
Newport Beach
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2
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Center SenlorApartments
9
9�
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,a —�= �aW �rrices (949) 650-1181 P,1
RECEIVED
Law Offices of Robert C. Hawkins ZQCZ Jul- 10 PM 4. 24
110 Newport Center Drive, Suite 200
Newport Beach, California 92660 r P' F
(949) 650 -5550
Fax: (949) 650 -1181 Ci
FAX C4 %VEI2 SFIEET °`�'�" `4�°`D rlta
TRANSNIITTED TO:
Pr
NAME FAX NUMBER PHONE NUMBER 1
Leilani Brown, City Clerk (949) 644 -3039
From: Robert C. Hawkins
ClienUMatter: Firm
Date: July 10, 2012
Documents: Comments on Agenda Items Nos. 15 and 19
Pages: 4*
COMMENTS: Original will follow as indicated.
The information contained In this facsimile message is Information protected by attorney - client and/or the anorneyAvork
product privilege. It Is intended only for theme of the individual named above and the privileges are not waived by virtue of
this having been sent byfacsimile. If the person actually receiving this facsimile or any other reader ofthe facsimue is not the
named recipient or the employee or agent responsible to deliver it to the named recipient, any use, dissemination, distribution,
or copying of the communication is strictly prohibited. Ifyou have received this communication in error, please immediately
notes us by telephone and return the original message to us at the above address via U.S. Postal Service.
* NOT COUNTING COVER SHEET, IF YOU DO NOT RECEIVE ALL PAGES, PLEASE TELEPHONE US
IMMEDIATELY AT (949) 650 -5550.
It -'-2 o;l-
-- 11 "4WKics_Law uffices (949) 650 -1181 p,4
LAW OFFICES OF ROBERT C. HAWnNS
My 10, 2012
Via Facsimile .
Nancy Gardner, Mayor
Members of the City Council
City of Newport Beach
3300 Newport Blvd,
Newport Beach, California 92663
10
Dear Honorable Mayor and Members of the City Council:
Thank you for the opportunity to comment to comment on the captioned matter, This firm
represents Friends of Dolores and others in the City in connection with the captioned matter.
As you know, the Environmental Impact Report C'EIR ") for the captioned Newport Dunes Project
dates back to the early 1980s. The captioned Settlement Agreement which arose due to a challenge to the
EIR was entered into in 1983. The Settlement Agreement did not resolve the environmental issues relating
to the Project's EIR, Further, this analysis is dated and requires substantial environmental review and
analysis, The proposed Project is not exempt under the California Environmental Quality Act, Public
Resources Code sections 21000 et seq. for several reasons.
First, an EIR constitutes the heart of CEQA: An EIR is the primary environmental document which:
". , serves as a public disclosure document explaining the effects of the proposed project on
the environment, alternatives to the project, and ways to minimize adverse effects and to
increase beneficial effects."
CEQA Guidelines section 15149(b). See California Public Resources Code section 21003(b) (requiring that
the document must disclose impacts and mitigation so that the document will be meaningful and useful to
the public and decisionmakers.)
Further, CEQA Guidelines section 15151 sets forth the adequacy standards for an EIR:
"An EIR should be prepared with a sufficient degree of analysis to provide decision - makers
with information which enables them to make a decision which takes account of the
environmental consequences. An evaluation of the environmental effects of a proposed
project need not be exhaustive, but sufficiency of an EIR is to be reviewed in the light of
what is reasonably feasible. Disagreement among experts does not make an EIRinadequate,
110 Newport Center Drive, Suite 200
Newport Beach, California 92660
(949) 650.5550
Fax: (949) 650.1181
The Hon: Mayor Oardner
Members of the City Council
- --min5 Law Utfices
-2�
(9491 650 -1181 p.5
July 10, 2012
but the EIR should summarize the main points of disagreement among the experts. The
courts have looked not for perfection but for adequacy, completeness, and a good faith
attempt at full disclosure."
Further, "the EIR must contain facts and analysis, not just the agency's bare conclusions or opinions."
Concerned Citizens of Costa Mesa. Inc. v. 32nd District AprigiAtural Association (1986) 42 Cal. 3d 929.
Here, neither of the EIRs relied on by the City provide any useful information: they are both old.
The 1980 EIR for the Project is woefully dated and admittedly deficient as indicated by the CEQA
challenge and resulting Settlement Agreement. Also, the City's General Plan EIR is also dated: it is over
six years old. The traffic analysis dates back to 2002. She Banning Ranch Final EIR, page 3 -985. That
analysis is over ten years old.
In addition, CEQA requires new environmental analysis for the impacts of the Project on global
warming and green house gases. See. e.g. Public Resources Code section 21159.28. Although the General
Plan EIR contained a truncated analysis of global warming for the entire General Plan Project, it had no
specifics for the captioned Project. Further, water quality regulations have tightened since the approve of
the 1980 EIR for the Project.
Second, the Project has changed. The Settlement Agreement authorized specific uses and allocated
square footage for those uses. The captioned Project aggregates such square footage with no use limitations.
Further, the proposed Project lifts arestriction for restaurant uses at specific locations and allows restaurant
uses on the entire site. In addition, the proposed Project seeks to reduce dry boat storage, boat trailer
parking, and boat launching without any analysis of how this will impact recreation or Coastal access.
Further, the proposed Project seeks to introduce a problematic issue that we already have in the harbor:
More charter boats. All of this will have impacts on the community which must be analyzed and mitigates.
Further, the Project will also affect and conflict with residential uses in the vicinity.
The Project is not exempt; it requires a fresh EIR with a full Proj cot description to support any such
euvironmental analysis,
Thank you for the opportunity to comment on the captioned matter. Please provide me with notices
regarding the captioned Project. We will provide further and additional comments on the captioned matter
in a timely manner.
ECM Walker & Harkins LLP
Bradley D. Walker 7821 East Seventeenth Street bwalker@linkline.com
David E. Cane Suite 140 deane(olinkline.com
James C. Harkins, 19912 JUL 10 A4 9- L12 Tustin, CA 92780 ibarkins @linkline.com
Telephone (714) 573.8990
Facsimile (714) 573 -8999
C INTED!'
July 9, 2012
File 30392 -001
Members of the Newport Beach City Council
c/o Leilani I. Brown, City Clerk
3300 Newport Boulevard.
Newport Beach, CA 92663
Re: Dover Shores Community Association
Subject: SECOND AMENDMENT TO THE AMENDED NEWPORT DUNES
SETTLEMENT AGREEMENT AMONG THE CITY OF NEWPORT
BEACH, COUNTY OF ORANGE, WATERFRONT RESORT
PROPERTIES L.P., AND NEWPORT DUNES MARINA, LLC,
LOCATED AT 1131 BACK BAY DRIVE (PA2012 -080)
Dear Members of the Newport Beach City Council:
Our office serves as legal counsel to the Dover Shores Community Association (the
"Association "). The above referenced matter is on the Council's Agenda for tomorrow, July 10,
2012. The matter is item number 15 under the heading "XVIJ. Current Business." I am writing on
the Association's behalf to request that discussion and decision on this matter be postponed to a
future date.
By letter received at the Association's management company on July3, 2012, the Association
was notified that the matter would be on tomorrow's Agenda. The letter was forwarded to the
Association's President by the Association's management company. The letter advises that any
questions and /or requests for information and documents should be directed to Mr. Patrick Alford.
Mr. Alford was not in the office this past Friday and the Association is advised that he will not be
returning until tomorrow.
Newport Dunes is located across the bay from Dover Shores. The amendments proposed to
the Settlement Agreement, particularly the amendment concerning the allowable location of charter
vessels, may` significantly impact Association residents. Given that the letter advising that this
matter is on the Agenda for tomorrow was not received until the day before the Independence Day
holiday, and given Mr. Alford's absence, the Association is respectfully requesting that any Council
discussion and/or decision on this matter be postponed to a future Council meeting to afford the
Members of the Newport Beach City Council
July 9, 2412
Pace 2
Association, the members of its elected Board of Directors, and its residents sufficient time within
which to have their questions answered and to evaluate the information and documentation received.
Very truly
CANE, ,/'/ALIT R & HARKINS LLP
cc: Board of Directors
Dover Shores Community
Members of the Newport Beach City Council (Via Email)