HomeMy WebLinkAbout06 - Newport Beach Country Club Inc - PA2008-152CITY OF
�gW PO_ RT
NEWPORT BEACH
City Council Staff Report
Agenda Item No. 6
February 14, 2012
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Community Development Department
Kimberly Brandt, Director
949 - 644 -3226, kbrandt @newportbeachca.gov
PREPARED BY: Rosalinh Ung, Associate Planner
APPROVED: C
TITLE: NEWPORT BEACH COUNTRY CLUB (PA2008 -152)
Newport Beach Country Club, Inc.
1600 East Coast Highway
ABSTRACT:
Adoption of ordinances related to the Newport Beach Country Club Planned
Community. The City Council introduced the attached ordinances on January 24, 2012.
RECOMMENDATION:
1) Conduct a second reading and adopt Ordinance No. 2012 -4 (Attachment
No. CC1) approving Planned Community Development Plan Amendment
No. PC2008 -001 to increase the size of the golf clubhouse from 35,000 to
56,000 gross square feet; and
2) Conduct a second reading and adopt Ordinance No. 2012 -5 (Attachment
No. CC2) approving Development Agreement No. DA2010 -005.
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers the item).
Submitted by:
r
Kimberly Brandt, MP
Community Development Director
Attachments: CC1 Ordinance No. 2012 -4 with attached Exhibit "A"
CC2 Ordinance No. 2012 -5 with attached Exhibit "A"
2
I iy C�;�.��arIcil
�tfacf��7�ci7t
Ordinance 2012 -4 (PCDP Amendment)
with Attached Exhibit "A"
3
11
ORDINANCE NO. 2012 -4
AN ORDINANCE OF THE CITY OF NEWPORT BEACH
APPROVING PLANNED COMMUNITY DEVELOPMENT PLAN
AMENDMENT NO. PC2008.001 FOR PROPERTY LOCATED AT
1600 EAST COAST HIGHWAY (PA2008 -152)
THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS:
SECTION 1. STATEMENT OF FACTS.
1. An application was filed by The Newport Beach Country Club, Inc., with respect to
property located at 1600 East Coast Highway, and legally described as Parcels 1 and 3
of Parcel Map No. 79 -704 and a Portion of Back Bay Drive as Shown on Parcel Map No.
79 -704, requesting an approval to redevelop the existing golf clubhouse of the Newport
Beach Country Club. The following approvals are requested or required in order to
implement the project as proposed:
a. A General Plan Amendment to increase the allowable development limit in
Anomaly No. 74 in Statistical Area L1 (Newport Center /Fashion Island) of the
General Plan Land Use Element by 21,000 gross square feet, from 35,000 to
56,000 gross square feet.
b. A Planned Community Development Plan adoption to provide development
standards and design guidelines for the golf course and its ancillary uses,
pursuant to Chapter 20.35 of the Municipal Code.
C. A Site Development Review to allow the construction of 54,819 square -foot golf
clubhouse with the associate parking lot and maintenance facility, pursuant to
the Section 4.3 of the Newport Beach Country Planned Community
Development Plan.
d. A Limited Term Permit (Temporary
use /structure during the clubhouse
20.60.015 of the Municipal Code.
Structure and Uses) for the temporary
reconstruction, pursuant to Section
e. A Development Agreement pursuant to Section 15.45.020.A.2.c of the
Municipal Code which requires a development agreement as the project
includes amendments to the General Plan and Zoning Code and construction of
new non - residential development in Statistical Area L1 (Newport
Center /Fashion Island).
2. The application was deemed complete on October 23, 2008; and pursuant to Ordinance
No. 2010 -21, the application is being considered and evaluated pursuant to the Zoning
Code in effect prior to November 25, 2010.
0
3. The Planning Commission held public hearings on August 4, 2011 and October 20,
2011, and November 17, 2019. At the November 17th hearing with a vote of 3 -2, the
Planning Commission adopted Resolution No. 1862, recommending the City Council to:
a. Adopt Mitigated Negative Declaration No. ND2010 -010 and the Mitigation
Monitoring and Reporting Program;
b. Approve General Plan Amendment No. GP2008 -005, Development Agreement
No. DA2010 -005, Limited Term Permit No. XP2011 -005 as proposed by the
applicant;
C. Adopt an amendment to Planned Community Development Plan No. PC2005 -002
(staffs alternative Planned Community Development Plan) reflecting the increase
in intensity for the larger golf clubhouse of 56,000 gross square feet; and
d. Approve Site Development Review No. SD2011 -003 as proposed by the
applicant.
4. The City Council public hearing was held on January 24, 2012, in the City Hall Council
Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time, place
and purpose of the meeting was given in accordance with the Newport Beach
Municipal Code. Evidence, both written and oral, was presented to, and considered by,
the City Council at this meeting.
SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION.
1. An Initial Study and Mitigated Negative Declaration have been prepared in compliance
with the California Environmental Quality Act (CEQA), the State CEQA Guidelines,
and City Council Policy K -3.
2. The Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program
were adopted by City Council on January 24, 2012, by adopting certain CEQA
determinations containing within Resolution No. 2012 -11, which are hereby
incorporated by reference.
3. The City Council finds that judicial challenges to the City's CEQA determinations and
approvals of land use projects are costly and time consuming. In addition, project
opponents often seek an award of attorneys' fees in such challenges. As project
applicants are the primary beneficiaries of such approvals, it is appropriate that such
applicants should bear the expense of defending against any such judicial challenge,
and bear the responsibility for any costs, attorneys' fees, and damages which may be
awarded to a successful challenger.
SECTION 3. FINDINGS
1. The project site is located within the Statistical Area L1 of the General Plan Land Use
Element. The Land Use Element designates the subject property Parks and Recreation
(PR), which is intended for active public or private recreational use. Permitted uses
Tmplt: 11123/09
NO
include parks (both active and passive), golf courses, marina support facilities, aquatic
facilities, tennis clubs and courts, private recreation, and similar facilities. The
proposed redevelopment of the golf clubhouse consistent with the proposed
alternative planned community development plan thereby would be consistent with this
designation.
2. The Coastal Land Use Plan designates the subject site as Parks and Recreation (PR)
and is consistent with the General Plan Land Use designation. The adoption of the
amendment to the planned community development plan will ensure building design
and siting regulations will protect coastal resources, including protection of views, and
public access through height, setback, floor area, lot coverage, building bulk, and
improved pedestrian access in accordance with Policy 2.2.2 -4. The proposed golf
clubhouse of the Newport Beach Country Club will continue to provide visitor- serving
and recreational facilities as required by Policy 2.3.2 -2. The proposed redevelopment
of the project site is therefore consistent with the Coastal Land Use designation.
3. The subject property has a zoning designation of Planned Community (PC -47). This
PC zoning designation was adopted in 1997 by Ordinance 97 -10, as a part of the City-
wide amendment to the districting maps, in order to be consistent with the 1988
General Plan Land Use Element and Zoning Code. The City later assigned the PC
with a number of 47 for tracking purposes. A Planned Community Development Plan
(development regulations), was not adopted when the PC District zoning designation
was assigned to the subject property.
4. A planned community development plan (PCDP) is proposed for the Golf Club site and
not to include the entire area within the area designated of PC 47. The PCDP contains
necessary development regulations to accommodate the applicant's project.
SECTION 4. DECISION.
THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH DOES HEREBY ORDAIN AS
FOLLOWS:
1. The Newport Country Club Planned Community Development Plan (PC -47) shall be
amended to increase the size of the golf clubhouse from 35,000 to 56,000 square feet as
depicted in Exhibit "A" attached hereto and incorporated by reference, with all other
provisions of the adopted Planned Community Development Plan remaining
unchanged and in full force and effect.
2. If any section, subsection, sentence, clause or phrase of this ordinance is, for any
reason, held to be invalid or unconstitutional, such decision shall not affect the validity
or constitutionality of the remaining portions of this ordinance. The City Council hereby
declares that it would have passed this ordinance, and each section, subsection,
clause or phrase hereof, irrespective of the fact that anyone or more sections,
subsections, sentences, clauses and phrases be declared unconstitutional.
3. This action shall become final and effective thirty days after the adoption of this
Ordinance.
Tmplt: 11/23/09
4. The Mayor shall sign and the City Clerk shall attest to the passage of this Ordinance.
This Ordinance shall be published once in the official newspaper of the City, and the
same shall become effective thirty (30) days after the date of its adoption.
This Ordinance was introduced at a regular meeting of the City Council of the City of Newport
Beach held on the 24th of January, 2012, and adopted on the 14th day of February, 2012, by
the following vote, to wit:
AYES, COUNCIL MEMB
NOES, COUNCIL MEMBERS
ABSENT, COUNCIL MEMBERS
u_ S:
ATTEST:
Leilani Brown, City Clerk
APPROVED AS TO FORM,
E OF CITY ATTORNEY:
n Har , City Attorney
for the City of Newport Beach
Tmpll: 11/23/09
g
EXHIBIT "A"
NEWPORT BEACH COUNTRY CLUB
PLANNED COMMUNITY DEVELOPMENT PLAN AMENDMENT
TmpIC 11/23/09
9
Date: January 24, 2012
Ordinance No.
Adopted
10
TABLE OF CONTENTS
1.0 Introduction and Purpose ................................................. ............................... 4
2.0 General Conditions and Regulations ................................ ...............................
5
3.0 Land
Use and Development Regulations ......................... ...............................
10
3.1
Golf Club ............................................................... ...............................
10
A. Golf Course ...................................................... ...............................
10
B. Golf Clubhouse and Ancillary Uses .................. ...............................
10
1. Building Area .............................................. ...............................
10
2. Building Height ........................................... ...............................
10
3. Permitted Ancillary Uses ............................. ...............................
10
4. Parking ....................................................... ...............................
11
5. Fencing ....................................................... ...............................
11
3.2
Tennis Club ........................................................... ...............................
11
A. Tennis Courts ................................................... ...............................
11
1. Number of Courts ....................................... ...............................
11
B. Tennis Clubhouse and Ancillary Uses .............. ...............................
12
1. Building Area .............................................. ...............................
12
2. Building Height ........................................... ...............................
12
3. Permitted Ancillary Uses ............................................................
12
4. Parking ....................................................... ...............................
12
3.3
The Villas ............................................................... ...............................
12
1. Number of Units .......................................... ...............................
12
2. Development Standards ............................. ...............................
12
3.4
The Bungalows ...................................................... ...............................
13
1. Number of Units .......................................... ...............................
13
2. Permitted Ancillary Uses ............................. ...............................
13
3. Building Area .............................................. ...............................
14
4. Building Height ........................................... ...............................
14
5. Building Setbacks ....................................... ...............................
14
6. Parking ....................................................... ...............................
14
3.5
Signs ..................................................................... ...............................
14
A. Sign Allowance ................................................ ...............................
14
B. Sign Standards ................................................ ...............................
15
4.0 Site
Development Review ................................................ ...............................
16
4.1
Purpose ................................................................. ...............................
16
4.2
Application ............................................................. ...............................
16
4.3
Findings ................................................................. ...............................
16
4.4
Contents ................................................................ ...............................
17
4.5
Public Hearing - Required Notice ......................... ...............................
17
4.6
Expiration and Revocation Site Plan Review Approvals .......................
18
4.7
Fees ...................................................................... ...............................
18
4.8
Minor Changes by the Community Development Director ....................
18
2
i1
LIST OF EXHIBITS
Exhibit Name Exhibit Number
VicinityAerial Map ................................................................. ............................... A
Conceptual Master Site Plan ................................................. ............................... B
LIST OF TABLES
Table Name
Page
The Villas Development Standards ....................................... ............................... 13
3
12
1.0 INTRODUCTION AND PURPOSE
The Newport Beach Country Club Planned Community District (the PCD) is composed
of the Golf Club, Tennis Club, Bungalows and Villas facilities, totaling approximately 140
acres. The PCD has been developed in accordance with the Newport Beach General
Plan and is consistent with the Local Coastal Land Use Plan.
The purpose of this PCD is to provide for the classification and development of
coordinated, cohesive, comprehensive planning project with limited mixed uses,
including the private Golf Club, Tennis Club, 27 short -term rental units called the
Bungalows with a spa /fitness area, and 5 semi - custom single -unit residential dwellings
called the Villas.
Whenever the regulations contained in the PCD Regulations conflict with the regulations
of the Newport Beach Municipal Code, the regulations contained in the PCD
Regulations shall take precedence. The Newport Beach Municipal Code shall regulate
all development within the PCD when such regulations are not provided within the PCD
Regulations.
0
13
2.0 GENERAL CONDITIONS AND REGULATIONS
1. Alcoholic Beverage Consumption
The consumption of alcoholic beverages within the PCD shall be in compliance with the
State of California Department of Alcoholic Beverage Control and the Newport Beach
Municipal Code. A use permit shall be required if the establishment operates past 11:00
p.m. any day of the week and a minor use permit shall be required if the establishment
operates until 11:00 p.m. any day of the week.
2. Amplified Music
All amplified music played after 10:00 p.m. within the PCD shall be confined within the
interior of a building unless a Special Events Permit is obtained.
3. Archaeological /Paleontological Resources
Development of the site is subject to the provisions of City Council Policies K -5 and K -6
regarding archaeological and paleontological resources.
4. Architectural Design
All development shall be designed with high quality architectural standards and shall be
compatible with the surrounding uses. The development should be well- designed with
coordinated, cohesive architecture and exhibiting the highest level of architectural and
landscape quality in keeping with the PCD's prominent location in the Newport Center
Planning Area. Massing offsets, variation of roof lines, varied textures, openings,
recesses, and design accents on all building elevations shall be provided to enhance
the architectural style. Architectural treatments for all ancillary facilities (i.e. storage,
truck loading and unloading, and trash enclosures) shall be provided.
5. Building Codes
Construction shall comply with applicable provisions of the California Building Code and
the various other mechanical, electrical and plumbing codes related thereto as adopted
by the Newport Beach Municipal Code.
6. Exterior Storage Areas
There shall be no exterior storage areas permitted with the exception of the
greenskeeper /maintenance area which shall be enclosed by a minimum six foot
plastered block wall.
'61
14
7. Flood Protection
Development of the subject property will be undertaken in accordance with the flood
protection policies of the City.
8. Grading and Erosion Control
Grading and erosion control measures shall be carried out in accordance with the
provisions of the Newport Beach Excavation and Grading Code and shall be subject to
permits issued by the Community Development Department.
9. Gross Floor Area
Gross floor area shall be defined as the total area of a building including the
surrounding exterior walls.
10. Height and Grade
The height of any structure within the PCD shall not exceed fifty (50) feet, unless
otherwise specified. The height of a structure shall be the vertical distance between the
highest point of the structure and the grade directly below. In determining the height of a
sloped roof, the measurement shall be the vertical distance between the grade and the
midpoint of the roof plane, provided that no part of the roof shall be extend more than
five (5) feet above the permitted height in the height limitation zone, and any
amendments shall be subject to the review and approval of the Community
Development Director
11. Landscaping /irrigation
Landscaping and irrigation shall be provided in all areas not devoted to structures,
parking lots, driveways, walkways, and tennis courts to enhance the appearance of the
development, reduce heat and glare, control soil erosion, conserve water, screen
adjacent land uses, and preserve the integrity of PCD. Landscaping and irrigation shall
consist of a combination of trees, shrubs, groundcover and hardscape improvements.
Landscaping shall be prepared in accordance with the Landscaping Standards and
Water- Efficient Landscaping Sections of the Newport Beach Municipal Code and
installed in accordance with the approved landscape plans prepared by a licensed
landscape architect.
12. Lighting — Outdoor
All new outdoor lighting shall be designed, shielded, aimed, located and maintained to
shield adjacent uses /properties and to not produce glare onto adjacent uses /properties.
Lighting plans shall be prepared in compliance with the Outdoor Lighting Section of the
Newport Beach Municipal Code and shall be prepared by a licensed electrical
0
15
engineer. All lighting and lighting fixtures that are provided shall be maintained in
accordance with the approved lighting plans.
13. Lighting — Parking & Walkways
All lighting and lighting fixtures that are provided shall be maintained in accordance with
the approved lighting plans. Light standards within parking lots shall be the minimum
height required to effectively illuminate the parking area and eliminate spillover .of light
and glare onto adjoining uses /properties and roadways.
Parking lots and walkways accessing buildings shall be illuminated with a minimum of
0.5 foot - candle average on the driving or walking surface during the hours of operation
and one hour thereafter. Lighting plans shall be prepared in compliance with the
Outdoor Lighting Section of the Newport Beach Municipal Code and shall be prepared
by a licensed electrical engineer.
If the applicant wishes to deviate from this lighting standard, a lighting plan may be
prepared by the applicant and submitted to the Community Development Director for
review and approval.
14. Loading Areas for Non- Residential Uses
All loading and unloading of goods delivery shall be performed onsite. Loading
platforms and areas shall be screened from public view.
15. Parking Areas
Parking spaces, driveways, maneuvering aisles, turnaround areas, and landscaping
areas of the parking lots shall be kept free of dust, graffiti, and litter. All components of
the parking areas including striping, paving, wheel stops, walls, and light standards of
the parking lots shall be permanently maintained in good working condition. Access,
location, parking space and lot dimensions, and parking lot improvements shall be in
compliance with the Development Standards for Parking Areas Section of the Newport
Beach Municipal Code.
16. Property Owner Approval
Written property owner approval shall be required for the submittal of any site
development review application and /or prior to grading and /or building permit issuance.
17. Outdoor Paging
Outdoor paging shall be permitted at the Golf Club to call individuals to the tees and at
the Tennis Club to call points during tennis tournaments.
7
10
18. Sewage Disposal
Sewage disposal service facilities for the PCD will be provided by Orange County
Sanitation District No. 5 and shall be subject to applicable regulations, permits and fees
as prescribed by the Sanitation District.
19. Screening of Mechanical Equipments
All new mechanical appurtenances (e.g., air conditioning, heating, ventilation ducts and
exhaust vents, swimming pool and spa pumps and filters, transformers, utility vaults and
emergency power generators) shall be screened from public view and adjacent land
uses. The enclosure design shall be approved by the Community Development
Department. All rooftop equipment (other than vents, wind turbines, etc.) shall be
architecturally treated or screened from off -site views in a manner compatible with the
building materials prior to final building permit clearance for each new or remodeled
building. The mechanical appurtenances shall be subject to sound rating in accordance
with the Exterior Noise Standards Section of the Newport Beach Municipal Code.
Rooftop screening and enclosures shall be subject to the applicable height limit.
20. Screening of the Villas from Tennis Courts
Adequate buffering between the Villas and tennis courts shall be provided and subject
to the Site Development Review process. The exterior perimeter of the tennis courts
facing Granville Condominiums, Granville Drive, and the Tennis Clubhouse parking lot
shall be screened by a minimum ten -foot high chain link fence covered by a wind
screen. Wind screen shall be maintained in good condition at all time.
21. Screening of the Villas' Pool /Spa Equipment
All pool and /or spa equipment shall be enclosed by a minimum five -foot high block wall
plastered or otherwise textured to match the building.
22. Special Events
Temporary special community events, such as such as PGA Senior Classic golf
tournaments, Team Tennis, Davis Cup Matches, and other similar events, are permitted
in the PCD, and are subject to the Special Events Chapter of the Newport Beach
Municipal Code. Temporary exterior storage associated with approved special events
may be permitted provided it is appropriately screened and regulated with an approved
Special Event Permit.
L
17
23. Temporary Structures and Uses
Temporary structures and uses, including modular buildings for construction - related
activities are permitted.
24. Trash Container Storage for Residential Dwellings
Trash container storage shall be out of view from public places, and may not be located
in the required parking areas. If trash container storage areas cannot be located out of
public view, they shall be screened from public view. Screening shall consist of fences,
walls, and landscaping to a height at least 6 inches above the tops of the containers.
25. Trash Enclosures for Non- Residential Uses
All trash enclosures for non - residential uses shall be provided and in accordance with
the Solid Waste and Recyclable Materials Storage of the Newport Beach Municipal
Code.
26. Tennis Club Site Phasing Plan-
The phasing plan for the tennis club site which consists of the tennis club, villas and
bungalows shall be subject to a site development review process.
27. Water Service
Water service to the PCD will be provided by the City of Newport Beach and will be
subject to applicable regulations, permits and fees as prescribed by the City.
(J
1-g
3.0 LAND USE AND DEVELOPMENT REGULATIONS
3.1 Golf Club
Refer to Exhibit B - Conceptual Master Site Plan for the general location and
placement of the golf course and clubhouse.
A. Golf Course
An 18 -hole championship golf course and related facilities (i.e. putting green,
driving range, snack bar, starter shack, restroom facilities, etc.).
B. Golf Clubhouse and Ancillary Uses
1. Building Area
The maximum allowable gross floor area for a golf clubhouse building
shall be 56,000 square feet, exclusive of any enclosed golf cart storage
areas ramp and washing area. The greens keeper /maintenance buildings,
snack bar, separate golf course restroom facilities, starter shack, and
similar ancillary buildings are exempt from this development limit.
2. Building Height
The maximum allowable building height for the Golf Clubhouse shall be 50
feet and shall be measured in accordance with the Height and Grade
definition of Section 2.0 General Conditions and Regulation of the PCD.
3. Permitted Ancillary Use
The following ancillary uses are allowed:
• Golf shop
• Administrative Offices
• Dining, and event areas
• Kitchen & Bar areas
• Banquet Rooms
• Men and Women's Card Rooms
• Health and fitness facility
• Restroom and Locker facilities
• Golf Club storage areas
• Employee lounge /lunch areas
• Meeting rooms
• Golf Cart Parking Storage and Washing Area
10
19
• Separate Snack Bar
• Separate Starter Shack
• Separate Golf Course Restrooms
• Hand Carwash Area
• Greenskeeper Maintenance Facility
• Temporary Construction Facilities
• Guard House
• Others (subject to an approval
Director)
4. Parking
of the Community Development
Parking for the Golf Course and Golf Clubhouse shall be in accordance
with following parking ratios (source: from Table 2 of the Circulation and
Parking Evaluation by Kimley -Horn and Associates, Inc., September 2009
for Newport Beach Country Club — Clubhouse Improvement Project):
Golf Course: 8 spaces per hole
Golf Clubhouse:
Dining, assembly & meeting rooms: 1 per 3 seats or 1 per 35
square feet
Administrative Office: 4 per 1,000 square feet
Pro Shop: 4 per 1,000 square feet
Maintenance Facility: 2 per 1,000 square feet
Health and Fitness Facility: 4 per 1,000 square feet
The design of the parking lot and orientation of vehicular aisles and
parking spaces shall be subject to the review and approval of the City
Traffic Engineer and Community Development Director.
5. Fencing
Golf Course perimeter fencing shall be wrought -iron with a maximum
permitted height of six (6) feet.
3.2 Tennis Club
Refer to Exhibit B - Conceptual Master Site Plan for the general location and
placement of the tennis courts and clubhouse.
A. The Tennis Courts
1. Number of courts
The maximum allowable tennis courts shall be seven lighted tennis courts
(six lighted championship courts and one lighted stadium - center court).
11
20
B. Tennis Clubhouse and Ancillary Uses
1. Building Area
The maximum allowable gross floor area for the Tennis Clubhouse shall
be 3,725 square feet.
2. Building Height
The maximum allowable building height for the Tennis Clubhouse shall be
30 feet, and shall be measured in accordance with the Height and Grade
definition of Section 2.0 General Conditions and Regulations of the PCD.
3. Permitted Ancillary Uses
The following ancillary uses are allowed:
• Tennis Shop
• Administrative Offices
• Concessions
• Restroom and Locker facilities
• Storage areas
• Spectator seating
• Others (subject to an approval of the Community Development
Director)
4. Parking
Parking for the Tennis Clubhouse and Courts shall be a minimum of 28
parking spaces.
3.3. The Villas
Refer to Exhibit B - Conceptual Master Site Plan for the general location and
placement of the villas.
1. Number of Units
The maximum allowable number of single - family residential units shall be five (5).
2. Development Standards
The following development standards shall apply to the Villas:
12
21
The Villas Development Standards Table
Villa
Villa A
Villa B
Villa C
Villa D
Villa E
Designation
TTM Lot #1
TTM Lot #2
TTM Lot #3
TTM Lot #4
#TTM Lot
Lot Size
5,000 square feet minimum
Lot Coverage
65%
55%
40%
55%
(Maximum)
70%
Building Height
39 feet, measured in accordance with the Height and Grade
definition'of Section 2.0 General Conditions and Regulations
Building Side Yard
3 feet minimum
Setbacks
Building Front and
Rear Yard
5 feet minimum
Setbacks
Enclosed Parking
Space for Each
2
2
3
3
2
Unit
Open Guest
One space - could be located on the private driveway — No
Parking Space for
overhang to the private street /cul -de -sac is allowed
Each Unit
3.4. The Bungalows
Refer to Exhibit B - Conceptual Master Site Plan for the general location and
placement of the bungalows, concierge and guest center, and spa facility.
1. Number of Units
The maximum allowable number of the Bungalows shall be 27 short -term guest
rental units to be built in a clustered setting of single and two -story buildings.
2. Permitted Ancillary Uses
The following ancillary uses are allowed
o Concierge office and guest meeting facility
Swimming pool and Jacuzzi
U Spa facility that includes treatment rooms, fitness areas, and snack bar
serving drinks, snacks and light breakfast and lunch items
13
22
3. Building Area
The maximum allowable gross floor area for the bungalows shall be 28,300
square feet with a 2,200 square foot concierge & guest center and a 7,500
square -foot spa facility.
4. Building Height
The maximum allowable building height for the bungalows shall be 31 feet,
measured in accordance with the Height and Grade definition of Section 2.0
General Conditions and Regulations of the PCD.
5. Building Setbacks
The setback requirement shall be a minimum of 5 feet from any property line.
6. Parking
Parking for the bungalows shall be a minimum of 34 parking spaces located in
proximity to the use.
3.5 Si ns
A. Sign Allowance
1. One (1) single or double- faced, ground- mounted entrance
identification sign shall be allowed at Newport Beach Tennis Club's
main entrance (Country Club Drive and Irvine Terrace). Total
maximum signage area shall not exceed seventy -five (75) square
feet and shall not exceed five (5) feet in height.
2. One (1) single or double- faced, ground- mounted entrance
identification sign shall be allowed at or near the vicinity of the
Newport Beach Country Club's secondary entrance (Granville).
Total maximum signage area shall not exceed seventy -five (75)
square feet and shall not exceed five (5) feet in height.
3. Building identification signs shall be allowed; one for each street
frontage. If freestanding, this sign type shall not exceed a maximum
height of five (5) feet in height. The maximum signage area shall
not exceed seventy (70) square feet.
4. Vehicular and pedestrian directional signs shall be allowed. This
sign type may occur as a single -faced or double -faced sign. The
sign shall be sized to allow for proper readability given the number
of lines of copy, speed of traffic, setback off the road and viewing
14
23
distance. This sign type shall not exceed a maximum of six (6) feet
in height.
5. One (1) single or double faced, ground- mounted identification sign
shall be allowed at the entrance road to the Bungalows. Total
maximum signage area shall not exceed seventy -five (75) square
feet and shall not exceed five (5) feet in height and fifteen (15) feet
in length.
B. Sign Standards
1. The design and materials of all permanent signs in the Newport
Beach Country Club Planned Community District shall be in
accordance with Sign Section 3.5, unless otherwise approved by
the Community Development Director.
2. All permanent signs shall be subject to a sign permit issued by the
Community Development Department.
3. All signs shall be subject to the review of the City Traffic Engineer
to ensure adequate sight distance in accordance with the
provisions of the Newport Beach Municipal Code.
4. Sign illumination is permitted for all sign types. No sign shall be
constructed or installed to rotate, gyrate, blink or move, or create
the illusion of motion, in any fashion.
5. All permanent signs together with the entirety of their supports,
braces, guys, anchors, attachments and decor shall be properly
maintained, legible, functional and safe with regards to appearance,
structural integrity and electrical service.
6. Temporary signs that are visible from any public right -of -way shall
be allowed up to a maximum of sixty (60) days and subject to a
temporary sign permit issued by the Community Development
Department.
7. If the applicant wishes to deviate from the sign standards identified
herein, a comprehensive sign program may be prepared or a
modification permit application may be submitted for review and
consideration by the Zoning Administrator in accordance with the
applicable provisions of the Newport Beach Municipal Code.
15
24
4.0 SITE DEVELOPMENT REVIEW
4.1 Purpose
The purpose of the Site Development Review process is to ensure new
development proposals within the Newport Beach Country Club Planned
Community Development are consistent with the goals and policies of the
General Plan, provisions of this Planned Community Development Plan, the
Development Agreement and the findings set forth below in sub - section 4.3.
4.2 Application
An approval of Site Development Review application by the Planning
Commission shall be required for the construction of any new structure prior to
the issuance of a grading or building permit or issuance of an approval in concept
for Coastal Commission. Signs, tenant improvements to any existing buildings,
kiosks, and temporary structures are exempt from the site development review
process and subject to the applicable City's permits. The decision of Planning
Commission is the final, unless appealed in accordance with the Newport Beach
Municipal Code.
4.3. Findings
In addition to the general purposes set forth in sub - section 4.1 and in order to carry
out the purposes of this chapter as established by said section, the Site
Development Review procedures established by this Section shall be applied
according to and in compliance with the following findings:
1. The development shall be in compliance with all other provisions of the
Planned Community District Plan;
2. The development shall be compatible with the character of the
neighboring uses and surrounding sites and shall not be detrimental to the
orderly and harmonious development of the surroundings and of the City;
3. The development shall be sited and designed to maximize the aesthetic
quality of the project as viewed from surrounding roadways and
properties, with special consideration given to the mass and bulk of
buildings and the streetscape on Coast Highway; and
16
25
4. Site plan and layout of buildings, parking areas, pedestrian and vehicular
access ways, landscaping and other site features shall give proper
consideration to functional aspects of site development.
4.4. Contents
The Site Development Review application shall include all of the information and
materials specified by the Community Development Director and any additional
information review by the Planning Commission in order to conduct a thorough
review of the project in question. The following plans /exhibits may include, but
not limited to the following:
1. An aerial map showing the subject property, adjacent properties and
identifying their uses.
2. Comprehensive elevations and floor plans for new structures with
coordinated and complimentary architecture, design, materials and colors.
3. A parking and circulation plan showing golf cart and pedestrian paths in
addition to streets and fire lanes.
4. A comprehensive, cohesive and coordinated preliminary landscape plan.
5. A comprehensive, cohesive and coordinated lighting plan showing type,
location and color of all exterior lighting fixtures.
6. Comprehensive text and graphics describing the design philosophy for the
architecture, landscape architecture, material and textures, color palette,
lighting, and signage.
7. Text describing drainage and water quality mitigation measures.
8. A statement that the proposed new structure is consistent with the goals,
policies, and actions of the General Plan and Planned Community
Development Plan.
4.5 Public Hearing — Required Notice
A public hearing shall be held on all site development review applications. Notice
of such hearing shall be mailed not less than ten (10) days before the hearing
date, postage prepaid, using addresses from the last equalized assessment roll
or, alternatively, from such other records as contain more recent addresses, to
owners of property within a radius of three hundred (300) feet of the exterior
boundaries of the subject property. It shall be the responsibility of the applicant to
obtain and provide to the City the names and addresses of owners as required
by this Section. In addition to the mailed notice, such hearing shall.be posted in
17
MM
not less than two (2) conspicuous places on or close to the property at least ten
(10) days prior to the hearing.
4.6 Expiration and Revocation Site Development Review Approvals
1. Expiration. Any site development review approved in accordance with the
terms of this planned community development plan shall expire within
twenty -four (24) months from the effective date of final approval as
specified in the Time Limits and Extensions Section of the Newport Beach
Municipal Code, unless at the time of approval the Planning Commission
has specified a different period of time or an extension is otherwise
granted.
2. Violation of Terms. Any site development review approved in accordance
with the terms of this planned community development plan may be
revoked if any of the conditions or terms of such site development review
are violated or if any law or ordinance is violated in connection therewith.
3. Public Hearing. The Planning Commission shall hold a public hearing on
any proposed revocation after giving written notice to the permittee at
least ten (10) days prior to the hearing, and shall submit its
recommendations to the City Council. The City Council shall act thereon
within sixty (60) days after receipt of the recommendation of the Planning
Commission.
4.7. Fees
The applicant shall pay a fee as established by Resolution of the Newport Beach
City Council to the City with each application for Site Development Review under
this planned community development plan.
4.8.. Minor Changes by the Community Development Director
1. The following minor changes to an approved site plan may be approved
by the Community Development Director in compliance with Section
20.54.070 (Changes to an approved project) of the Newport Beach
Municipal Code:
a) Minor relocation of any proposed structure.
b) Reduction in the square footage of any structure and a
commensurate reduction in required parking, if applicable.
C) Reconfiguration of the golf clubhouse parking lot, including drive
aisles and /or parking spaces, subject to review and approval of the
City Traffic Engineer.
d) Reconfiguration of parking lot landscaping.
e) Modification of the approved architectural style.
f) Any other minor change to the site plan provided it does not
18
27
increase any structure area, height, number of units, number of
hotel rooms, and /or change of use.
2. Any proposed changes that are not deemed minor shall be subject to
review and approval by the Planning Commission.
19
22
Exhibit A
20
29
G�
r
20� G01
,P LAP
I ?p
fij<<
r "lA/ y r o /^Vr
r3oN,vr� r]oONC prR OR
a
O, /iAll,
T
e FOR
U1
Exhibit B
/<,OC•.._tr
�P
5
�4
`J
a
�7
O
rr
4
m
m
r-
y
SAN r�! ClAFd
Golf Course •i
c'
Golf Clubhouse
& Parking Lot
IVY
qT
21
Tennis Clubhouse,
Bungalows & Villas O
W
J
d
t,. o
.:r
01 899f4
30
C,Ry councH
/A\Wia.it lINir�����fi f3
•. _ -
(Development Agreement) with
Attached Exhibit "A"
31
S2
ORDINANCE NO. 2012 -5
AN ORDINANCE OF THE CITY OF NEWPORT BEACH
APPROVING DEVELOPMENT AGREEMENT NO. DA2010 -005
FOR PROPERTY LOCATED AT 1600 EAST COAST HIGHWAY
(PA2008 -152)
THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS:
SECTION 1. STATEMENT OF FACTS.
1. An application was filed by The Newport Beach Country Club, Inc., with respect to
property located at 1600 East Coast Highway, and legally described as Parcels 1 and 3
of Parcel Map No. 79 -704 and a Portion of Back Bay Drive as Shown on Parcel Map No.
79 -704, requesting an approval to redevelop the existing golf clubhouse of the Newport
Beach Country Club. The following approvals are requested or required in order to
implement the project as proposed:
a. A General Plan Amendment to increase the allowable development limit in
Anomaly No. 74 in Statistical Area L1 (Newport Center /Fashion Island) of the
General Plan Land Use Element by 21,000 gross square feet, from 35,000 to
56,000 gross square feet.
b. A Planned Community Development Plan adoption to provide development
standards and design guidelines for the golf course and its ancillary uses,
pursuant to Chapter 20.35 of the Municipal Code.
C. A Site Development Review to allow the construction of 54,819 square -foot golf
clubhouse with the associate parking lot and maintenance facility, pursuant to
the Section 4.3 of the Newport Beach Country Planned Community
Development Plan.
d. A Limited Term Permit (Temporary Structure and Uses) for the temporary
use /structure during the clubhouse reconstruction, pursuant to Section
20.60.015 of the Municipal Code.
e. A Development Agreement pursuant to Section 15.45.020.A.2.c of the
Municipal Code which requires a development agreement as the project
includes amendments to the General Plan and Zoning Code and construction of
new non - residential development in Statistical Area L1 (Newport
Center /Fashion Island).
2. The application was deemed complete on October 23, 2008; and pursuant to Ordinance
No. 2010 -21, the application is being considered and evaluated pursuant to the Zoning
Code in effect prior to November 25, 2010.
33
3. The Planning Commission held public hearings on August 4, 2011 and October 20,
2011, and November 17, 2011. At the November 171" hearing with a vote of 3 -2, the
Planning Commission adopted Resolution No. 1862, recommending the City Council to;
a. Adopt Mitigated Negative Declaration No. ND2010 -010 and the Mitigation
Monitoring and Reporting Program;
b. Approve General Plan Amendment No. GP2008 -005, Development Agreement
No. DA2010 -005, Limited Term Permit No. XP2011 -005 as proposed by the
applicant;
C. Adopt an amendment to Planned Community Development Plan No. PC2005 -002
(staffs alternative Planned Community Development Plan) reflecting the increase
in intensity for the larger golf clubhouse of 56,000 gross square feet; and
d. Approve Site Development Review No. SD2011 -003 as proposed by the
applicant.
4. The City Council public hearing was held on January 24, 2012, in the City Hall Council
Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time, place
and purpose of the meeting was given in accordance with the Newport Beach
Municipal Code.. Evidence, both written and oral, was presented to, and considered by,
the City Council at this meeting.
SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION.
1. An Initial Study and Mitigated Negative Declaration have been prepared in compliance
with the California Environmental Quality Act (CEQA), the State CEQA Guidelines,
and City Council Policy K -3.
2. The Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program
were adopted by City Council on January 24, 2012, by adopting certain CEQA
determinations containing within Resolution No. 2012 -11, which are hereby
incorporated by reference.
3. The City Council finds that judicial challenges to the City's CEQA determinations and
approvals of land use projects are costly and time consuming. In addition, project
opponents often seek an award of attorneys' fees in such challenges. As project
applicants are the primary beneficiaries of such approvals, it is appropriate that such
applicants should bear the expense of defending against any such judicial challenge,
and bear the responsibility for any costs, attorneys' fees, and damages which may be
awarded to a successful challenger.
SECTION 3. FINDINGS
1. Municipal Code Section 15.45.020.A.2.c (Development Agreement Required) requires
a development agreement as the project includes amendments to the General Plan
and Zoning Code and construction of new non - residential development in Statistical
Tmplt: 1.1/23/09
S4
Area L1 (Newport Center /Fashion Island). The development agreement includes all
the mandatory elements for consideration and the public benefits are appropriate
benefits to support conveying the vested development rights.
2. Consistent with Government Code Section 65867.5, the Development Agreement
provides vested rights and public benefits for the proposed development which is
consistent with the General Plan based on the following findings:
a. The project site is located within the Statistical Area L1 of the General Plan
Land Use Element. The Land Use Element designates the subject property
Parks and Recreation (PR), which is intended for active public or private
recreational use. Permitted uses include parks (both active and passive), golf
courses, marina support facilities, aquatic facilities, tennis clubs and courts,
private recreation, and similar facilities. The proposed redevelopment of the golf
clubhouse consistent with the proposed alternative planned community
development plan thereby would be consistent with this designation.
b. The General Plan limits total development on the subject site to 35,000 square
feet per Anomaly No. 74. A general plan amendment to increase the maximum
floor area to 56,000 square feet, a net increase of 21,000 square feet, is
proposed in order to accommodate the proposed new golf clubhouse.
C. General Plan Policy LU 3.2 encourages the enhancement of existing
neighborhoods, districts, and corridors, by allowing for re -use and infill with
uses that are complementary in type, form, scale, and character. The policy
states that changes in use and /or density /intensity should be considered only in
those areas that are economically underperforming, are necessary to
accommodate Newport Beach's share of projected regional population growth,
improve the relationship and reduce commuting distance between home and
jobs, or enhance the values that distinguish Newport Beach as a special place
to live for its residents. The scale of growth and new development shall be
coordinated with the provision of adequate infrastructure and public services,
including standards for acceptable traffic level of service.
The proposed General Plan Amendment for increased intensity is consistent
with General Plan Policy LU 3.2 as follows:
1. The increased intensity does not impact Newport Beach's share of
projected regional population growth. The existing golf clubhouse was
constructed in the 1950's and no longer meets the needs of its
membership or the Newport Beach Community. National and
international golf tournaments are held at the Newport Beach Country
Club as well as numerous local and regional charitable events which
distinguish Newport Beach from other destinations in the southern
California area. The reconstruction and modernization of the clubhouse
will enable the Newport Beach Country Club to retain its reputation as a
world class sporting venue.
Tmplt: 11 /23/09
S5
2. The increase in intensity would enhance the values that distinguish
Newport Beach as a special place to live for its residents. The proposed
reconstruction represents a significant investment to upgrade an aging
facility with modern amenities for Newport Beach Country Club members
and the greater Newport Beach community during special events, while
retaining both active and passive open space in an urban environment.
d. General Plan Policy LU 5.6.1 requires that buildings and properties be designed
to ensure compatibility within and as interfaces between neighborhoods,
districts, and corridors. An alternative planned community district development
plan has been prepared that contains development regulations ensuring
compatibility with the surrounding uses. The project, therefore, is consistent
with this policy.
e. General Plan Policy 6.14.4 reinforce the original design concept for Newport
Center by concentrating the greatest building mass and height in the
northeasterly section along San Joaquin Hill Roads, where the natural
topography is highest and progressively scaling down building mass and height
to follow the lower elevations toward the southwesterly edge along Coast
Highway.
The proposed General Plan Amendment for increased intensity is consistent
with General Plan Policy LU 6.14.4 in that the proposed reconstruction of the
golf clubhouse will allow for the expansion of an existing use allowed.by the
Land Use Element of the General Plan. The proposed alternative planned
community district development plan adheres to the original design concept for
Newport Center by not creating a building that is exceedingly high in the lower
area along Coast Highway. The golf clubhouse building height will not exceed
the nonresidential, nonshoreline 32/50 -foot height limit area.
SECTION 4. DECISION.
THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH DOES HEREBY ORDAIN AS
FOLLOWS:
1. The Development Agreement shall be adopted as depicted in Exhibit "A" attached
hereto and incorporated by reference.
2. If any section, subsection, sentence, clause or phrase of this ordinance is, for any
reason, held to be invalid or unconstitutional, such decision shall not affect the validity
or constitutionality of the remaining portions of this ordinance. The City Council hereby
declares that it would have passed this ordinance, and each section, subsection,
clause or phrase hereof, irrespective of the fact that anyone or more sections,
subsections, sentences, clauses and phrases be declared unconstitutional.
3. This action shall become final and effective thirty days after the adoption of this
Ordinance.
Tmplt: 11/23109
so
4. The Mayor shall sign and the City Clerk shall attest to the passage of this Ordinance.
This Ordinance shall be published once in the official newspaper of the City, and the
same shall become effective thirty (30) days after the date of its adoption.
This Ordinance was introduced at a regular meeting of the City Council of the City of Newport
Beach held on the 24th of January, 2012, and adopted on the 14th day of February, 2012, by
the following vote, to wit:
AYES, COUNCIL MEMBERS
NOES, COUNCIL MEMBERS
ABSENT, COUNCIL MEMBERS
MAYOR
ATTEST:
Leilani Brown, City Clerk
APPROVED AS TO FORM,
ICE OF CITY ATTORNEY:
Aaron Harp, City Attorney I
for the City of Newport Beach
TmpIC 1.1/23109
S7
EXHIBIT "A"
DEVELOPMENT AGREEMENT
TmpIL 91/23/09
32
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92663 -3884
Attn: City Clerk
(Space Above This Line Is for Recorder's Use Only)
This Agreement is recorded at the request and for
the benefit of the City of Newport Beach and is
exempt from the payment of a recording fee
pursuant to Government Code §§ 6103 and 27383.
DEVELOPMENT AGREEMENT
between
CITY OF NEWPORT BEACH
and
THE NEWPORT BEACH COUNTRY CLUB, INC.
(Concerning 1600 East Coast Highway)
AI 1- 00526 -NBCC/ hic Inal Bay Clubs 01.18.12
39
TABLE OF CONTENTS
1. Definitions ................................... ...............................
Page
.................. ............................... 2
2. General Provisions .............................................................................. ..............................6
11 Plan Consistency, Zoning Implementation ............................. ......................... ......6
2.2 Binding Effect of Agreement .................................................. ..............................6
2.3 NBCC Representations and Warranties Regarding Ownership of the
Property and Related Matters Pertaining to this Agreement .. ..............................6
2.4 Term ........................................................................................ ..............................6
3. Public Benefits .................................................................................... ..............................7
3.1 Public Benefit Fee ...........:....................................................... ..............................7
4. Development of Project ...................................................................... ..............................8
4.1 Applicable Regulations; NBCC's Vested Rights and City's Reservation of
Discretion With Respect to Subsequent Development Approvals .......................8
4.2 No Conflicting Enactments.. ................................................... ..............................9
4.3 Reservations of Authority ........::............................................ .............................10
5. Amendment or Cancellation of Agreement ....................................... .............................12
6. Enfor cement ....................................................................................... .............................12
7. Animal Review of NBCC's Compliance With Agreement ............... .............................12
7.1
General ................................................................................... .............................12
7.2
NBCC Obligation to Demonstrate Good Faith Compliance . .............................13
7.3
Procedure ............................................................................... .............................13
7.4
Annual Review a Non - Exclusive Means for Determining and Requiring
Cure of NBCC's Default ........................................................ .............................13
8. Events
of Default ............................................................................... .............................13
8.1
General Provisions ................................................................. .............................13
8.2
Default by NBCC ................................................................... .............................14
8.3
City's Option to Terminate Agreement ................................. .............................14
8.4
Default by City ....................................................................... .............................14
8.5
Waiver .................................................................................... .............................14
8.6
Specific Performance Remedy..... .......................................... .............................15
8.7
Monetary Damages ................................................................ .............................15
8.8
Additional City Remedy for NBCC's Default ....................... .............................15
8.9
No Personal Liability of City Officials, Employees, or Agents .........................
15
8.10
Recovery of Legal Expenses by Prevailing Patty in Any Action .......................15
9. Force Majeure .................................................................................... .............................16
AI I- 00526 -NBCC/ Inc Int'I Bay Clubs 01.13.12 Final
-1-
IN
Page
10. Indenmity Obligations ofNBCC ....................................................... .............................16
10.1 Indemnity Arising From Acts or Omissions of NBCC .......... .............................16
10.2 Third Party Litigation ............................................................ .............................16
11. Assignment ........................................................................................ .............................17
12. Mortgagee Rights ............................................................................... .............................18
12.1 Encumbrances on Property .................................................... .............................18
12.2 Mortgagee Protection ............................................................. .............................18
12.3 Mortgagee Not Obligated ...................................................... .............................18
12.4 Notice of Default to Mortgagee; Right of Mortgagee to Cure ............................19
13. Miscellaneous Terms ..................................................... ...............................
13.1 Notices ............................................................... ...............................
13.2 Project as Private Undertaking ........................... ...............................
13.3 Cooperat ion ........................................................ ...............................
13.4 Estoppel Certificates .......................................... ...............................
13.5 Rules of Construction ........................................ ...............................
13.6 Time Is of the Essence ....................................... ...............................
13.7 Waiver ................................................................ ...............................
13.8 Counterparts ....................................................... ...............................
13.9 Entire Agreement ............................................... ...............................
13.11 Construction ....................................................... ...............................
13.12 Successors and Assigns; Constructive Notice and Acceptance........
13.13 No Third Party Beneficiaries ............................. ...............................
13.14 Applicable Law and Venue ................................ ...............................
13.15 Section Headings ............................................... ...............................
13.16 Incorporation of Recitals and Exhibits. - ..........................................
13.17 Recordation ........................................................ ...............................
AI 1- 00526 -NBCC/ Inc ba'I Bay Clubs 01.13.12 Final
-I1-
..................19
..................19
.................. 20
........... I...... 20
.................. 20
.................. 21
.................. 21
.................. 21
.................. 21
.................. 21
..................22
.................. 22
.................. 22
.................. 22
.................. 23
.................. 23
..................23
41
DEVELOPMENT AGREEMENT
(Pursuant to California Government Code sections 65864 - 65869.5)
This DEVELOPMENT AGREEMENT (the "AAareement ") is dated for reference
purposes as of the _ day of 201_ (the " Agreement Date'), and is being entered
into by and between the CITY OF NEWPORT BEACH ( "QLty" ); and Newport Beach Country
Club, Incorporated ("NBCC"). City and NBCC are sometimes collectively referred to in this
Agreement as the "Parties" and individually as a "FiLty."
RECITALS
A. The Newport Beach Country Club, Incorporated (also referred to herein as
NBCC) is the owner and operator of The Newport Beach Country Club subject to a lease with
O'I -Till Properties, a California limited partnership, Allan Fainbarg alyd Sara Fainbarg as Trustees
of the Fainbarg Family Trust dated April 19, 1982 , Mesa Shopping Center -East, a California
General Partnership, and Mira Mesa -West, a California limited liability company (the "Lease "),
the fee owners of the 132 -acre parcel of real property (Property) that is described in the legal
description attached hereto as Exhibit A and depicted on the Overall Site Plan attached hereto as
Exhibit B 1 and Overall Site Plan Alternative Exhibit B2,
B. In order to encourage investment in, and commitment to, comprehensive planning
and public facilities financing, strengthen the public planning process and encourage private
implementation of the local general plan, provide certainty in the approval of projects in order to
avoid waste of time and resources, and reduce the economic costs of development by providing
assurance to property owners that they may proceed with projects consistent with existing land
use policies, rules, and regulations, the California Legislature adopted California Government
Code sections 65864- 65869.5 (the "Development Agreement Statute ") authorizing cities and
counties to enter into development agreements with persons or entities having a legal or
equitable interest in real property located within their jurisdiction.
C. On March 13, 2007, the City Council adopted Ordinance No. 2007 -6, entitled
"Ordinance Amending Chapter 15.45 of City of Newport Beach Municipal Code Regarding
Development Agreements" (the "Development Agreement Ordinance "). This Agreement is
consistent with the Development Agreement Ordinance.
D. As detailed in Section 4 of this Agreement, NBCC has agreed to provide a Public
Benefit Fee as consideration for this Agreement:
E. This Agreement is consistent with the City of Newport Beach General Plan,
including without limitation the General Plan's designation of the Property as "PR (Parks and
Recreation) the Coastal Land Use Plan's designation as "OS (Open Space)" and the Newport
Beach Country Club Planned Community District (PA 2008 -152) that was adopted in 1997 by
Ordinance No. 97 -10 and amended in 201_ by Ordinance No. _- in order to establish
appropriate zoning to regulate land use and development of the Property consistent with the
General Plan.
Al 1- 00526 - NBCC / Luc Int'I Bay Clubs -01.13.12 Final
-1-
42
F. In recognition of the significant public benefits that this Agreement provides, the
City Council has found that this Agreement: (i) is consistent with the City of Newport Beach
General Plan as of the date of this Agreement; (ii) is in the best interests of the health„ safety; and
general welfare of City, its residents, and the public; (iii) is entered into pursuant to, and
constitutes a present exercise of, City's police power; (iv) is consistent and has been approved
consistent with the Final Environmental Impact Report for the City of Newport Beach General
Plan 2006 Update (State Clearinghouse No. 20060 1 1 1 1 9) and the Mitigated Negative
Declaration for the Newport Beach Country Club Planned Convnunity District (PA 2008 -152 by
the City Council on or before the Agreement Date, both of which analyze the environmental
effects of the proposed development of the Project on the Property; and (v) is consistent and has
been approved consistent with provisions of California Government Code section 65867 and
City of Newport Beach Municipal Code chapter 15.45.
G. On , 201_, City's Planning Commission held a public hearing on
this Agreement, made findings and determinations with respect to this Agreement, and
recommended to the City Council that the City Council approve this Agreement.
H. On , 201, the City Council also held a public hearing on this
Agreement and considered the Planning Commission's recommendations and the testimony and
information submitted by City staff, NBCC, and members of the public. On ,
201_, consistent with applicable provisions of the Development Agreement Statute and
Development Agreement Ordinance, the City Council adopted its Ordinance No. _ (the
"Adopting Ordinance "), finding this Agreement to be consistent with the City of Newport Beach
General Plan and approving this Agreement.
AGREEMENT
NOW, THEREFORE, City and NBCC agree as follows:
Definitions.
In addition to any terns defined elsewhere in this Agreement, the following teens when
used in this Agreement shall have the meanings set forth below:
"Action" shall have the meaning ascribed in Section 8,10 of this Agreement.
"Adopting - Ordinance" shall mean City Council Ordinance No. _ approving and
adopting this Agreement.
"Agreement" shall mean this Development Agreement, as the same may be amended
fi•om time to time.
"Agreement Date" shall mean the date first written above, which date is the date the City
Council adopted the Adopting Ordinance.
"CEOA" shall mean the California Enviromnental Quality Act (California Public
Resources Code sections 21000-21177) and the implementing regulations promulgated
thereunder by the Secretary for Resources (California Code of Regulations, Title 14, section
15000 et seq.), as the same may be amended from time to time.
AI 1- 00526 -NBCC/ Inc Int'I Bay Clubs 01.13.12 Final
TS
"Cit ' shall mean the City of Newport Beach, a California charter city.
"City Council" shall mean the governing body of City.
"City's Affiliated Parties" shall have the meaning ascribed in Section 10.1 of this
Agreement.
"Claim" shall have the meaning ascribed in Section 10.1 of this Agreement.
"Coastal Development Permit" shall mean a permit issued by the California Coastal
Commission pursuant to subdivision (a) of Section 30600 of the California Coastal Act.
"CPI Index" shall mean the Consumer Price Index published from time to time by the
United States Department of Labor for all urban consumers (all items) for the smallest
geographic area that includes the City or, if such index is discontinued, such other similar index
as may be publicly available that is selected by City in its reasonable discretion.
"Cure Period" shall have the meaning ascribed in Section 8.1 of this Agreement.
"Default" shall have the meaning ascribed to that term in Section 8.1 of this Agreement.
"Develop" or "Development" shall mean to improve or the improvement of the Property
for the purpose of completing the structures, improvements, and facilities comprising the Project,
including but not limited to: grading; the construction of infrastructure and public facilities
related to the Project, whether located within or outside the Property; the construction of all of
the private improvements and facilities comprising the Project; the preservation or restoration, as
required of natural and man -made or altered open space areas; and the installation of
landscaping. The terms "Develop" and "Development," as used herein, do not include the
maintenance, repair, reconstruction, replacement, or redevelopment of any structure,
improvement, or facility after the initial construction and completion thereof.
"Development Agreement Ordinance" shall mean Chapter 15.45 of the City of Newport
Beach Municipal Code.
"Development Agreement Statute" shall mean California Government Code sections
65864- 65869.5, inclusive.
"Development Exactions" shall mean any requirement of City in connection with or
pursuant to any ordinance, resolution, rule, or official policy for the dedication of land, the
construction or installation of any public improvement or facility, or the payment of any fee or
charge in order to lessen, offset, mitigate, or compensate for the impacts of Development of the
Project on the environment or other public interests.
"Development Pla1r" shall mean the General Plan Land Use Element Amendment, the
Newport Beach Planned Community District, Development Plan approved by the City Council
on or before the Agreement Date, as the same may be amended from time to time consistent with
this Agreement.
A 11- 00526 -NBCCI Inc hn' I Bay Clubs 01. 13.12 Final
=1
"Development Regulations" shall mean the following regulations as they are in effect as
of the Effective Date and to the extent they govern or regulate the development of the Property,
but excluding any amendment or modification to the Development Regulations adopted,
approved, or imposed after the Effective Date that impairs or restricts NBCC's rights set forth in
this Agreement, unless such amendment or modification is expressly authorized by this
Agreement or is agreed to by NBCC in writing: the General Plan; the Development Plan; and, to
the extent not expressly superseded by the Development Plan or this Agreement, all other land
use and subdivision regulations governing the permitted uses, density and intensity of use,
design, improvement, and construction standards and specifications, procedures for obtaining
required City permits and approvals for development, and similar matters that may apply to
development of the Project on the Property during the Term of this Agreement that are set forth
in Title 15 of the Municipal Code (buildings and construction), Title 19 of the Municipal Code
(subdivisions), and Title 20 of the Municipal Code (planning and zoning), but specifically
excluding all other sections of the Municipal Code, including without limitation Title 5 of the
Municipal Code (business licenses and regulations). Notwithstanding the foregoing, the term
"Development Regulations," as used herein, does not include any City ordinance, resolution,
code, rule, regulation or official policy governing any of the following: (i) the conduct of
businesses, professions, and occupations; (ii) taxes and assessments; (iii) the control and
abatement of nuisances; (iv) the granting of encroachment permits and the conveyance of rights
and interests which provide for the use of or the entry upon public property; or (v) the exercise of
the power of eminent domain.
"Effective Date" shall mean the latest of the following dates, as applicable: (i) the date
that is thirty (30) days after the Agreement Date; (ii) if a referendum concerning the Adopting
Ordinance or any of the Development Regulations approved on or before the Agreement Date is
timely qualified for the ballot and a referendum election is held concerning the Adopting
Ordinance or any of such Development Regulations, the date on which the referendum is
certified resulting in upholding and approving the Adopting Ordinance and such Development
Regulations and becomes effective, if applicable; (iii) if a lawsuit is timely filed challenging the
validity or legality of the Adopting Ordinance, this Agreement, and/or any of the Development
Regulations approved on or before the Agreement Date, the date on which said challenge is
finally resolved in favor of the validity or legality of the Adopting Ordinance, this Agreement,
and /or the applicable Development Regulations, whether such finality is achieved by a final non-
appealable judgment, voluntary or involuntary dismissal (and the passage of any time required to
appeal an involuntary dismissal), or binding written settlement agreement; or (iv) the date of
approval of a coastal development permit for the Project. Promptly after the Effective Date
occurs, the Parties agree to cooperate in causing an appropriate instrument to be executed and
recorded against the Property memorializing the Effective Date.
"Environmental Laws" means all federal, state, regional, county, municipal, and local
laws, statutes, ordinances, rules, and regulations which are in effect as of the Agreement Date,
and all federal, state, regional, county, municipal, and local laws, statutes, rules, ordinances,
rules, and regulations which may hereafter be enacted and which apply to the Property or any
part thereof, pertaining to the use, generation, storage, disposal, release, treatment, or removal of
any Hazardous Substances, including without limitation the following: the Comprehensive
Environmental Response Compensation mud Liability Act of 1980, 42 U.S.C. Sections 9601,
et sew, as amended ( "CERCLA "); the Solid Waste Disposal Act, as amended by the Resource
Conservation and Recovery Act of 1976, 42 U.S.C. Sections 6901, et seq., as amended
AI 1. 00526 -NBCC/ Inc Int''l Bay Clubs 01.13.12 Final. 4
45
( "RCRA "); the Emergency Planning and Community Right to Know Act of 1986, 42 U.S.C.
Sections 11001 et sec., as amended; the Hazardous Materials Transportation Act, 49 U.S.C.
Section 1801, et M., as amended; the Clean Air Act, 42 U.S.C. Sections 7401 et sea., as
amended; the Clean Water Act, 33 U.S.C. Section 1251, et sec, as amended; the Toxic
Substances Control Act, 15 U.S.C. Sections 2601 et seo., as amended; the Federal Insecticide,
Fungicide and Rodenticide Act, 7 U.S.C. Sections 136 et seq., as amended; the Federal Safe
Drinking Water Act, 42 U.S.C. Sections 300f et se ., as amended; the Federal Radon and Indoor
Air Quality Research Act, 42 U.S.C. Sections 7401 et se q., as amended; the Occupational Safety
and Health Act, 29 U.S.C. Sections 651 et sea., as amended; and California Health and Safety
Code Section 25100, et seq.
"First Building Permit" ermit" shall mean the first building permit that is issued for the project.
"General Plan" shall mean City's 2006 General Plan adopted by the City Council on July
25, 2006, by Resolution No. 2006 -76, excluding any amendment after the Effective Date that
impairs or restricts NBCC's rights set forth in this Agreement, unless such amendment is
expressly authorized by this Agreement, is authorized by Sections 8 or 9, or is specifically
agreed to by NBCC. The Land Use Plan of the Land Use Element of the General Plan was
approved by City voters in a general election on November 7, 2006.
"Hazardous Substances" means any toxic substance or waste, pollutant, hazardous
substance or waste, contaminant, special waste, industrial substance or waste, petroleum or
petroleum- derived substance or waste, or any toxic or hazardous constituent or additive to or
breakdown component from any such substance or waste, including without limitation any
substance, waste, or material regulated under or defined as "hazardous" or "toxic" under any
Environmental Law.
"Mortgage" shall mean a mortgage, deed of trust, sale and leaseback arrangement, or any
other form of conveyance in which the Property, or a part or interest in the Property, is pledged
as security and contracted for in good faith and for fair value.
"Mortgagee" shall mean the Bolder of a beneficial interest under a Mortgage or any
successor or assignee of the Mortgagee.
"Notice of Default" shall have the meaning ascribed in Section 8.1 of this Agreement.
"Party" or "Parties" shall mean either City or NBCC or both, as determined by the
context.
"Project" shall mean all on -site and off -site improvements that NBCC is authorized
and /or required to construct with respect to each parcel of the Property, as provided in this
Agreement and the Development Regulations, as the same may be modified or amended from
time to time consistent with this Agreement and applicable law.
"Propert y" is described in Exhibit A and depicted on Exhibit B.
A 11- 00526 -N BCC/ hic Intl Bay Clubs 01.13.12 Final 5
t_
"Public Benefit Fee" shall have the meaning ascribed in Section 3.1 of this Agreement.
"Subsequent Development Approvals" shall mean all discretionary development and
building approvals that NBCC is required to obtain to Develop the Project on and with respect to
the Property after the Agreement Date consistent with the Development Regulations.
"Term" shall have the meaning ascribed in Section 2.4 of this Agreement.
"Termination Date" and "Lot Termination Date" shall have the meaning ascribed in
Section 2.4 of this Agreement.
"Transfer" shall have the meaning ascribed in Section 11 of this Agreement.
2. General Provisions.
2.1 Plan Consistency, Zoning Implementation.
This Agreement and the Development Regulations applicable to the Property will cause
City's zoning and other land use regulations for the Property to be consistent with the General
Plan.
2.2 Binding Effect of Agreement.
The Property is hereby made subject to this Agreement. Development of the Property is
hereby authorized and shall be carried out in accordance with the terms of this Agreement.
2,3 NBCC Representations and Warranties Regarding Ownership of the Property and
Related Matters Pertaining to this Agreement.
NBCC and each person executing this Agreement on behalf of NBCC hereby represents
and warrants to City as follows: (i) that NBCC is the lessee of the Property; (ii) if NBCC or any
co -owner comprising NBCC is a legal entity that such entity is duly formed and existing and is
authorized to do business in the State of California; (iii) if NBCC or any co -owner comprising
NBCC is a natural person that such natural person has the legal right and capacity to execute this
Agreement; (iv) that all actions required to be taken by all persons and entities comprising
NBCC to enter into this Agreement have been taken and that NBCC has the legal authority to
enter into this Agreement; (v) that NBCC's entering into and performing its obligations set forth
in this Agreement will not result in a violation of any obligation, contractual or otherwise, that
NBCC or any person or entity comprising NBCC has to any third party; (vi) that neither NBCC
nor any co -owner comprising NBCC is the subject of any voluntary or involuntary bankruptcy
petition; and (vii) that NBCC has no actual knowledge of any pending or threatened claims of
any person or entity affecting the validity of any of the representations and warranties set forth in
clauses (i) -(vi), inclusive, or affecting NBCC's authority or ability to enter into or perform any of
its obligations set forth in this Agreement.
2.4 Term.
The term of this Agreement (the "Term ") shall commence on the Agreement Date and
shall terminate on the "Termination Date."
All -00526 -NBCC/ IOC. MCI Bay Clubs 01.17.12 Final
47
Notwithstanding any other provision set forth in this Agreement to the contrary, if either
Party reasonably determines that (lie Effective Date of this Agreement will not occur because (i)
the Adopting Ordinance or any of the Development Regulations approved on or before the
Agreement Date for the Project has/have been disapproved by City's voters at a referendum
election or (ii) a final non - appealable judgment is entered in a judicial action challenging the
validity or legality of the Adopting Ordinance, this Agreement, and /or any of the Development
Regulations for the Project approved on or before the Agreement Date such that this Agreement
and /or any of such Development Regulations is /are invalid and unenforceable in whole or in
such a substantial part that thejudginent substantially impairs such Patty's rights or substantially
increases its obligations or risks hereunder or thereunder, then such Party shall have the right to
terminate this Agreement upon delivery of a written notice of termination to the other Party, in
which event neither Party shall have any further rights or obligations hereunder except that
NBCC's indemnity obligations set forth in Article 10 shall remain in Rill force and effect and
shall be enforceable, and the Development Regulations applicable to the Project and the Property
only (but not those general Development Regulations applicable to other properties in the City)
shall similarly be null and void at such time.
The Termination Date shall be the earliest of the following dates: (i) the tenth (10th)
anniversary of the Agreement Date, as said date may be extended in accordance with Section 5
of this Agreement; (ii) such earlier date that this Agreement may be terminated in accordance
with Articles 5, 7, and /or Section 8.3 of this Agreement and /or Sections 65865.1 and/or 65868 of
the Development Agreement Statute; or (iii) completion of the Project in accordance with the
terms of this Agreement, including Owner's complete satisfaction, performance, and payment, as
applicable, of all Development Exactions, the issuance of all required final occupancy permits,
and acceptance by City or applicable public agency(ies) or private entity(ies) of all required
offers of dedication.
Notwithstanding any other provision set forth in this Agreement to the contrary, the
provisions set forth in Article 10 and Section 13.10 (as well as any other NBCC obligations set
forth in this Agreement that are expressly written to survive the Termination Date) shall survive
the Termination Date of this Agreement.
3. Public Benefits.
3.1 Public Benefit Fee.
As consideration for City's approval and performance of its obligations set fortli in this
Agreement, NBCC shall pay to City a fee that shall be in addition to any other fee or charge to
which the Property and the Project would otherwise be subject (herein, the "Public Benefit Fee ")
in the sum of Ten dollars ($10) per square foot of construction for the proposed golf clubhouse
with the unpaid balance of said Public Benefit Fee increased on the first January 1 following the
Effective Date of this Agreement by the percentage increase in the CPI Index between the
Effective Date and said January Is` date (the first "Adjustment Date ") and thereafter with the
unpaid balance of said Public Benefit Fee increased on each subsequent January 1 during the
Tenn of this Agreement (each, an "Adjustment Date ") by the percentage increase in the CPI
Index in the year prior to the applicable Adjustment Date. The amount of the percentage
increase in the CPI Index on the applicable Adjustment Dates shall in each instance be calculated
based on the then most recently available CPI Index figures such that, for example, if the
A 11. 00526 - NBCC / Inc lm'l Bay Clubs 01.13.12 Final 7
42
Effective Date of this Agreement falls on July 1 and the most recently available CPI Index figure
on the first Adjustment Date (January 1 of the following year) is the CPI Index for November of
the preceding year, the percentage increase in the CPI Index for that partial year (a 6 -month
period) shall be calculated by comparing the CPI Index for November of the preceding year with
the CPI Index for May of the preceding year (a 6 -month period). In no event, however, shall
application of the CPI Index reduce the amount of the Public Benefit Fee (or unpaid portion
thereof) below the amount in effect prior to any applicable Adjustment Date. NBCC shall pay
the Public Benefit Fee at the following time(s): prior to issuance of the first building permit for
the construction of the proposed golf clubhouse. Notwithstanding any other provision set forth
in this Agreement to the contrary, during the Term of this Agreement City shall not increase the
Public Benefit Fee except pursuant to the CPI Index as stated in this Section 3.1. The Public Fee
Benefit Fee shall be calculated based on the total square feet of construction for the proposed
golf clubhouse and NBCC shall not be entitled to any credit or offset to the Public Benefit Fee
for any existing buildings or structures. NBCC acknowledges by its approval and execution of
this Agreement that it is voluntarily agreeing to pay the Public Benefit Fee, that its obligation to
pay the Public Benefit Fee is an essential term of this Agreement and is not severable from
City's obligations and NBCC's vesting rights to be acquired hereunder, and that NBCC
expressly waives any constitutional, statutory, or common law right it might have in the absence
of this Agreement to protest or challenge the payment of such fee on any ground whatsoever,
including without limitation pursuant to the Fifth and Fourteenth Amendments to the United
States Constitution, California Constitution Article I Section 19, the Mitigation Fee Act
(California Government Code Section 66000 el seg.), or otherwise. In addition to any other
remedy set forth in this Agreement for NBCC's default, if NBCC shall fail to timely pay any
portion of the Public Benefit Fee when due City shall have the right to withhold issuance of any
further building permits, occupancy permits, or other development or building permits for the
Project.
4. Development of Project.
4.1 Applicable Regulations, NBCC's Vested Rights and City's Reservation of
Discretion With Respect to Subsequent Development Approvals.
Other than as expressly set forth in this Agreement, during the Term of this Agreement,
(i) NBCC shall have the vested right to Develop the Project on and with respect to the Property
in accordance with the terms of the Development Regulations and this Agreement and (ii) City
shall not prohibit or prevent development of the Property on grounds inconsistent with the
Development Regulations or this Agreement. Notwithstanding the foregoing, nothing herein is
intended to limit or restrict City's discretion with respect to (i) review and approval requirements
contained in the Development Regulations, (ii) exercise of any discretionary authority City
retains under the Development Regulations, (iii) the approval, conditional approval, or denial of
any Subsequent Development Approvals that are required for Development of the Project as of
the Effective Date, or (iv) any environmental approvals that may be required under CEQA or any
other federal or state law or regulation in conjunction with any Subsequent Development
Approvals that may be required for the Project, and in this regard, as to future actions referred to
in clauses (i) -(iv) of this sentence, City reserves its full discretion to the same extent City would
have such discretion in the absence of this Agreement. In addition, it is understood and agreed
that nothing in this Agreement is intended to vest NBCC's rights with respect to any laws,
regulations, rules, or official policies of any other governmental agency or public utility
A 11- 00526- NBCC / Inc Inl'i Bay Clubs 01.13.12 Final 8
T9
company with jurisdiction over the Property or the Project; or any applicable federal or state
laws, regulations, rules, or official policies that may be inconsistent with this Agreement and that
override or supersede the provisions set forth in this Agreement, and regardless of whether such
overriding or superseding laws, regulations, rules, or official policies are adopted or applied to
the Property or the Project prior or subsequent to the Agreement Date.
Development of the property includes approval of this Agreement, a General Plan Land
Use Element Amendment, The Newport Beach Country Club Planned Community Development
Plan, a Mitigated Negative Declaration and Site Development Plans that will allow NBCC to
reconstruct the existing 23,469 square foot golf clubhouse to a maximum of 56,000 square feet
with a maximum building height of 50 feet, subterranean golf cart parking and storage under the
golf clubhouse, a golf course maintenance building and to provide an upgraded project entry,
parking and landscaping. The project requires the approval of a Coastal Development Permit by
the California Coastal Commission.
NBCC has expended and will continue to expend substantial amounts of time and money
planning and preparing for Development of the Project. NBCC represents and City
acknowledges that NBCC would not make these expenditures without this Agreement, and that
NBCC is and will be making these expenditures in reasonable reliance upon its vested rights to
Develop the Project as set forth in this Agreement.
NBCC may apply to City for permits or approvals necessary to modify or amend the
Development specified in the Development Regulations, provided that the request does not
propose an increase in the maximum density, intensity, height, or size of proposed structures, or
a change in use that generates more peak hour traffic or more daily traffic and, in addition,
NBCC may apply to City for approval of minor amendments to existing tentative tract maps,
tentative parcel maps, or associated conditions of approval, consistent with City of Newport
Beach Municipal Code section 19.12.090. This Agreement does not constitute a promise or
commitment by City to approve any such permit or approval, or to approve the same with or
without any particular requirements or conditions, and City's discretion with respect to such
matters shall be the same as it would be in the absence of this Agreement.
4.2 No Conflicting Enactments.
Except to the extent City reserves its discretion as expressly set forth in this Agreement,
during the Tern of this Agreement City shall not apply to the Project or the Property any
ordinance, policy, rule, regulation, or other measure relating to Development of the Project that
is enacted or becomes effective after the Effective Date to the extent it conflicts with this
Agreement. This Section 4.2 shall not restrict City's ability to enact an ordinance, policy, rule,
regulation, or other measure applicable to the Project pursuant to California Government Code
Section 65866 consistent with the procedures specified in Section 4.3 of this Agreement. In
Pardee Construction Co. v. City of Camarillo (1984) 37 Cal.3d 465, the CaHomia Supreme
Court held that a construction company was not exempt from a city's growth control ordinance
even though the city and construction company had entered into a consent judgment (tantamount
to a contract under California law) establishing the company's vested rights to develop its
property consistent with the zoning. The California Supreme Court reached this result because
the consent judgment failed to address the timing of development. The Parties intend to avoid
the result of the Pardee case by acknowledging and providing in this Agreement that NBCC
AI1- 00526- NBCC/inelnrlBay clubs 01.13.12rimi 9
50
shall have the vested right to Develop the Project on and with respect to the Property at the rate,
timing, and sequencing that NBCC deems appropriate within the exercise of NBCC's sole
subjective business judgment, provided that such Development occurs in accordance with this
Agreement and the Development Regulations, notwithstanding adoption by City's electorate of
an initiative to the contrary after the Effective Date. No City moratorium or other similar
limitation relating to the rate, timing, or sequencing of the Development of all or any part of the
Project and whether enacted by initiative or another method, affecting subdivision maps,
building permits, occupancy certificates, or other entitlement to use, shall apply to the Project to
the extent such moratorium or other similar lirtation restricts NBCC's vested rights in this
Agreement or otherwise conflicts with the express provisions of this Agreement.
4.3 Reservations of Authority.
Notwithstanding any other provision set forth in this Agreement to the contrary, the laws,
rules, regulations, and official policies set forth in this Section 4.3 shall apply to and govern the
Development of the Project on and with respect to the Property.
4.3.1 Procedural Regulations. Procedural regulations relating to hearing bodies,
petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals,
and any other matter of procedure shall apply to the Property, provided that such procedural
regulations are adopted and applied City-wide or to all other properties similarly situated in City.
4.3.2 Processing and Permit Fees. City shall have the right to charge and NBCC
shall be required to pay all applicable processing and permit fees to cover the reasonable cost to
City of processing and reviewing applications and plans for any required Subsequent
Development Approvals, building permits, excavation and grading permits, encroachment
permits, and the like, for performing necessary studies and reports in connection therewith,
inspecting the work constructed or installed by or on behalf of Owner, and monitoring
compliance with any requirements applicable to Development of the Project, all at the rates ill
effect at the time fees are due.
4.3.3 Consistent Future City Regulations. City ordinances, resolutions,
regulations, and official policies governing Development which do not conflict with the
Development Regulations, or with respect to such regulations that do conflict, where NBCC has
consented in writing to the regulations, shall apply to the Property.
4.3.4 Development Exactions Applicable to Propert y. During the Term of this
Agreement, NBCC shall be required to satisfy and pay all Development Exactions at the time
performance or payment is due to tire same extent and in the same amount(s) that would apply to
NBCC and the Project in the absence of this Agreement; provided, however, that to the extent
the scope and extent of a particular Development Exaction (excluding any development impact
fee) for the Project has been established and fixed by City in tine conditions of approval for any
of the Development Regulations approved on or before the Agreement Dale City shall not alter,
increase, or modify said Development Exaction in a manner that is inconsistent with such
Development Regulations without NBCC's prior written consent or as may be otherwise
required pursuant to overriding federal or state laws or regulations (Section 4.3.5 hereinbelow).
In addition, nothing in this Agreement is intended or shall be deemed to vest NBCC against the
obligation to pay any of the following (which are not included within the definition of
AI I- 00526 -NaCC/ Ine Inrl Bay Clubs 01.13.12 Final 10
51-
"Development Exactions ") in the full amount that would apply in the absence of this Agreement:
(i) City's normal fees for processing, environmental assessment and review, tentative tract and
parcel map review, plan checking, site review and approval, administrative review, building
permit, grading permit, inspection, and similar fees imposed to recover City's costs associated
with processing, reviewing, and inspecting project applications, plans, and specifications; (ii)
fees and charges levied by any other public agency, utility, district, or joint powers authority,
regardless of whether City collects those fees and charges; or (iii) community facility district
special taxes or special district assessments or similar assessments, business license fees, bonds
or other security required for public improvements, transient occupancy taxes, sales taxes,
property taxes, sewer lateral connection fees, water service connection fees, new water meter
fees, and the Property Development Tax payable under Section 3.12 of City's Municipal Code.
4.3.5 Overriding Federal and State Laws and Remilations, Federal and state
laws and regulations that override NBCC's vested rights set forth in this Agreement shall apply
to the Property, together with any City ordinances, resolutions, regulations, and official policies
that are necessary to enable City to comply with the provisions of any such overriding federal or
state laws and regulations, provided that (i) NBCC does not waive its right to challenge or
contest the validity of any such purportedly overriding federal, state, or City law or regulation;
and (ii) upon the discovery of any such overriding federal, state, or City law or regulation that
prevents or precludes compliance with any provision of this Agreement, City or NBCC shall
provide to the other Party a written notice identifying the federal, state, or City law or regulation,
together with a copy of the law or regulation and a brief written statement of the conflict(s)
between that law or regulation and the provisions of this Agreement. Promptly thereafter City
and NBCC shall meet and confer in good faith in a reasonable attempt to determine whether a
modification or suspension of this Agreement, in whole or in part, is necessary to comply with
such overriding federal, state, or City law or regulation. In such negotiations, City and NBCC
agree to preserve the terms of this Agreement and the rights of NBCC as derived from this
Agreement to the maximum feasible extent while resolving the conflict. City agrees to cooperate
with NBCC at no cost to City .in resolving the conflict in a manner which minimizes any
financial impact of the conflict upon NBCC. City also agrees to process in a prompt manner
NBCC's proposed changes to the Project and any of the Development Regulations as may be
necessary to comply with such overriding federal, state, or City law or regulation; provided,
however, that the approval of such changes by City shall be subject to the discretion of City,
consistent with this Agreement.
4.3.6 Public Health and Safetv. Any City ordinance, resolution, rule, regulation,
program, or official policy that is necessary to protect persons on the Property or in the
immediate vicinity from conditions dangerous to their health or safety, as reasonably determined
by City, shall apply to the Property, even though the application of the ordinance, resolution, rule
regulation, program, or official policy would result in the impairment of NBCC's vested rights
under this Agreement.
AI 1- 00526 -NBCC/ 1110In1'l Bay Clubs 01.13.12 Final 1 I
152
4.3.7 Uniform Building Standards. Existing and future building and building -
related standards set forth in the uniform codes adopted and amended by City from time to time,
including building, plumbing, mechanical, electrical, housing, swimming pool, and fire codes,
and any modifications and amendments thereof shall all apply to the Project and the Property to
the same extent that the same would apply in the absence of this Agreement.
4.3.8 Public Works Improvements. To the extent NBCC constructs or installs
any public improvements, works, or facilities, the City standards in effect for such public
improvements, works, or facilities at the time of City's issuance of a permit, license, or other
authorization for construction or installation of same shall apply.
4.3.9 No Guarantee or Reservation of Utility Capacit -y. Notwithstanding any
other provision set forth in this Agreement to the contrary, nothing un this Agreement is intended
or shall be interpreted to require City to guarantee or reserve to or for the benefit of NBCC or the
Property any utility capacity, service, or facilities that may be needed to serve the Project,
whether domestic or reclaimed water service, sanitary sewer transmission or wastewater
treatment capacity, downstream drainage capacity, or otherwise, and City shall have the right to
limit or restrict Development of the Project if and to the extent that City reasonably determines
that inadequate utility capacity exists to adequately serve the Project at the time Development is
scheduled to commence.
Amendment or Cancellation of Agreement
Other than modifications of this Agreement under Section 8.3 of this Agreement, this
Agreement may be amended or canceled in whole or in part only by mutual written and executed
consent of the Parties in compliance with California Government Code section 65868 and City of
Newport Beach Municipal Code section 15.45.060 or by unilateral termination by City in the
event of an uncured default of NBCC.
Enforcement.
Unless this Agreement is amended, canceled, modified, or suspended as authorized
herein or pursuant to California Government Code section 65869.5, this Agreement shall be
enforceable by either Party despite any change in any applicable general or specific plan, zoning,
subdivision, or building regulation or other applicable ordinance or regulation adopted by City
(including by City's electorate) that purports to apply to any or all of the Property.
Annual Review ofNIBCC's Compliance With Agreement.
7.1 General.
City shall review this Agreement once during every twelve (12) month period following
the Effective Date for compliance with the terns of this Agreement as provided in Government
Code Section 65865.1. NBCC (including any successor to the owner executing this Agreement
on or before the Agreement Date) shall pay City a reasonable fee in an amount City may
reasonably establish from time to time to cover the actual and necessary costs for the annual
review. City's failure to timely provide or conduct an annual review shall not constitute a
Default hereunder by City.
Al 1- 00526 -N BCC hie Wrl Bay Clubs 01.13.12 Final 12
155
72 NBCC Obligation to Demonstrate Good Faith Compliance.
During each annual review by City, NBCC is required to demonstrate good faith
compliance with the terms of the Agreement. NBCC agrees to furnish such evidence of good
faith compliance as City, in the reasonable exercise of its discretion, may require, thirty (30) days
prior to each anniversary of the Effective Date during the Term.
7.3 Procedure.
The City Council of City shall conduct a duly noticed hearing and shall determine, on the
basis of substantial evidence, whether or not NBCC has, for the period under review, complied
with the terms of this Agreement. If the City Council finds that NBCC has so complied, the
annual review shall be concluded. If the City Council finds, on the basis of substantial evidence,
that NBCC has not so complied, written notice shall be sent to NBCC by first class mail of the
City Council's finding of non - compliance, and NBCC shall be given at least ten (10) days to
cure any noncompliance that relates to the payment of money and thirty (30) days to cure any
other type of noncompliance. If a cure not relating to the payment of money cannot be
completed within thirty (30) days for reasons which are beyond the control of NBCC, NBCC
must commence the cure within such thirty (30) days and diligently pursue such cure to
completion. If NBCC fails to cure such noncompliance within the time(s) set forth above, such
failure shall be considered to be a Default and City shall be entitled to exercise the remedies set
forth in Article 8-below.
7.4 Annual Review a Non- Exclusive Means for Determining and Requiring Cure of
NBCC's Default.
The annual review procedures set forth in this Article 7 shall not be the exclusive means
for City to identify a Default by NBCC or limit City's rights or remedies for any such Default.
8. Events of Default.
8.1 General Provisions.
In the event of any material default, breach, or violation of the terms of this Agreement
( "Default "), the Party alleging a Default shall have the right to deliver a written notice (each, a
"Notice of Default ") to the defaulting Party, The Notice of Default shall specify the nature of the
alleged Default and a reasonable manner and sufficient period of time (ten (10) days if the
Default relates to the failure to tinily make a monetary payment due hereunder and not less than
thirty (30) days in the event of non - monetary Defaults) in which the Default must be cured (the
"Cure Period "). During the Cure Period, the Party charged shall not be considered in Default for
the purposes of termination of this Agreement or institution of legal proceedings. If the alleged
Default is cured within the Cure Period, then the Default thereafter shall be deemed not to exist.
If a non - monetary Default cammt be cured during the Care Period with the exercise of
commercially reasonable diligence, the defaulting Party must promptly commence to cure as
quickly as possible, and in no event later than thirty (30) days after it receives the Notice of
Default, and thereafter diligently pursue said cure to completion.
A 11-0 0526 - NBCC / hie llrt'I Bay clubs 01.13.12 Final 13
54
8.2 Default by NBCC.
If NBCC is alleged to have committed a non- monetary Default and it disputes the
claimed Default; it may make a written request for an appeal hearing before the City Council
within ten (10) days of receiving the Notice of Default, and a public hearing shall be scheduled at
the next available City Council meeting to consider NBCC's appeal of the Notice of Default.
Failure to appeal a Notice of Default to the City Council within the ten (10) day period shall
waive any right to a hearing on the claimed Default. If NBCC's appeal of the Notice of Default
is timely and in good faith but after a public hearing of NBCC's appeal the City Council
concludes that NBCC is in Default as alleged in the Notice of Default, the accrual date for
commencement of the thirty (30) day Cure Period provided in Section 8.1 shall be extended until
the City Council's denial of NBCC's appeal is communicated to NBCC.
8.3 City's Option to Terminate Agreement.
In the event of an alleged NBCC Default, City may not terminate this Agreement without
first delivering a written Notice of Default and providing NBCC with the opportunity to cure the
Default within the Cure Period, as provided in Section 8. 1, and complying with Section 8,2 if
NBCC timely appeals any Notice of Default with respect to a non- monetary Default, A
termination of this Agreement by City shall be valid only if good cause exists and is supported
by evidence presented to the City Council at or in connection with a duly noticed public hearing
to establish the existence of a Default. The validity of any termination may be judicially
challenged by NBCC. Any such judicial challenge must be brought within thirty (30) days of
service on NBCC, by first class mail, postage prepaid, of written notice of termination by City or
a written notice of City's determination of an appeal of the Notice of Default as provided in
Section 8.2. It is the intention of the Parties that, while the City Council may declare a default
and initiate termination of this Agreement on the basis of substantial evidence in the
administrative record, if the declaration of default is contested in court, the court will review the
default claim de novo and base its decision on whether the preponderance of evidence supports
the City Council's finding of breach.
8.4 Default by City.
If NBCC alleges a City Default and alleges that the City has not cured the Default within
the Cure Period, NBCC may pursue any equitable remedy available to it under this Agreement,
including, without limitation, an action for a writ of mandamus, injunctive relief, or specific
performance of City's obligations set forth in this Agreement. Upon a City Default, any
resulting delays in NBCC's performance hereunder shall neither be a NBCC Default nor
constitute grounds for termination or cancellation of this Agreement by City and shall, at
NBCC's option (and provided NBCC delivers written notice to City within thirty (30) days of
the commencement of the alleged City Default), extend the Tern for a period equal to the length
of the delay.
8.5 Waiver.
Failure or delay by either Party in delivering a Notice of Default shall not waive that
Party's right to deliver a future Notice of Default of the same or any other Default.
AI 1- 00526 -NBCCI 1110 lurl Bay Clubs 01.13.12 Final 14
155
8.6 Specific Performance Remedy.
Due to the size, nature, and scope of the Project, it will not be practical or possible to
restore the Property to its pre- existing condition once implementation of this Agreement has
begun. After such implementation, both NBCC and City may be foreclosed from other choices
they may have had to plan for the development of the Property, to utilize the Property or provide
for other benefits and alternatives. NBCC and City have invested significant time aid resources
and performed extensive planning and processing of the Project in agreeing to the terms of this
Agreement and will be investing even more significant time and resources in implementing the
Project in reliance upon the terms of this Agreement. It is not possible to determine the smn of
money which would adequately compensate NBCC or City for such efforts. For the above
reasons, City and NBCC agree that damages would not be an adequate remedy if either City or
NBCC fails to carry out its obligations under this Agreement. Therefore, specific performance
of this Agreement is necessary to compensate NBCC if City fails to carry out its obligations
under this Agreement or to compensate City if NBCC falls to carry out its obligations under this
Agreemeni.
8.7 Monetary Damages.
The Parties agree that monetary damages shall not be an available remedy for either Party
for a Default hereunder by the other Party; provided, however, that (i) nothing in this Section 8.7
is intended or shall be interpreted to limit or restrict City's right to recover the Public Benefit
Fees due from NBCC as set forth herein; and (ii) nothing in this Section 8.7 is intended or shall
be interpreted to limit or restrict Owner's indemnity obligations set forth in Article 10 or the
right of the prevailing Party in any Action to recover its litigation expenses, as set forth in
Section 8.10.
8.8 Additional City Remedy for NBCC's Default.
In the event of any Default by NBCC, in addition to any other remedies which may be
available to City, whether legal or equitable, City shall be entitled to receive and retain any
Development Exactions applicable to the Project or the Property, including any fees, grants,
dedications, or improvements to public property which it may have received prior to NBCC's
Default without recourse from NBCC or its successors or assigns.
8.9 No Personal Liability of City Officials, Employees, or Agents.
No City official, employee, or agent shall have any personal liability hereunder for a
Default by City of any of its obligations set forth in this Agreement.
8.10 Recovery of Legal Expenses by Prevailing Party in Any Action.
In any judicial proceeding, arbitration, or mediation (collectively, an "Action ") between
the Parties that seeks to enforce the provisions of this Agreement or arises out of this Agreement,
the prevailing Party shall recover all of its actual and reasonable costs and expenses, regardless
of whether they would be recoverable under California Code of Civil Procedure section 1033.5
or California Civil Code section 1717 in the absence of this Agreement. These costs and
expenses include expert witness fees, attorneys' fees, and costs of investigation and preparation
before initiation of the Action. The right to recover these costs and expenses shall accrue upon
At 1-00526-NDCC/ Inc Intl Bay Clubs 01.13.12 Final 15
S0
initiation of the Action, regardless of whether the Action is prosecuted to a final judgment or
decision.
9. Force Majeure.
Neither Party shall be deemed to be in Default where failure or delay in performance of
any of its obligations under this Agreement is caused, through no fault of the Party whose
performance is prevented or delayed, by floods, earthquakes, other acts of God, fires, wars, riots
or similar hostilities, strikes or other labor difficulties, state or federal regulations, or court
actions. Except as specified above, nonperformance shall not be excused because of the act or
omission of a third person. In no event shall the occurrence of an event of force majeure operate
to extend the Tern of this Agreement. In addition, in no event shall the time for performance of
a monetary obligation, including without limitation NBCC's obligation to pay Public Benefit
Fees, be extended pursuant to this Section.
10. Indemnity Obligations of NBCC.
10.1 Indemnity Arising From Acts or Omissions of NBCC.
NBCC shall indemnify, defend, and hold harmless City and City's officials, employees,
agents, attorneys, and contractors (collectively, the "City's Affiliated Patties ") from and against
all suits, claims, liabilities, losses, damages, penalties, obligations, and expenses (including but
not limited to attorneys' fees and costs) (collectively, a "Claim ") that may arise, directly or
indirectly, from the acts, omissions, or operations of NBCC or NBCC's agents, contractors,
subcontractors, agents, or employees in the course of Development of the Project or any other
activities of NBCC relating to the Property or pursuant to this Agreement. City shall have the
right to select and retain counsel to defend any Claim filed against City and /or any of City's
Affiliated Parties, and NBCC shall pay the reasonable cost for defense of any Claim. The
indemnity provisions in this Section 10,1 shall continence on the Agreement Date, regardless of
whether the Effective Date occurs, and shall survive the Termination Date.
10.2 Third Party Litigation.
In addition to its indemmnity obligations set forth in Section 10.1, NBCC shall indemnify,
defend, and hold harmless City and City's Affiliated Parties from and against any Claim against
City or City's Affiliated Parties seeking to attack, set aside, void, or annul the approval of this
Agreement, the Adopting Ordinance, any of the Development Regulations for the Project
(including without limitation any actions taken pursuant to CEQA with respect thereto), any
Subsequent Development Approval, or the approval of any permit granted pursuant to this
Agreement. Said indemnity obligation shall include payment of attorney's fees, expert witness
fees, and court costs. City shall promptly notify NBCC of any such Claim and City shall
cooperate with NBCC in the defense of such Claim. If City fails to promptly notify NBCC of
such Claim, NBCC shall not be responsible to indemnify, defend, and hold City harmless from
such Claim until NBCC is so notified and if City fails to cooperate in the defense of a Claim
NBCC shall not be responsible to defend, indemnify, and hold harmless City during the period
that City so fails to cooperate or for any losses attributable thereto. City shall be entitled to
retain separate counsel to represent City against the Claim and the City's defense costs for its
separate counsel shall be included in NBCC's indemnity obligation, provided that such counsel
AI 1- 00526 -NBCC/ Otc Inrl Day Clubs 01.13.12 Final 16
57
shall reasonably cooperate with NBCC in an effort to minimize the total litigation expenses
incurred by NBCC. In the event either City or NBCC recovers any attorney's fees, expert
witness fees, costs, interest, or other amounts from the party or parties asserting the Claim,
NBCC shall be entitled to retain the same (provided it has fully performed its indemnity
obligations hereunder). The indemnity provisions in this Section 10.2 shall commence on the
Agreement Date, regardless of whether the Effective Date occurs, and shall survive the
Termination Date.
10.3 Environmental Indemnity.
In addition to its indemnity obligations set forth in Section 10.1, from and after the
Agreement Date NBCC shall indenmity, defend, and hold harmless City and City's Affiliated
Parties from and against any and all Claims for personal injury or death, property damage,
economic loss, statutory penalties or fines, and damages of any kind or nature whatsoever,
including without limitation attorney's fees, expert witness fees, and costs, based upon or arising
from any of the following: (i) the actual or alleged presence of any Hazardous Substance oil or
under any of the Property in violation of any applicable Enviromrrental Law; (ii) the actual or
alleged migration of any Hazardous Substance from the Property through the soils or
groundwater to a location or locations off of the Property; and (iii) the storage, handling,
transport, or disposal of any Hazardous Substance on, to, or from the Property and any other area
disturbed, graded, or developed by NBCC in connection with NBCC's Development of the
Project. The indemnity provisions in this Section 10.3 shall commence on the Agreement Date,
regardless of whether the Effective Date occurs, and shall survive the Termination Date.
11. Assignment.
NBCC shall have the right to sell, transfer, or assign (hereinafter, collectively, a
"Transfer ") NBCC's fee title to the Property, in whole or in part, to any person, partnership, joint
venture, firm, or corporation (which successor, as of the effective date of the Transfer, shall
become the "NBCC" under this Agreement) at any time from the Agreement Date until the
Termination Date; provided, however, that no such Transfer shall violate the provisions of the
Subdivision Map Act (Government Code Section 66410 et sea.) or City's local subdivision
ordinance and any such Transfer shall include the assignment and assumption of NBCC's rights,
duties, and obligations set forth in or arising under this Agreement as to the Property or the
portion thereof so Transferred and shall be made in strict compliance with the following
conditions precedent: (i) no transfer or assignment of any of NBCC's rights or interest under this
Agreement shall be made unless made together with the Transfer of all or a part of the Lease
Property; and (ii) prior to the effective date of any proposed Transfer, NBCC (as transferor) shall
notify City, in writing, of such proposed Transfer and deliver to City a written assignment and
assumption, executed in recordable form by the transferring and successor NBCC and in a form
subject to the reasonable approval of the City Attorney of City (or designee), pursuant to which
the NBCC assigns to the successor and the successor assumes from the transferring NBCC all
of the rights and obligations of the transferring NBCC with respect to the Property or portion
thereof to be so Transferred, including in the case of a partial Transfer the obligation to perform
such obligations that must be performed off of the portion of the Property so Transferred that are
a condition precedent to the successor's right to develop the portion of the Property so
Transferred.
All- 00526- NBCC /Inc lnl'I Bay .Clubs 01.13.12 Final' 17
152
Notwithstanding any Transfer, the NBCC shall continue to be jointly and severally liable
to City, together with the successor to NBCC, to perform all of the transferred obligations set
forth in or arising under this Agreement unless the NBCC is given a release in writing by City.
City shall provide such a release upon the transferring NBCC's full satisfaction of all of the
following conditions: (i) the NBCC no longer has a legal or equitable interest in the portion of
the Property so Transferred other than as a beneficiary under a deed of trust; (ii) the transferring
NBCC is not then in Default under this Agreement and no condition exists that with the passage
of time or the giving of notice, or both, would constitute a Default hereunder; (iii) the
transferring NBCC has provided City with the notice and the fiilly executed written and
recordable assiglunent and assumption agreement required as set forth in the first paragraph of
this Section 11; and (iv) the successor NBCC either (A) provides City with substitute security
equivalent to any security previously provided by the transferring NBCC to City to secure
performance of the successor NBCC's obligations hereunder with respect to the Property or the
portion of the Property so Transferred or (B) if the transferred obligation in question is not a
secured obligation, the successor either provides security reasonably satisfactory to City or
otherwise demonstrates to City's reasonable satisfaction that the successor has the financial
resources or commitments available to perform the transferred obligation at the time and in the
manner required under this Agreement and the Development Regulations for the Project.
12. Mortgagee Rights.
12.1 Encumbrances on Property.
The Parties agree that this Agreement shall not prevent or limit NBCC in any manner
from encumbering the Property, any part of the Property, or any improvements on the Property
with any Mortgage securing financing with respect to the construction, development, use, or
operation of the Project.
12.2 Mortgagee Protection.
This Agreement shall be superior and senior to the lien of any Mortgage. Nevertheless,
no breach of this Agreement shall defeat, render invalid, diminish, or impair the lien of any
Mortgage made in good faith and for value. Any acquisition or acceptance of title or any light or
interest in the Property or part of the Property by a Mortgagee (whether due to foreclosure,
trustee's sale, deed in lieu of foreclosure, lease termination, or otherwise) shall be subject to all
of the terms and conditions of this Agreement. Any Mortgagee who takes title to the Property or
any part of the Property shall be entitled to the benefits arising wider this Agreement.
12.3 Mortgagee Not Obligated.
Notwithstanding the provisions of this Section 12.3, a Mortgagee will not have any
obligation or duty under the terms of this Agreement to perform the obligations of NBCC or
other affirmative covenants of NBCC, or to guarantee this performance except that: (i) the
Mortgagee shall have no right to develop the Project under the Development Regulations without
fully complying with the terms of this Agreement; and (ii) to the extent that any covenant to be
performed by NBCC is a condition to the performance of a covenant by City, that performance
shall continue to be a condition precedent to City's performance.
A I 1- 00526 -NBCC/ Inc Im'l Day Clubs 01.13.12 Final 18
15
12.4 Notice of Default to Mortgagee; Right of Mortgagee to Cure.
Each Mortgagee shall, upon written request to City, be entitled to receive written notice
from City of: (i) the results of the periodic review of compliance specified in Article 7 of this
Agreement, and (ii) any default by NBCC of its obligations set forth in this Agreement.
Each Mortgagee shall have a further right, but not an obligation, to cure the Default
within ten (10) days after receiving a Notice of Default with respect to a monetary Default and
within thirty (30) days after receiving a Notice of Default with respect to a non - monetary
Default. If the Mortgagee can only remedy or cur a non- monetary Default by obtaining
possession of the Properly, then the Mortgagee shall have the right to seek to obtain possession
with diligence and continuity through a receiver or otherwise, and to remedy or cure the non -
monetary Default within thirty (30) days after obtaining possession and, except in case of
emergency or to protect the public health or safety, City may not exercise any of its judicial
remedies set forth in this Agreement to terminate or substantially alter the rights of the
Mortgagee until expiration of the thirty (30) -day period. In the case of a non- monetary Default
that cannot with diligence be remedied or cured within thirty (30) days, the Mortgagee shall have
additional time as is reasonably necessary to remedy or cure the Default, provided the Mortgagee
promptly commences to cure the non - monetary Default within thirty (30) days and diligently
prosecutes the cure to completion.
13. Miscellaneous Terms.
13.1 Notices.
Any notice or demand that shall be required or permitted by law or any provision of this
Agreement shall be in writing. If the notice or demand will be served upon a Party, it either shall
be personally delivered to the Party; deposited in the United States mail, certified, return receipt
requested, and postage prepaid; or delivered by a reliable courier service that provides a receipt
showing date and time of delivery with courier charges prepaid. The notice or demand shall be
addressed as follows:
TO' CITY: City of Newport Beach
3300 Newport Boulevard
Post Office Box 1768
Newport Beach, California 92663 -3884
Attn: City Manager
With a copy to: City Attorney
City of Newport Beach
3300 Newport Boulevard
Post Office Box 1768
Newport Beach, California 92663 -3884
Al 1- 00526,NBCC/ hic Int'I. Bay Clubs 01.13.12 fhwl 19
M
TO NBCC: Newport Beach County Club, Inc.
1600 East Coast Highway
Newport Beach, California, 92660 Attn: Perry
Dickey, President
With a copy to: International Bay Clubs
1221 West Coast Highway
Newport Beach, California 92663
Attn: Dave Wooten, Chief Executive Officer
Either Party may change the address stated in this Section 13.1 by delivering notice to the
other Party in the manner provided in this Section 13, 1, and thereafter notices to such Party shall
be addressed and submitted to the new address. Notices delivered in accordance with this
Agreement shall be deemed to be delivered upon the earlier of: (i) the date received or (iii) three
business days after deposit in the mail as provided above.
13.2 Project as Private Undertaking
The Development of the Project is a private undertaking. Neither Party is acting as the
agent of the other in any respect, and each Party is an independent contracting entity with respect
to the terms, covenants, and conditions set forth in this Agreement, This Agreement forms no
partnership, joint venture, or other association of any kind. The only relationship between the
Parties is that of a govermnent entity regulating the Development of private property by the
owner of the property.
13.3 Cooperation.
Each Party shall cooperate with and provide reasonable assistance to the other Party to
the extent consistent with and necessary to implement this Agreement. Upon the request of a
Party at any time, the other Party shall promptly execute, with acknowledgement or affidavit if
reasonably required, and file or record the required instruments and writings and take any actions
as may be reasonably necessary to implement this Agreement or to evidence or consummate the
transactions contemplated by this Agreement.
13.4 Estoppel Certificates.
At any time, either Party may deliver written notice to the other Party requesting that that
Party certify in writing that, to the best of its knowledge: (i) this Agreement is in full force and
effect and is binding on the Party; (ii) this Agreement has not been amended or modified either
orally or in writing or, if this Agreement has been amended, the Party providing the certification
shall identify the amendments or modifications; and (iii) the requesting Party is not in Default in
AtI- OO526- NBCC Ihiclnt'1 Bay Clubs 01.13.12Final 20
01
the performance of its obligations under this Agreement and no event or situation has occurred
that with the passage of time or the giving of Notice or both would constitute a Default or, if
such is not the case, then the other Party shall describe the nature and amount of the actual or
prospective Default.
The Party requested to furnish an estoppel certificate shall execute and return the
certificate within thirty (30) days following receipt. Requests for the City to furnish an estoppel
certificate shall include reimbursement for all administrative costs incurred by the City including
reasonable attorneys fees incurred by the City in furnishing an estoppels certificate.
13.5 Rules of Construction.
The singular includes the plural; the masculine and neuter hrclude the feminine; "shall" is
mandatory; and "may" is permissive.
13.6 Time Is of the Essence.
Time is of the essence regarding each provision of this Agreement as to which time is an
element.
13.7 Waiver.
The failure by a Party to insist upon the strict performance of any of the provisions of this
Agreement by the other Party, and failure by a Party to exercise its rights upon a Default by the
other Party, shall not constitute a waiver of that Party's right to demand strict compliance by the
other Party in the future.
13.8 Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall be
identical and may be introduced in evidence or used for any other purpose without any other
counterpart, but all of which shall together constitute one and the same agreement.
13.9 Entire Agreement.
This Agreement constitutes the entire agreement between the Parties and supersedes all
prior agreements and understandings, both written and oral, between the Parties with respect to
the subject matter addressed in this Agreement.
13.10 Severabilitv
The Parties intend that each and every obligation of the Parties is interdependent and
interrelated with the other, and if any provision of this Agreement or the application of the
provision to any Party or circumstances shall be held invalid or unenforceable to any extent, it is
the intention of the Parties that the remainder of this Agreement or the application of the
provision to persons or circumstances shall be rendered invalid or unenforceable. The Parties
intend that neither Party shall receive any of the benefits of the Agreement without the full
performance by such Party of all of its obligations provided for under this Agreement. Without
limiting the generality of the foregoing, the Parties intend that NBCC shall not receive any of the
A 11. 00526 -NBCC/ Inc Inl'I Bay Clubs 01.13.12 Final 21
02
benefits of this Agreement if any of NBCC's obligations are rendered void or unenforceable as
the result of any third party litigation, and City shall be free to exercise its legislative discretion
to amend or repeal the Development Regulations applicable to the Property and NBCC shall
cooperate as required, despite this Agreement, should third party litigation result in the
nonperformance of NBCC's obligations under this Agreement. The provisions of this Section
13.10 shall apply regardless of whether the Effective Date occurs and after the Termination Date.
13.11 Construction.
This Agreement has been drafted after negotiation and revision. Both City and NBCC
are sophisticated parties who were represented by independent counsel throughout the
negotiations or City and NBCC had the opportunity to be so represented and voluntarily chose to
not be so represented. City and NBCC each agree and acknowledge that the terms of this
Agreement are fair and reasonable, taking into account their respective purposes, terms, and
conditions. This Agreement shall therefore be construed as a whole consistent with its fair
meaning, and applicable principle or presumption of contract construction or interpretation shall
be used to construe the whole or any part of this Agreement in favor of or against either Party.
13.12 Successors and Assigns: Constructive Notice and Acceptance.
The burdens of this Agreement shall be binding upon, and the benefits of this Agreement
shall inure to, all successors in interest to the Parties to this Agreement. All provisions of this
Agreement shall be enforceable as equitable servitudes and constitute covenants running with the
land. Each covenant to do or refrain from doing some act hereunder with regard to Development
of the Property: (i) is for the benefit of and is a burden upon every portion of the Property; (ii)
runs with the Property and each portion thereof; and (iii) is binding upon each Party and each
successor in interest during its ownership of the Property or any portion thereof. Every person or
entity who now or later owns or acquires any right, title, or interest in any part of the Project or
the Property is and shall be conclusively deemed to have consented and agreed to every
provision of this Agreement. This Section 13.12 applies regardless of whether the instrument by
which such person or entity acquires the interest refers to or acknowledges this Agreement and
regardless of whether such person or entity has expressly entered into an assignment and
assumption agreement as provided for in Section 11.
13.13 No Third Party Beneficiaries.
The only Parties to this Agreement are City and NBCC. This Agreement does not
involve any third party beneficiaries, and it is not intended and shall not be construed to benefit
or be enforceable by any other person or entity.
13.14 Annlicable Law and Venue.
This Agreement shall be construed and enforced consistent with the internal laws of the
State of California, without regard to conflicts of law principles. Any action at law or in equity
arising under this Agreement or brought by any Party for the purpose of enforcing, construing, or
determining the validity of any provision of this Agreement shall be filed and tried in the
Superior Court of the County of Orange, State of California, or the United States District Court
for the Central District of California. The Parties waive all provisions of law providing for the
removal or change of venue to any other court.
AI 1 00526-NBCC/ Inc 1u19 Bay Clubs 01.13.12 Pbual 22
os
13.15 Section Headings.
All section headings and subheadings are inserted for convenience only and shall not
affect construction or interpretation of this Agreement.
13.16 Incorporation of Recitals and Exhibits,
All of the Recitals are incorporated into this Agreement by this reference. Exhibits A and
B are attached to this Agreement and incorporated by this reference as follows:
EXI41BIT
DESCRIPTION
DESIGNATION
A
Legal Description of Property
Overall Site Plan and Overall Site Plan
B1 &B2
Alternative
13.17 Recordation.
The City Clerk of City shall record this Agreement and any amendment, modification, or
cancellation of this Agreement in the Office of the County Recorder of the County of Orange
within the period required by California Government Code section 65868.5 and City of Newport
Beach Municipal Code section 15.45.090. The date of recordation of this Agreement shall not
modify or amend the Effective Date or the Termination Date.
[SIGNATURE, PAGE FOLLOWS]
A 11- 00526 -NBCC/ Inc Inl'I Bay Clubs 01:13.12.Pinal. 23
04
SIGNATURE PAGE TO
DEVELOPMENT AGREEMENT
"NBCC"
By:
Its:
By:
Its:
"CITY"
Cl
B,
Its
ATTEST:
City Clerk
A ROVED AS TO FORM:
Aaron Harp, City Attorney
Al I- 00526 -NBCC/ Inc In1'l Bay Clubs 01.13.12 Final 24
05
STATE OF CALIFORNIA
COUNTY OF ORANGE
On , before me, the undersigned, a Notary Public in and for said State,
personally appeared and , personally known
to me to be the persons whose names are subscribed to the within instrument and acknowledged
to me that they executed the same in their authorized capacities and that by their signature on the
instrument the persons, or the entity upon behalf of which the persons acted, executed the
instrument.
Witness my hand and official seal.
Notary Public in and for
said County and State
STATE OF CALIFORNIA
COUN'T'Y OF ORANGE
On , before me, the undersigned, a Notary Public in and for said State,
personally appeared and , personally known
to me to be the persons whose names are subscribed to the within instrument and acknowledged
to me that they executed the same in their authorized capacities and that by their signature on the
instrument the persons, or the entity upon behalf of which the persons acted, executed the
instrument.
Witness my hand and official seal.
Notary Public in and for
said County and State
AI 1.00526 -NBCC/ Inc Int'I Bay Clubs 01.13.12 Final -25-
00
EXHIBIT A
LEGAL DESCRIPTION Or PROPERTY
The Golf Club:
Parcel I of Parcel Map No. 79 -704, in the City of Newport Beach, County of Orange, State of
California, as per Map filed in Book 152, Pages 17 to 20, inclusive, of Parcel Maps, in the office
of the County Recorder of Orange County.
And that portion of Back Bay Drive as shown on Parcel Map No. 79 -704, as per Map filed in
Book 152, Pages 17 to 20 of Parcel Maps, that would attach by operation of the LAS to abutting
property owners by vacation recorded October 17, 1989 as Instrument No. 89- 558952 Official
Records,
Parcel 3 of Parcel Map No. 79 -704, in the City of Newport Beach, County of Orange, State of
California, as per Map filed in Book 152, Pages 17 to 20, inclusive, of Parcel Maps, in the Office
of the County Recorder of Orange County.
AIO.00773 01.13.12 Fimi 1
07
EXHIBIT B1
DEPICTION OF PROPERTY
f "[f3EY --- �- �O�IY�Gi[NW IlOC
I`` I t Yftt Inu
"'T<..w
F I I.AnIN
R. Y
.- „u4
C1, -Iti ' I'M l
NOTE
iTl� P �F, III u I !. IL ll!Wll1U H' B'IJ! ” 1�
A:WMTOGMLOM'A'AWORGW 1 " S•, I j 1 s-- '���•e
�. i lit w�
GENERAL NOTES
,.no. �.... - • srxo-aom.. uv
NEWPORT BEACH COUNTRY CLUB rills
flAV N1M/LCESS
V.SE'rcvr AdBI
u urvase.
NE4VPoflT BEACH aaw:•:w "' =maiyrn �'
_ a
Al 600526-NBCC/ Inc hdl 0ap Clubs 01.06.12 ,9 Final 1
2
OLUD
NOTE
A'PEfEiiD tl.R Da4Y:gfOl GWO19
IX141E
NEWPORT BEACH COUNTRY CLUB
14EWPORT BEACH. EuvoavA
Int'1 Bay Clubs 01.13.12 Final
EXHIBIT B2
2
PROJECT DEVELOPMENT SUM MY
GENERAL NOTES
• nvM1a. -b
_ I 5E11EEDNE RAV 1iiE1V911
f ACCE59PlEVV�I
09