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HomeMy WebLinkAbout19 - Final Tract Map No. 17386 for Mixed-Use Development Located at 3900 and 3928 East Coast HighwayP0 CITY OF i NEWPO"RT B c��,FOR�P City Council Staff Report November 22, 2016 Agenda Item No. 19 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: David A. Webb, Public Works Director - 949-644-3311, dawebb@newportbeachca.gov PREPARED BY: Rodi Almendralo, Civil Engineer ralmendralo@newportbeachca.gov PHONE: 949-644-3334 TITLE: Final Tract Map No. 17386 for Mixed -Use Development Located at 3900 and 3928 East Coast Highway ABSTRACT: Consider whether the City Council should approve Final Tract Map No. 17386 for Condominium Purposes for mixed-use development at 3900, 3928 East Coast Highway. RECOMMENDATION: a) Find this project exempt from California Environmental Quality Act (CEQA) pursuant to Section 15268, Ministerial Projects (approval of final subdivision maps), of CEQA Guidelines because it has no potential for a significant effect on the environment; b) Review and approve Final Tract Map No. 17386 located at 3900 and 3928 East Coast Highway pursuant to Section 19.60.010 of the Municipal Code; and c) Review and approve the Subdivision Agreement for Final Tract Map No. 17386 pursuant to Section 19.36.010 of the Municipal Code, and authorize the City Manager and City Clerk to execute the Subdivision Agreement. FUNDING REQUIREMENTS: There is no fiscal impact related to this item. 19-1 Final Tract Map No 17386 for Mixed -Use Development Located at 3900 and 3928 East Coast Highway November 22, 2016 Page 3 1167MI 101011 Gallo of Corona Del Mar, Inc., a California Corporation and Plaza Corona Del Mar, Inc., a California Corporation (Property Owner) are proposing a mixed-use development located at 3900 and 3928 East Coast Highway between Poppy Avenue (or Hazel Drive) and Seaward Road. The Plaza Corona Del Mar mixed-use development will consist of a 2,160 -square -foot commercial building for retail, office and restaurant purposes at 3900 East Coast Highway and a 6 -unit condominium subdivision at 3928 East Coast Highway on approximately 0.438 acres of land in the Corona del Mar Village area. Tentative Tract Map No. 17386 (NP 2012-001) for proposed development consolidates five existing lots and portions of a vacated alley into two lots and will subdivide one of the two lots into six airspace condominium units. The tentative tract map was approved by Planning Commission on January 3, 2013 (Planning Commission Resolution No. 1902, attached). The applicant has submitted Final Tract Map 17386 per Municipal Code Section 19.60.010(A) for approval in order to record the map with the County of Orange Clerk -Recorder's Office and to construct the proposed mixed-use development. In addition, Tentative Tract Map No. 17386 will vacate an existing easement for public highway slopes and drainage facilities established in 1953. The development will relocate a storm drain line from an existing catch basin on East Coast Highway. A new 10 -foot wide storm drain easement along the path of the relocated storm drain will be established by this map. Condition 74 of Planning Commission Resolution No. 1902 requires the applicant provide a construction bond/surety in a form acceptable to the City, guaranteeing completion of various required public improvements associated with the project. The applicant has provided a cash deposit in the amount consistent with the Public Works Department's approved cost estimate for the required public improvements (attached). Per Section 19.60.010 of the Municipal Code, the City Council shall review final tract maps. Final Tract Map 17386 conforms to the tentative tract map. Per Section 19.36.010 of the Municipal Code, the City Council shall review the Subdivision Agreement to ensure the completion of all required public improvements as a part of this tract map. ENVIRONMENTAL REVIEW: Staff recommends the City Council find this project exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15268, Ministerial Projects (approval of final subdivision maps), of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential to have a significant effect on the environment. 19-2 Final Tract Map No 17386 for Mixed -Use Development Located at 3900 and 3928 East Coast Highway November 22, 2016 Page 3 NOTICING: The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). ATTACHMENTS: Attachment A — Location Map Attachment B — Final Tract Map No. 17386 Attachment C — Planning Commission Resolution 1902 Attachment D — Subdivision Agreement 19-3 ATTACHMENT A 19-4 ATTACHMENT B (1 OF 3) LOTS 54, 55, 56, 57 AND 58 IN BLOCK "B" OF TRACT NO. 673, "CORONADEL MAR", IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER NEAP FILED IN BOOK 20, PAGES 17 AND 18 OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, TOGETHER WITH THAT PORTION OF AN ALLEY IN BLOCK B OF TRACT 573 AS SHOWN BY MAP ON FILE IN :BOOK 20, PAGE 17 AND 18 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA AS VACATED BY RESOLUTION NO. 98-64 RECORDED SEPTEMBER 25, 1998 AS INSTRUMENT NO. 19980647352, OF OFFICIAL RECORDS WHICH WOULD PASS BY OPERATION OF LAW AND TOGETHER WITH THAT'PORTION OF AN ALLEY IN BLOCK B OF TRACT 673 AS SHOWN BY MAP ON FILE IN BOOK 26, PAGE 17 AND 18 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA AS VACATED BY RESOLUTION NO. 2012-109 RECORDED 'DECEMBER 11, 2012 AS INSTRUMENT NO, 2012000766693, OF OFFICIAL RECORDS, EXCEPTING THEREFROM THAT PORTON OF LAND CONVEYED TO THE STATE OF CALIFORNIA AS THEIR INTEREST APPEARS PER DOCUMENTS RECORDED JANUARY 13, 1925 IN BOOK 559 OF DEEDS PANE 102. EXCEPTING THEREFROM!! THAT PORTION OF LAND CONVEYED TO THE STATE OF CALIFORNIA AS THEIR INTEREST APPEARS PER DOCUMENTS RECORDED JANUARY 19, 1939 IN BOOK 978, PAGE 258, BOOK 975, PAGE 440, ROOK 975, PAGE 441 AND FEBRUARY 7, 1939 IN BOOK 977, PAGE 581, ALL OF OFFICIAL RECORDS. JRV ENGINEERING, INC. JUSTO R. IL LAR, :R.C.E. 29801 DATE OF SURVEY: FEBRUARY, 2013 WE, THE UNDERSIGNED BEING ALL PARTIES LAVING ANY RECORD TITLE INTEREST IN THE LAND COVERED BY THIS MAP, DO HEREBY CONSENT TO THE PREPARATION AND RECORDATION OF SAID MAP, AS SHOWN WITHIN THE DISTINCTIVE BORDER LINE. WE ALSO HERESY DEDICATE TO THE CITY OF NEWPORT BEACH THE EASEMENT FOR STORM DRAIN PURPOSES AS SHOWN ON SAID MAP. PLAZAOF CORONA DEL MAR, INC., A CALIFORNIA CORPORATION, FORMERLY KNOWN AS AUTO SPA OF CORONA DEL MAR INC., A CALIFORNIA CORPORATION, AS TO LOTS 55-56 PRINT NAME _.�. TITLE PRINT NAME TITLE GALLO OF CORONA DEL MAR, INC., A CALIFORNIA CORPORATION AS TO LOT 54 PRINT NAME t A m, TITLE^ PRINT NAME_ TITLE ..... A NOTARY PUBLIC OR OTHER OFFICER COMPLETING THIS CERTIFICATE VERIFIES ONLY THE IDENTITY OF THE INDIVIDUAL WHO SIGNED THE DOCUMENT TO WHICH THIS CERTIFICATE IS ATTACHED, AND NOT THE TRUTHFULNESS, ACCURACY, OR VALIDITY OF THAT DOCUMENT, STATE OF CALIFORNIA) ) SS COUNTY OF ORANGE ) ON _A ,1.,lCjl.lST_E_. BEFORE ME, :_� M...... , A NOTARY PUBLIC PERSONALLY APPEAREDHANNA WHO PROVED TO ME ON THE BASIS OF SATISFACTORY EVIDENCE TO BE THE PERSON(g) WHOSE NAME('} ISIAI SUBSCRIBED TO THE WITHIN :INSTRUMENT AND ACKNOWLEDGED TO ME THAT HE/SeEITHtY EXECUTED THE SAME IN H'IS/H R/TI-jf,IR AUTHORIZED CAPACITY (10), AND THAT BY HIS/H5P/THFIR SIGNATURES() ON THE INSTRUMENT THE PERSONA, OR THE ENTITY UPON BEHALF OF WHICH THE PERSONO ACTED, EXECUTED THE INSTRUMENT. 1 CERTIFY UNDER PENALTY OF PERJURY UNDER TIME LAWS OF THE STATE OF CALIFORNIA THAT THE FOREGOING PARAGRAPH IS TRUE AND CORRECT, WITNESS MY HADD: tA��-2-q MY PRINCIPAL PLACE OF BUSINESS IS IN ...i _COUNTY. MY COMMISSION EXPIRES: . SIGNATUREI I : .................... PURSUANT TO THE PROVISIONS OF SECTION 66436 (a)(3)(A) OF THE SUBDIVISION MAP ACT, THE FOLLOWING SIGNATURES HAVE BEEN OMITTED: 1. AN EASEMENT FOR EITHER OR BOTH DOLE LINES,:CONDUITS AND INCIDENTAL PURPOSES PER DOCUMENT RECORDED MARCH 16, 1927 IN BK. 24, PG. 304, O.R. (NOT PLOTTABLE, UNKNOWN OWNERSHIP) 2. THE IRVINE COMPANY, HOLDER OF AN EASEMENT FOR PIPELINE AND INCIDENTAL PURPOSES RECORDED IN MAY 27, 1927 IN BK, 56, PG, 65 O.R. (CENTER LINE PLOTTED) 3. THE STATE OF CALIFORNIA, HOLDER OF AN EASEMENT FOR SLOPE AND DRA NAGE PURPOSES PER DOCUMENT RECORDED APRIL 26, 1954 IN BK, 2716, PG. 46, 0, R. (PLOTTED) 4. LAGUNA BEACH COUNTY WATER DISTRICT, HOLDER OF AN EASEMENT FORPIPELINE AND INCIDENTAL PURPOSES PER DOCUMENT RECORDED NOVEMBER 5, 1954 IN 8K. 2862, PG. 218, O,R. (NOT PLOTTED) 5. CITY OF NEWPORT BEACH, HOLDER OF AN EASEMENT FOR PUBLIC UTILITIES AND ACCESS PURPOSES, PER DOCUMENT RECORDED AS INSTRUMENT N0, 199806147352, O.R. , NOT SHOWN ON THIS MAP ACCEPTED AND FILED AT THE. REQUEST OF: FIRST AMERICAN TITLE COMPANY DATE: TIME: FEE, ...................... ..... INSTRUMENT NO. BOOK PAGE HUGH NGUYEN COUNTY CLERK- RECORDER BY DEPUTY THIS MAP WAS PREPARED BY ME OR UNDER MY DIRECTION AND IS BASED UPON A FIELD SURVEY IN CONFORMANCE WITH THE REQUIREMENTS OF THE SUBDIVISION MAP ACT AND LOCAL ORDINANCE AT THE REQUEST OF :IMAGO! HANNA IN JANUARY, 2013, 1 HERESY STATE THAT ALL MONUMENTS ARE OF THE CHARACTER AND OCCUPY THE POSITIONS INDICATED, (OR THAT THEY WILL BE SET IN SUCH POSITIONS 90 DAYS AFTER ACCEPTANCE OF IMPROVEMENTS); AND THAT SAID MONUMENTS ARE SUFFICIENT TO ENABLE THE SURVEY TO BE RETRACED, I HEREBY STATE THAT THIS FINAL MAP SUBSTANTIALLY CONFORMS TO THE CONDITIONALLY APPROVED TENTATIVE MAP. JUSTO R. VILLAR DATE R.C.E. 29601 G 29801 EXPIRATION DATE: 03131117 ti 1CS,031 ,41 OF'0AVV CITY ENGINEER'S T TEN T I HEREBY STATE THAT I HAVE EXAMINED THIS MAP AND HAVE FOUND IT TO BE SUBSTANTIALLY IN CONFORMANCE WITH THE TENTATIVE MAP, IF REQUIRED, AS FILED WITH, AMENDED AND APPROVED BY THE CITY PLANNING COMMISSION; THAT ALL PROVISIONS OF THE SUBDIVISION MAP ACT AND CITY SUBDIVISION' REGULATIONS HAVE BEEN COMPLIED WITH. THIS STATEMENT WILL BECOME EFFECTIVE ON THE DATE. UPON WHICH THE COUNTY OF ORANGE APPROVES THE MAP AS TECHNICALLY CORRECT. DATED THIS ............ DAY OF 12015 MARK K. VUKOJEVIC DEPUTY PUBLIC WORKS DIRECTOR / CITY ENGINEER CITY OF NEWPORT BEACH R.C.E. 61527 LICENSE EXPIRES 6/30/2017 4= k I HEREBY STATE THAT I HAVE EXAMINED THIS MAP AND HAVE FOUND THAT ALL MAPPING PROVISIONS OF THE SUBDIVISION MAP ACT HAVE BEEN COMPLIED WITH AND I AM SATISFIED SAID MAP IS TECHNICALLY CORRECT. DATED THIS .... .... DAY OF 12015 KEVIN R. HILLS, COUNTY SURVEYOR L.S. 6617, EXPIRATION DATE: 12-31-15 BY: CRAIG S. WEHRMAN, CHIEF DEPUTY SURVEYOR. STATE OF CALIFORNIA ) COUNTY OF ORANGE )Ss CITY OF NEWPORT BEACH) PURSUANT TO SECTION 19.60,410 OF THE SUBDIVISION CODE, AND PURSUANT TO THE PROVISIONS OF SECTION 66439(a)(3)(A) OF THE SUBDIVISION MAP ACT, I HEREBY CERTIFY THAT THIS MAP WAS PRESENTED FOR APPROVAL TO THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH AT A REGULAR MEETING THEREOF HELD ON AND THAT THEREUPON SAID COUNCIL DID, BY AN ORDER DULY PASSED AND ENTERED, APPROVE SAID NEAP. AND DID ALSO ACCEPT ON 'BEHALF OF THE CITY OF NEWPORT BEACH THE STORM DRAIN EASEMENT AND APPURTENANCES AS DEDICATED. WE ALSO HEREBY ABANDON PURSUANT TO SECTION 66499,20,2 AND SECTION 66434(8) OF THE SUBDIVISION MAP ACT, THE PUBLIC EASEMENTS RECORDED AS INSTRUMENT NO. 19980547352, NOT SHOWN ON THIS MAP. AND DID ALSO APPROVE SUBJECT MAP PURSUANT TO THE PROVISIONS OF SECTION 66436 (a)(3)(A) OF THE SUBDIVISION MAP ACT. DATED THIS DAY OF DAY OF 2015 BY: LEILANI I. BROWN !DEPUTY CITY CLERK, CITY OF NEWPORT BEACH STATE OF CALIFORNIA ) ) SS COUNTY OF ORANGE ) I HEREBY CERTIFY THAT ACCORDING TO THE RECORDS OF MY OFFICE, THERE ARE NO LIENS AGAINST THE LAND COVERED BY THIS MAP OR ANY PART THEREOF FOR UNPAID STATE, COUNTY, MUNICIPAL OR LOCAL TAXES OR SPECIAL ASSESSMENTS COLLECTED AS TAXES, EXCEPT TAXES OR SPECIAL ASSESSMENTS COLLECTED AS TAXES NOT YET PAYABLE, AND DO CERTIFY TO THE RECORDER OF ORANGE COUNTY THAT THE PROVISIONS OF THE SUBDIVISION MAP ACT HAVE BEEN COMPLIED WITH REGARDING DEPOSITS TO SECURE PAYMENT OF TAXES OR SPECIAL ASSESSMENTS COLLECTED AS TAKES ON THE LAND COVERED BY THIS MAP. DATED THIS DAY OF SHARI L. FRIEDENRICH COUNTY TREASURES -TAX COLLECTOR 2015 SY: _ DEPUTY TREASURER -TAX COLLECTOR PURPOSE STATEMENT THE PURPOSE OF THIS MAP IS TO SUBDIVIDE 5 EXISTING LOTS INTO TWO NUMBERED LOTS FOR CONDOMINIUM PURPOSES. ONE LOT FOR RESIDENTIAL AND ONE LOT FOR COMMERCIAL. 19-5 SHEET 2 OF 3 SHEETS AREA: 0.438 ACRES (GROSS 8 NET) `^ ALL OF TSTRACT MAP 17385 TRACT No, 173 NUMBEREDEDLOTS: : 2 IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA FOR CONDOMINIUM PURPOSES ATTACHMENT B (2 OF 3 JRV ENGINEERING, INC. JUSTO R. VILLAR, R.C.E 29801 DATE OF SURVEY: FEBRUARY, 2013 SEE SHEET 3 FOR BOUNDARY CONTROL, MONUMENT NOTES, ENGINEER NOTES, EASEMENTS AND LOT DETAILS BASIS OF BEARINGS: THE BEARINGS SHOWN HEREON ARE BASED ON THE BEARING BETWEEN O.C.S. HORIZONTAL. CONTROL STATION GPS NO.6200R1 AND STATION GPS NO. 6199 BEING N 53° 44' 04" W, PER RECORDS ON FILE IN THE OFFICE OF THE ORANGE COUNTY SURVEYOR. GPS CONTROL SCHEME. 5 2S. .So, F 4 LOT 2 '14 p spe 0, 3� FR DATURA STATEMENT COORDINATES SHOWN ARE BASED ON THE CALIFORNIA COORDINATE SYSTEM (CCS83, ZONE VI, 1983 NAD. 2007.00 EPOCH OCS GPS ADUSTMENT) ALL DISTANCES SHOWN ARE GROUND, UNLESS OTHERWISE NOTED. TO OBTAIN GRID DISTANCE MULTIPLY GROUND DISTANCE BY 0.99996501 (MEAN VALUE OF COMBINATION FACTOR) yo Po �Q T��OO�pT°ti MH .R. iyS� q<< NOT 8 � ` S A 3p0���ORFR7NST 60 �. O SCALE: 1" = 40' 40 0 40 90 GRAPHIC SCALE 's. IRAC1 ' 14028 ±vt 31. 1.59/38-40 ALLEY VACATION PER INST. NO.19980647352, O.R. N7� q'7rZ,"7N qMp'� N yk, FO 4C W Fq°'P qy qp '' qs ST C/4. 9ry CFR R qsT ``� H `eo?B4f RFR4?posq,�A o ��\\T 0 . iyFClFTCZ3 7Q �\ <� \\ ?TFC\ �qSp `\CIV \ SEAWPA to � C-�-• m� W�f SHEET 3 OF 3 SHEETS AREA. OA38 ACRES (GROSS & NET) ALL OF TENTATIVE TRACT MAP 17386 NUMBERED LOTS; 2 SEE SHEET 2 FOR GPS CONTROL SCHEME, TIES, BASIS OF BEARINGS AND DATUM STATEMENT _L A �' i .i[ v i f ysr it N 58°38'00" W 286.07' [286.071 '4- T- 138.20' / 1 ATTACHMENT B (3 OF 3) mm �rAful NO BEARING DISTANCE N 39° 49'05" E 15.15' . 1 N 50° 19'55" W 25.00' 1" LP. WfBRASS TAG STAIIPE®"R.C.E. 298©1", OR NAIL AND................................ N 39° 40' 06" E 11.25` I�-SEE N 57-3V 26" W 16.80' 5 N 870 42'00" E 19.58' 8" SPIKE WIWASHER, STAMPED "R.C.E.29801" IN ASPHALT, N 74° 58'00" W 4.92' FM ---- —N 3° 53' 04" E 13.57 Lo N 860 33'17" W 22.40' CITY OF NEWPORT N 3° 26'43" E 30.74' N 59° 01'47" E 27.15' RECORD DATA PER TRACT NO. 14028, M.M. 659138-40 N 350 24'30" E 3,00'<2.98'> ° _Z' iN 50°19'55" W 22.96' Q n W N 58'38'00" N 50°19'55" W 15.17' r7 N 50°19'55" W 24,95' CURVE DATA NO DELTA RADIUS LENGTH T AC f 67 3 .& 90.00,00'. 6.25' 8.26' A M. .x96 � ti9 tv ch 1 I t C s i ' �o ' o� MONUMENT NOTES: ` igs f cP �'D 9 r 56 ! A, /I-, INDICATES FOUND MCiNl3IVIENT AS NOTED ALLY' 1/ACATION I�'R INET. \ o� V fr j �` y '.� F3 I�IO,19 8(I647352, C}.R. /o INDICATES SET 2" I.P. TACE, R.C.E. 29801, ATTRACT CORNER, t t °'��, t UNLESS OTHERWISE NOTED r..........i'..._�.. . 1 DETAIL "q, 1" LP. WfBRASS TAG STAIIPE®"R.C.E. 298©1", OR NAIL AND................................ N 58038'00" W 240A0' I�-SEE BRASS TAGS. STAMPED " R.C.E, 29801" IN CONCRETE, OR CIL 12' STORM DRAIN 8" SPIKE WIWASHER, STAMPED "R.C.E.29801" IN ASPHALT, EASEMENT TO THE TO BE SET AT ALL LOT CORNERS PER ENGINEER'S STATEMENT. Lo moi- ''P'b CITY OF NEWPORT 11-0 o/ BEACHDEDICATED / ( } RECORD DATA PER TRACT NO. 14028, M.M. 659138-40 L. EAST COAST HIGHWAY PER PMB 291*29»30 N5703 1'26"W ° _Z' HEREON Q n W N 58'38'00" 61.33' RECORD DATA PER RS 2003-1063, RSB 196129 > RECORD DATA PER TRACT NO.673, M.M. 20117-18 CENTERLINE QF OLL7 EAST COAST HIGHWA`�..PER� , TRACT NO. 673, M.M. 20117-18 rqa ,` SFN SEARCHED FOUND NOTHING I0' WIDE STORM DRAINEASEMENT TO CITY OF NEWPORT BEACH �` /���� INDICATES FOUND O.C.S. GPS MONUMENT AS NOTED ON SHEET � 191 = 0' J TRACT NO. 17386 LOT 1 70, Al/ O f COAST HIGHWAY DETAIL "A" ------------------------- I.T.S. ALUMINIUM WASHER, FLUSH STAMPED "CALTRANS" PER C.R. 2002-0914 ENGINEER'S NOTES: L6 T LEA© 6 TACK S & W SPIKE & WASHER <o e IN ~ D, FD. NOTHING �`� 4 EST. BY PROPORTION PER � a RSB 196129. SET S & W ,/ 1.. s e��,�� �� ee ,oma TAGGED R_C_E. 298x1, FLUSH ' ' 3 ���« ; ``v SCALE: V 40' ° 40 0 40 80 cp GRAPHIC SCALE /�1r� may"ri'ot/ t ✓j �`� tea\�t'a `�``%i �ti 4 / 78 ' LST `� °7190 SFNv 0 0.084 AC. �� ° ���a.`4�e oa,.e ee\ °/ � � /// FD. 1" 9.P. TAGGED LS 2523, PER 7. �Q °*a 3678.°988 S.F. �`�. ° tee y / RSB 196129,1-1/2" ABOVE GROUND 1 ;. ro r / IL \.� �' ' SF':N /°. ° Ni16°55`23"E, 0,4$` 7 S '44 ✓ � � O `� ° SFN 77 �e \',3••.`.D� °7a' \\ FIS. 1" I.P. TAGGED LS 4459 2" ABODE �r o/ / LOT1 7 GROUND, NO REF, ACCENTED AS THE \ 0.355 AC, t Q ear 'ag 'll /t 15475.016 Sl, // s fa `` ! INTERSECTION OF THE WESTERLY 0 SFN} /° // / BOUNDARY LINE OF TR. 14028, MW. 659/38-40 AND THE X1.7 15' • 7,, SOUTHEASTERLY PROLONGATION OF •�7'�'fiA71 THE ALLEY CENTERLINE •� \ ' °' �° 'v7`° / SFN 6 > ,/ �-� EST. BY RECORD ANGLE PER Qq e TR. 14025 M.M. 659/38-40 [t \cl / St� �./ J may© cI FN Q�,� ,y�CC�� �ti\e `\ ' .A � a / 5 f` € ALLEY VACATION PER IN ST. 9^ �D4��, `\, �� \ e ,', - 15' No. 19980647352, O,R. \� F� 7 "g`flq .e \ vo c ,'q`� I° SF 7 SEARCHED FD. NOTHING 1� ESTABLISHED BY INTERSECTION PER TRACT 673, M,ildl. 20117-18 . � ��, g S�-� .e '\ f� a• � ESTABLISHED BY THE INTERSECTION OF 2 ESTABLISHED 931' PROPORTION PER TRACT 673 M.M. 20117-18 AND �/ \ . 7 r } THE WESTERLY BOUNDARY LINE OF TR. RS 2003-1063 RSB 196129 �q\ �e`. `\ % `\e t , 14028, M,M, 659138-40 AND THE NORTHEASTERLY �� - ;f `'\ RIGHT-OF-WAY LINE OF COAST HIGHWAY. FD. CiUTSPIKE W/P.M. & S' C3) ESTABLISHED AS THE CENTER POINT OF THE N'WLY LINE OF THAT ALUMINUM WASHER, FLUSH PORTION OF THE ALLEY AS VACATED PER INST. #2012000766693 O.R. STAMPED "CALTRANS' PER C.R. 2D02-0914 °37;7q�`a� SFN i FD. L€�T TAGGED LS 4459, RSB 196129, ACCEPTED AS THE iNTERSECTION OF THE N'ELY ALLEY RIGHT-OF-WAY WITH THE S'ELY ' '\ OQr�O�'ry RIGHT-OP—WAY OF HAZEL DRIVE �?�\ � Al-�-�,0�°� 0 FD. 1" 9.P. PLUSH, NO REF. TAG WITH RCE 29801 (USI=D FOR BOUNDARY CONTROL) CALTRANS EXCEPTION PER O.R. 9771581 FD, CUTSMKE W/P.M. & "'N�l 7 CALTRANS EXCEPTION PER O.R. 978/258 0 CALTRANSEXCEPTION PER O.R. 9751440 9 CALTRANS EXCEPTION PER O,R. 9751441 EASEMENT NOTES o, ALUMINUM WASHER, FLUSH STAMPED "CALTRANS" PER C.R. 20OM435 A AN EASEMENT FOR EI'T'HER OR DOTH POLE LINES, CONDUITS AND INCIDENTAL PURPOSES, RECORDED IN ®K. 24, PG. 304 OF OFFICIAL RECORDS. (PRESENT OWNERSHIP NOT KNOWN) NOT PLO'TTA LE FROM RECORD AN EASEMENT FOR PIPELINE AND INCIDENTAL PURPOSES, IN FAVOR OF THE IRVINE COMPANY, RECORDED IN SIS. 56, PG, 65 OF OFFICIAL RECORDS (CENTERLINE OF EASEMENT PLOTTED) 1k A VARIABLE WIDTH EASEMENT FOR SLOPE AND DRAINAGE PURPOSES, IN FAVOR OF THE STATE OF CALIFORNIA RECORDED IN BK. 2716, PG. 46 OF OFFICIAL RECORDS D AN EASEMENT FOR PIPE LIME AND INCIDENTAL PURPOSES, IN FAVOR Of LAGUNA BEACH COUNTY WATER :DISTRICT RECORDED IN BK. 2862, PGe 218 OF OFFICIAL RECORDS. (NOT PLOTTA LE FROM RECORD) FD. CUTSPIKE WIP.M. & ALUMINUM WASHER, FLUSH STAMPED "CALTRANS" PER C.R. 2008-0435 19-7 ATTACHMENT C IN**]1011[9li!Iki,191 • A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH APPROVING CONDITIONAL USE PERMIT NO. UP2012-011, MODIFICATION PERMIT NO. MD2012-011, SITE DEVELOPMENT REVIEW NO. SD2012-001, TENTATIVE TRACT MAP NO. NT2012-001, AND VARIANCE NO. VA2012-002 FOR THE CONSTRUCTION OF A 2,160 -SQUARE - FOOT COMMERCIAL OFFICE ADDITION AND SIX DWELLING UNITS LOCATED AT 3900 AND 3928 EAST COAST HIGHWAY (PA2010-061) THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. An application was filed by Marcelo E. Lische, architect representing property owner, Magdi Hanna, with respect to property located at 3900 and 3928 East Coast Highway, and legally described as Lots 54, 55, 56, 57, 58, and portions of abandoned alley, Block B, Tract No. 673, requesting approval of a site development review, conditional use permit, modification permit, tentative tract map, and variance. 2. The project includes a horizontal mixed-use development with six detached dwelling units above a common subterranean parking structure, a 2,160 -square -foot office addition above an existing 535 -square -foot delicatessen (Gallo's Deli), and a 10 -space shared, ground level parking lot. The following approvals are requested or required in order to implement the project as proposed: a. A site development review to ensure compatibility with the site and surrounding land uses. b. A conditional use permit to allow parking for nonresidential uses in a residential zoning district and to allow off-site parking. c. A modification permit to allow a retaining wall up to 17 feet 2 inches in height, where the Zoning Code limits the height to 8 feet. d. A variance for the residential structures to establish a 15 -foot front setback and corresponding buildable area, where a 20 -foot setback is currently required. e. A tentative tract map for condominium purposes and to consolidate five lots and portions of a vacated alley into two lots. 3. The subject property at 3900 East Coast Highway is located within the Commercial Corridor (CC) Zoning District and the General Plan Land Use Element category is Corridor Commercial (CC). 4. The subject property at 3928 East Coast Highway is located within the Multiple -Unit Residential (RM) Zoning District and the General Plan Land Use Element category is Multiple -Unit Residential (RM). Planning Commission Resolution No. 1902 Page 2 of 32 5. The subject properties are not located within the coastal zone. 6. A public hearing was held on December 6, 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 Planning Commission at this meeting. The Planning Commission voted to continue the item to the January 3, 2013 meeting. 7. A public hearing was held on January 3, 2013, 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 Planning Commission at this meeting. SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. 1. This project has been determined to be categorically exempt under the requirements of the California Environmental Quality Act under Class 32 (Infill Development Projects). This exemption applies to in -fill development projects in urban areas that are consistent with the General Plan and applicable development standards. In addition, the proposed development must occur on a site of no more than five acres, have no value as habitat for endangered, rare or threatened species, be adequately served by all utilities and public services, and must not result in any significant effects relating to traffic, air quality, water quality, or any other significant effect on the environment due to an unusual circumstance. 2. An analysis and exemption determination was prepared for this project. CEQA Class 32 consists of projects characterized as in -fill development meeting the conditions described above. The proposed project consists of the development of new commercial office space with required off-street parking and six detached dwelling units and is consistent with the City's General Plan land use designations (Corridor Commercial and Multiple -Unit Residential) and zoning designations. Potential development of the project site was considered and analyzed in the City's 2006 General Plan EIR for potential environmental impacts. Based on that analysis, there is no reasonable probability that the proposed project will have a significant effect on the environment due to unusual circumstances, nor will the project result in any short-term or long-term impacts that were not previously considered in the Newport Beach General Plan and General Plan EIR. Implementation of the proposed project will not result in any adverse effects on sensitive biological resources, traffic, air quality, noise or water quality. The project site does not exceed five acres in area, is located in an urban area, and can be adequately served by all required utilities and public services. Therefore, the proposed project meets all of the conditions described above for in -fill development and qualifies for a Class 32 exemption. Tmplt: 0511612012 19-9 Planning Commission Resolution No. 1902 Pa4e 3 of 32 SECTION 3. REQUIRED FINDINGS. Site Development Review 1. A site development review is required for the construction of five or more residential units processed in conjunction with a tentative tract map. Also, because the proposed project is essentially a mixed-use development with horizontal inter -mixing of residential and commercial uses and a shared parking lot, the site development review analyzes the project as a whole for compatibility with the site and surrounding land uses. In accordance with Section 20.52.080 (Site Development Review) of the Zoning Code, the Planning Commission must also make the following findings for approval of a site development review: Finding: A. Allowed within the subject zoning district; Facts in Support of Finding: A-1. The zoning designation for the commercial component at 3900 East Coast Highway is Commercial Corridor (CC), which is intended to provide for areas appropriate for a range of neighborhood -serving retail and service uses along street frontages that are located and designed to foster pedestrian activity. A commercial building with retail, office, and restaurant uses are permitted for the commercial component of the proposed project at 3900 East Coast Highway. The existing food use (Gallo's Deli) was previously permitted through Specialty Food Permit No. 38 and would continue operating under said permit. A-2. The zoning designation for the residential component at 3928 East Coast Highway is Multiple -Unit Residential (RM, 8 DU), which is intended to provide for areas appropriate for multi -unit residential developments containing attached or detached dwelling units. The site is limited to a maximum of eight dwelling units. The proposed project consists of the development of six detached dwelling units, which is consistent with the zoning. designation of the site. A-3. The subject property is not part of a specific plan area. Finding- B. indin : B. In compliance with all of the applicable criteria [below]: a. Compliance with this Section, the General Plan, this Zoning Code, any applicable specific plan, and other applicable criteria and policies related to the use or structure; b. The efficient arrangement of structures on the site and the harmonious relationship of the structures to one another and to other adjacent development, and whether the relationship is based on standards of good design; Tmplt: 05/16/2012 19-10 Planning Commission Resolution No. 1902 Paae 4 of 32 c. The compatibility in terms of bulk, scale, and aesthetic treatment of structures on the site and adjacent developments and public areas; d. The adequacy, efficiency, and safety of pedestrian and vehicular access, including drive aisles, driveways, and parking and loading spaces; e. The adequacy and efficiency of landscaping and open space areas and the use of water efficient plant and irrigation materials; and f The protection of significant views from public rights) -of -way and compliance with Section 20.30. 100 (Public View Protections); and Facts in Support of Finding: Ba -1. The proposed detached residential condominiums are permitted uses within the RM General Plan land use designation and zoning district. The commercial component of the project would consist of a general office and food use, which are permitted uses within the CC General Plan land use designation and zoning district. The food use is an existing use which would continue operating under Specialty Food Permit No, 38. Ba -2 As required by the Zoning Code, a conditional use permit has been requested for the commercial off-site parking arrangement on the residential lot, a variance has been requested to establish a 15 -foot front setback for the purposes of setbacks and buildable area for the residential component, and a modification permit has been requested to allow for the proposed height of the retaining wall. Ba -3. The size, density, and character of the proposed residential dwelling units complement the existing land uses in the project area and include design elements consistent with Land Use Element Policy 5.1.9 (Character and Quality of Multi -Family Residential) that requires multi -family dwellings to be designed to convey a high quality architectural character. Consistent with this policy, the architectural treatment of the building includes high quality finishes and modulation of mass to convey the character of separate living units and avoiding the appearance of a singular building volume. The roofs have been designed with inverted sloping planes to provide visual interest. Significant private open space would also be provided in the form of large balconies, yard areas, and further complemented with additional common recreational open space area to provide a pleasant living environment with opportunities for recreation. Ba -4. The General Plan also includes Policy LU 6.20.1 that encourages neighborhood serving uses that complement existing development. Policy 6.20.3 encourages the redevelopment of residential parcels immediately adjoining commercial uses that front onto Coast Highway for surface parking. The proposed project requests a shared parking arrangement that is consistent with the policy overview for the Corona Del Mar corridor. Tmpli: 0511 WOW 19-11 Planning Commission Resolution No. 1902 Page 5 of 32 Bb -1. The residential and commercial components of the project are integrated as a unified development through the use of similar architectural style and design elements, shared use of parking, and internal pedestrian connectivity. Bb -2. The proposed office addition above the existing food use has been designed to improve the aesthetics of the site and improve the commercial presence and interface on East Coast Highway. Bb -3. Due to the approximate 17 -foot grade differential between the project site and the existing residential property to the rear at 408 Hazel Drive and 10 -foot 7 - inch separation from the commercial addition to the residential property line, the residential property will not be negatively impacted by the project and will maintain increased privacy and open space. Bb -4. Consistent with General Plan Policy LU 6.20.3 and the Policy Overview for Corona del Mar, to facilitate redevelopment of the commercial lot, parking spaces required for the office addition would primarily be accommodated on the adjacent residential lot. During the evening, the parking spaces would also provide additional parking opportunities for the residential development. This shared parking arrangement provides flexibility to accommodate the varying peak parking demands of the commercial and residential uses, efficiently utilizes the site to maximize the number of spaces that can be provided on-site, and serves as a buffer between the proposed residential units and expanded commercial building. Bb -5. The residential component of the project has been designed as six detached units above grade, minimizing the bulk and mass of the project and provides for increased open space, light, and air for each unit. Below grade, the project has been designed to efficiently accommodate private garages and guest parking within a single subterranean parking structure. Bb -6. The mechanical equipment enclosure for the commercial building has been located approximately 29 feet away from the adjacent residential lot to the rear and approximately 57 feet from the proposed residential units to the west to reduce noise impacts, and would be screened within an equipment enclosure. Bb -7. Both the commercial and residential components of the project provide separate and well-defined entries. Bc-1. The unified design theme of the commercial and residential component of the project provides for an architectural transition between the residential uses that front East Coast Highway to the east and the commercial corridor that begins to the west. Bc-2 The height and bulk of the proposed commercial building are consistent in scale with the commercial building to the west that has roof top parking. The commercial building would also be setback 10 feet 7 inches to the existing residential property line located to the rear and due to the difference in grade (approx. 17 feet), the visual bulk of the building would be minimized when viewed from above. Tmplt: 05/1612012 19-12 Planning Commission Resolution No. 1902 Page 6 of 32 Bc-3. The proposed commercial building fronts East Coast Highway, thereby implementing the General Plan policies to foster pedestrian activity with the Corona del Mar commercial corridor. Bc-4. The front facade of the commercial building includes both vertical and horizontal off -sets and utilizes a variation of building materials to provide enhanced visual relief. Bc-5. The proposed residential units have been designed with horizontal off -sets and variation in roof heights to provide visual interest. In addition, the massing of the units is broken up by the varying building separation. Bc-6. The height, bulk, and scale of the residential units are consistent with the adjacent residential condominium complex to the east. Bc-7. The shared ground level parking lot provides a buffer between the proposed commercial and residential uses and is designed to maintain privacy for the residential tenants and protection from vehicular impacts. Bd-1. The project would consolidate the three existing driveways along East Coast Highway into two driveways, thereby reducing potential conflicts and increasing vehicular safety. Bd-2. The consolidation of driveways also increases the number of on -street parking spaces along the project frontage from two spaces to a total of five spaces (three new spaces). Bd-3. The residential component includes separate and independent access via the easterly driveway into a subterranean parking structure. Furthermore, each residential unit would be afforded a private enclosed garage with direct interior access to their units. Bd-4. The project results in a total peak parking requirement of 24 ground level spaces (nine spaces for the commercial office floor area, 12 residential parking spaces, and three residential guest parking spaces), which can be provided entirely on-site within the 14 -space subterranean parking lot and the 10 -space ground level parking lot. Bd-5. The existing specialty food use was approved under Specialty Food Permit No. 38 without any required parking and will continue to operate as a vested land use right. Bd-6 The 10 -space ground level parking lot would be accessed via the westerly driveway and would accommodate parking for the commercial uses and guests of the residential units. The shared parking arrangement allows for flexibility for use of the parking spaces during the varying peak parking demands of the commercial and residential uses. Tmpll: 05/16/2012 19-13 Planning Commission Resolution No. 1902 Paae 7 of 32 Bd-7. The proposed ground level parking lot has been designed to accommodate and provide safe access for emergency, delivery., and refuse collections vehicles, as determined by the City Traffic Engineer. Bd-8. The project provides adequate sight distance at each driveway, as determined by the City Traffic Engineer. Bd-9. The project would include enhanced pedestrian walkways that provide access between the various uses and within the project site, and to the surrounding public sidewalks and uses. Be -1. The residential component includes the enhanced use of landscaping, including a variation of ornamental groundcover, vines, shrubs, and trees, to help soften and buffer the massing of the condominium units from the commercial uses to the west, residential uses to east, and from East Coast Highway. Be -2. The shared parking lot complies with the landscape parking lot requirements of Newport Beach Municipal Code (NBMC) Sec. 20.40.070.D.3 (Landscaping) and includes adequate and effective use of ground cover, hedges, and shade trees. The parking lot is also screened from East Coast Highway by a 5 -foot -wide planter. Be -3. A six -foot -high block wall and row of columnar trees would be provided between the residential units and the shared parking to provide a screening buffer. Be -4. The project is subject to the City's Water Efficient Landscape Ordinance (Chapter 14.17 of NBMC). Be -5. The relocated outdoor dining area of the existing food use will be better defined for compliance with the condition of Specialty Food Permit No. 38 through the use of planter boxes, which will also improve the appearance of the site. Be -6. The proposed residential development includes a large common outdoor living area of 533 square feet that includes a spa and barbeque area. In addition, each unit is afforded private outdoor living space in the form of large balconies and/or private yard areas. Bf-1. The portion of East Coast Highway, on which the project is located, is not a designated coastal view road and is not considered a public view corridor. Finding: C. The proposed development is not detrimental to the harmonious and orderly growth of the City, or endanger jeopardize, or otherwise constitute a hazard to the public convenience, health, interest, safety, or general welfare of persons residing or working in .the neighborhood of the proposed development. Tmplt: 05/16/2012 19-14 Planning Commission Resolution No. 1902 Page 8 of 32 Facts in Support of Finding: C-1. The project has been conditioned to ensure that potential conflicts with surrounding land uses are minimized to the extent possible to maintain a healthy environment for both businesses and residents. C-2. The project's trash enclosure would be shared between the residential and commercial component, and would be located at the rear of the commercial lot. The size, design, location, and screening of the refuse enclosure comply with the requirements of NBMC Sec. 20.30.120 ensuring compatibility with the on- site and adjacent uses. Adequate access to refuse containers would be provided through the shared parking lot and noise and visual impacts to the adjacent residential use to the rear would be minimized due to the retaining wall, differences in grade, and landscaping. C-3. The project is subject to the City's Outdoor Lighting requirements contained with Section 20.30.070 of the Zoning Code. C-4. The relocated 125 -square -foot outdoor dining area of the existing food use would be covered by the office addition above and would be screened and noise attenuated from the existing adjacent residential use to the rear due to the difference in grade. C-5. The specialty food use and the proposed general office would not maintain late hours as defined by the Zoning Code to be later than 11:00 p.m. C-6. Roof -top mechanical equipment would be fully enclosed within an equipment screen and would not be visible from the residences above. The rooftop mechanical equipment enclosure has been located at the center of the commercial building to minimize the bulk of the building as viewed from East Coast Highway. C-7. Tenant improvements to the new commercial component of the development will comply with all Building, Public Works, and Fire Codes. All ordinances of the City and all conditions of approval will be complied with. Conditional Use Permit —General Findings 2. A conditional use permit is requested to allow off-site parking for the commercial development at 3900 East Coast Highway to be located on the adjacent residential property at 3928 East Coast Highway. In accordance with Section 20.52.020.E (Findings and Decision) of the Newport Beach Municipal Code, the following findings and facts in support of the findings for a conditional use permit are set forth: Tmplt: 05116!2012 19-15 Planning Commission Resolution No. 1902 Page 9 of 32 Finding A. The use is consistent~ with the General Plan and any applicable specific plan: Facts in Support of Finding A-1. The proposed detached residential condominiums are consistent with the RM General Plan Land Use Element designation. A-2. The proposed general office and food uses within the commercial component are consistent with the CC General Plan land use designation. A-3. Land Use Policy LU6.20.3 (Expanded Parking) for Corona Del Mar seeks to accommodate the redevelopment of residential parcels immediately adjoining commercial uses that front onto Coast Highway for ground level parking, provided that adequate buffers are incorporated to prevent impacts on adjoining residential uses. The proposed project requests a shared parking orientation that is consistent with the policy overview for the Corona Del Mar corridor. Adequate walls and landscape buffers will be provided to clearly delineate the change of uses along the Coast Highway frontage. A-4. The subject properties are not part of a specific plan area. Finding B. The use is allowed within the applicable zoning district and complies with all other applicable provisions of this Zoning Code and the Municipal Code.- Facts ode: Facts in Support of Finding B-1. The proposed detached residential condominiums are permitted uses within the RM zoning district. B-2. The proposed general office and food uses within the commercial component are consistent with the CC zoning district. B-3. The required number of parking spaces to accommodate the new commercial development will be provided in a shared parking situation across the commercial property and the adjacent residential property at 3928 East Coast Highway. The proposed parking lot complies with the requirements as provided in Section 20.40.080 (Parking for Nonresidential Uses in Residential Zoning Districts), which requires the. parking area to be designed to be compatible with and to not fragment the adjacent neighborhood, located within a reasonable walking distance to the use it is intended to serve, and to not be detrimental or injurious to property and improvements in the neighborhood. Finding C. The design, location, size, and operating characteristics of the use are compatible. with the allowed uses in the vicinity; Tmplt: 05116/2012 19-16 Planning Commission Resolution No. 1902 Page 10 of 32 Facts in Support of Finding C-1. All of the required parking for the additional commercial development would be provided within close proximity and in an accessible manner for patrons at 3900 East Coast Highway. C-3. The shared parking lot is primarily intended to serve the parking demands of the proposed commercial office floor area; however, parking will be unrestricted in the evenings so as to allow for additional parking opportunities for the residential component. C-4. The residential users will have direct access to the commercial site and parking lot through a secured gate, but would be adequately buffered from the parking lot activity by solid 6 -foot -high block walls, landscaping buffers, and minimal windows designed facing the parking lot. C-5. The project has been reviewed and found to be compliant with the parking area requirements and landscaping standards as provided in Section 20.40.070 (Development Standards for Parking Areas) and the outdoor lighting standards in Section 20.30.070 (Outdoor Lighting). Finding D. The site is physically suitable in terms of design, location, shape, size, operating characteristics, and the provision of public and emergency vehicle (e.g., fire and medical) access and public services and utilities.- Facts tilities. Facts in Support of Finding D-1. The proposed parking lot provides adequate vehicle circulation and parking spaces for patrons. D-2. Adequate public and emergency vehicle access, public services, and utilities are provided. D-3. The development of the project site will comply with all Building, Public Works, and Fire Codes. All ordinances of the City and all conditions of approval will be complied with. Finding E. Operation of the use at the location proposed would not be detrimental to the harmonious and orderly growth of the City, or endanger, jeopardize, or otherwise constitute a hazard to the public convenience, health, interest, a safety, or general welfare of persons residing or working in the neighborhood of the proposed use. Tmplt: 0511.6!2012 19-17 Planning Commission Resolution No. 1902 Paae 11 of 32 Facts in Support of Finding E-1. The project has been reviewed and includes conditions of approval to ensure that potential conflicts with the surrounding land uses are minimized to the greatest extent possible. E-2. The proposed commercial and residential development will serve the surrounding residential and retail community. This will revitalize the project site and provide an economic opportunity for the property owner to improve the visual character of East Coast Highway, a major thoroughfare through Corona Del Mar, Conditional Use Permit- Additional Findings for Off -Site Parking 3. Pursuant to Section 20.40.100 of the Zoning Code, off-street parking on a separate lot from the project site also requires the approval of a conditional use permit. In addition to the standard conditional use permit findings, approval of off-site parking is subject to specific findings. The following findings and facts in support of such findings are set forth: Finding A. The parking facility is located within a convenient distance to the use it is intended to serve. Facts in Support of Finding A-1. The off-site parking lot, located immediately adjacent to the subject property, is essentially on-site. Finding B On -street parking is not being counted towards meeting parking requirements. Facts in Support of Finding B-1. The nine parking spaces required to accommodate the additional commercial development are provided entirely within the parking lot. B-2. The enhancement of public improvements and parking are identified as an opportunity for change within Land Use Policy LU3.3 of the General Plan. The proposed project would close an existing driveway on 3928 East Coast Highway and provide additional on -street parking available to the public. Finding C Use of the parking facility will not create undue traffic hazards or impacts in the surrounding area. Tmplt: 0,5116/2012 19-18 Planning Commission Resolution No. 1902 Page 12 of 32 Facts in Support of Finding C-1. The Traffic Engineer has reviewed and approved the configuration of the new parking lot extension and proposed changes to the existing parking lot, and has determined that the parking lot design will not create an undue traffic hazard in the surrounding area. C-2. The design consolidates three driveways into two driveways, thereby reducing potential conflicts and increasing vehicular safety along East Coast Highway. Finding D The parking facility will be permanently available, marked, and maintained for the use it is intended to serve. Facts in Support of Finding D1. Both of the commercial and residential components of the project site are currently owned in common across six legal lots. The proposed tract map would result in two new lots with commercial development on one and the six -unit residential condominiums on the second. As a condition of approval, the homeowner's association for the condominium development and the property owner of the commercial property will be required to enter into a reciprocal parking agreement for the joint use of the 10 -space ground level parking lot; therefore, the parking facility will remain available, marked, and maintained. as intended. Modification Permit 4. A modification permit is requested to allow construction of a retaining wall at a maximum height of 17 feet 2 inches from the finished grade that is located at the northwesterly corner of the lot located at 3900 East Coast Highway, where the Zoning Code limits the height to 8 feet maximum. An increase in height of a retaining wall may be requested per Section 20.30.040 (Fences, Hedges, Walls, and Retaining Walls) of the Zoning Code. In accordance with Section 20.52.050 (Modification Permits), the Planning Commission must also make the following findings for approval of a modification permit: Finding: A. The requested modification will be compatible with existing development in the neighborhood. Facts in Support of Finding: A-1. The view of the new retaining wall from East Coast Highway will be partially shielded by the second floor of the proposed commercial development. Tmplt: 05/16/2012 19-19 Planning Commission Resolution No. 1902 Page 13 of 32 A-2. To minimize the massing and visual impact of the wall to the on-site users, a planter wall and trash enclosure is proposed to be located in front of the retaining wall and to improve its overall aesthetics. Finding: B. The granting of the modification is necessary due to the unique physical characteristic(s) of the property and/or structure, and/or characteristics of the use. Facts in Support of Finding: B-1. The proposed commercial lot is constrained due to size and the steepness of the slope at northwesterly corner of the lot. B-2. The commercial lot is currently developed with a food use and the proposed development includes additional commercial office construction that would maximize the development potential identified by the General Plan floor area limit (0.75 FAR). The proposed retaining wall would accommodate the proposed development and make sufficient useable area available to provide required on- site parking for the new commercial office development. Finding: C. The granting of the modification is necessary due to practical difficulties associated with the property and that the strict application of the Zoning Code results in physical hardships that are inconsistent with the purpose and intent of the Zoning Code. Facts in Support of Finding: C-1. Zoning Code regulations allow retaining walls at a maximum height of 8 feet with a minimum separation requirement of 6 feet between walls. Due to the topography of the project site, the construction of two terraced retaining walls that comply with this standard would result in a significant loss of site area necessary to provide on-site parking, vehicular circulation, and a trash enclosure for the new commercial development Finding: D. There are no alternatives to the Modification Permit that could provide similar benefits to the applicant with less potential detriment to surrounding owners and occupants, the neighborhood, or to the general public. Facts in Support of Finding_. D-1. Without this approval, the applicant would be required to construct a series of 8 - foot retaining walls with a 6 -foot separation between walls. This would result in a significant loss of project site area that is necessary to provide required on- site parking for the proposed use. Tm pl t: 0511 &12012 19-20 Planning Commission Resolution No. 1902 Page 14 of 32 D-2. A terraced design that provides the required separation would not be less detrimental to existing residential property located to the rear at 408 Hazel Drive because they would not be able to see the face of the retaining wall from their vantage point due to the grade differential. Also, since the retaining wall is partially screened as viewed from East Coast Highway, the terraced design would not be readily visible from the public. D-3. The location of the retaining wall, at the rear of the subject property is appropriate given the proposed retaining wall would be adequately screened from the adjacent right-of-way. The retaining wall will provide a planter wall and trash enclosure in front of it to provide variation and articulation to improve the visual aesthetic of the retaining wall, consistent with the intent of the wall separation requirement. Finding: E. The granting of the modification would not be detrimental to public health, safety, or welfare to the occupants of the property, nearby properties, the neighborhood, or the City, or result in a change in density or intensity that would be inconsistent with the provisions of this Zoning Code. Facts in Support of Finding_ E-1. The proposed retaining wall would provide a wrought iron guardrail for safety on the higher side of the property on the adjacent commercial and residential properties. E-2. The highest point of the retaining wall is near the northwest corner of the lot and is screened by the proposed commercial building as viewed from Coast Highway. Also, the retaining wall drops approximately 8 feet over a distance of 16 feet 6 inches, minimizing the height of the wall as the existing grade drops so that the visual impact of the wall is reduced. E-3. The design of the development will not conflict with any easements acquired by the public at large for access through or use of property within the proposed development. The portion of the property at 3900 East Coast Highway where the retaining wall is proposed was previously an alley that has recently been vacated by the City and granted to the property owner of 3900 East Coast Highway. Variance 5. A variance for the residential structures to establish a 15 -foot front setback and corresponding buildable area where a 20 -foot setback is required. In accordance with Section 20,52.090.F (Findings and Decision) of the Newport Beach Municipal Code, the following findings and facts in support of a variance are set forth: Tmplt: 05116/2012 19-21 Planning Commission Resolution No. 1902 Page 15 of 32 Finding: A. That there are special or unique circumstances or conditions applicable to the subject property (e.g. location, shape, size, surrounding, topography, or other physical features) that do not apply generally to other properties in the vicinity under an identical zoning classification. Facts in Support of Finding: A-1. The subject property is a wide (approx. 165 feet), but shallow lot (approx. 91 feet). The shallowness of the lot creates a design constraint for developing the site to its maximum allowed density of eight dwelling units, while still providing for required parking, vehicular circulation, open space, and the required setbacks. Due to these constraints, the applicant is only proposing to develop a total of six dwelling units but is requesting the ability to encroach 5 feet into the front 20 -foot setback, similar to other developed RM lots in the vicinity. A-2. A 20 -foot setback, corresponding buildable area, and resulting floor area limit are not appropriate for this property based on a review of the development pattern of adjacent multi -unit residential developments east of the project site that also front onto East Coast Highway. Finding: B. That strict compliance with Zoning Code requirements would deprive the subject property of privileges enjoyed by other properties in the vicinity and under an identical zoning classification. Facts in Support of Findinq: B-1. Immediately to the east of the subject property is a large 18 -unit residential condominium complex (401 Seaward Rd.) that maintains a 15 -foot front setback adjacent to East Coast Highway and to Seaward Road. This property is located on a one acre lot and is permitted a much larger floor area limit of 1.75 (instead of 1.5). B-2. Further east are several RM -6000 zoned lots (4104-4348 Shorecrest Ln.) that also maintain 15 -foot front setbacks adjacent to East Coast Highway. These lots are not subject to a floor area limit ratio, but rather are limited to a 6.0 percent maximum lot coverage requirement. B-3. The setbacks and allowed floor area for nearby multi -unit developments are more permissive than what the subject property is limited to. Therefore, strict compliance with the 20 -foot front setback and resulting floor area limit would deprive the subject property of privileges enjoyed by nearby RM lots. B-4. Granting of the variance would allow the applicant to develop a multi -unit residential development utilizing similar setbacks and to a more reasonable floor area limit consistent with other multi -unit residential developments in the area. Tmplt: 05/16/2012 19-22 Planning Commission Resolution No. 1902 Page 16 of 32 Findincy C. That the granting of the Variance is necessary for the preservation and enjoyment of substantial property rights of the applicant. Facts in Support of Finding: C-1. The 18 -unit condominium complex to the east is located on a larger one acre lot and is permitted a larger floor area limit of 1.75 times the buildable area (instead of 1.5). If the subject property were allowed a similar 1.75 floor area limit, the floor area limit would be 14,719 square feet, which is larger than the 13,703 square feet proposed. Also, the RM -6000 zoned lots further east are not subject to a floor area limit ratio, but rather are regulated by a 60 percent maximum lot coverage requirement. For comparison, the proposed lot coverage of the residential development is only 38 percent. In both these examples of nearby RM lots, the setbacks, buildable area, and total allowed floor areas are more permissive than what the subject property is limited to. Therefore, strict compliance with the 20 -foot front setback, buildable area, and resulting floor area limit would deprive the subject property of privileges enjoyed by nearby RM lots. Finding: D. That the granting of the Variance will not constitute a grant of special privilege inconsistent with the limitations on other properties in the vicinity and in the same zoning district. Facts in Support of Finding: D-1. The size of the proposed residential development would be in scale with nearby multi -unit residential developments located on East Coast Highway and Shorecrest Lane. D-2. The granting of the Variance would not constitute a special privilege inconsistent with the limitations upon other properties zoned RM as it allows the property owner to maintain equity with other multiple -unit developments along East Coast Highway. Finding- E. indin : E. That the granting of the Variance will not be detrimental to the harmonious and orderly growth of the City, or endanger, jeopardize, or otherwise constitute a hazard to the public convenience, health, interest, safety, or general welfare of persons residing or working in the neighborhood. Tmpit; 05/1612012 19-23 Planning Commission Resolution No. 1902 Pape 17 of 32 Facts in Support of Finding: E-1. The 5 -foot encroachment into the 20 -foot setback would not be detrimental to the City or result in a hazard to the existing community or future residents of the project. The project would provide a 15 -foot front setback to the street, which is adequate to provide for light, air, privacy and open space, consistent with the intent of the Zoning Code. E-2. Trees and shrubs will be planted within the 15 -foot front setback to act as a buffer and soften the visual impact along the East Coast Highway frontage. E=3. The approval of this Variance is conditioned such that the applicant is required to obtain all necessary permits in accordance with the Building Code and other applicable Codes. E-4. The proposed 15 -foot setback for the residential structures would be consistent with the development pattern of the multi -unit developments to the east and compatible with the commercial lots to the west which do not have front setback requirements. E-5. 4f the 1,100 square feet of additional floor area that the applicant is requesting above the maximum floor area limit (based on a buildable area utilizing a 20 - foot setback), 1,018 square feet of that floor area is located below grade within the private garage area that is counted towards gross floor area and garage stairs. Therefore, this additional floor area is predominately below grade and does not add significant bulk or mass to the development as compared to what normally be allowed to be developed above grade using the 20 -foot setback and resulting floor area limit. Finding: F. Granting of the Variance will not be in conflict with the intent and purpose of this Section, this Zoning Code, the General Plan, or any applicable specific plan. Facts in Support of Finding: F-1. The intent of the front setback is to provide adequate separation for light, air, privacy and open space adjacent to the street. In this case, the project would provide a 15 -foot front setback to the street, which is consistent with the front setbacks of the other RM zoned lots east. Fifteen feet is adequate to provide for light, air, privacy and open space, consistent with the intent of the Zoning Code. F-2. The subject property is designated RM by the Land Use Element of the General Plan and zoned RM. Both designations are intended primarily for multi -family residential development containing attached or detached dwelling units. The subject property is entitled for the development of eight dwelling units where six are proposed. Approval of the Variance will not affect residential density. F-3. The subject property is not located within a specific plan area. Tmplt: 05/16/2012 19-24 Planning. Commission Resolution No. 1.902 Page 18 of 32 F-4. The overall design, based upon the proposed plans, meets residential design criteria provided within Section 20.48.180.B.2 (Design Criteria) by avoiding long unarticulated walls and providing architectural treatment of all elevations. Tentative Tract M 6. A tentative tract map is requested for residential condominium purposes, to create six airspace condominium units. The map would also serve to consolidate five lots and portions of a vacated alley into two lots. In accordance with Section 19.92.070 (Required Findings for Action on Tentative Maps) of the Newport Beach Municipal Code, the following findings and facts in support of a tentative tract map are set forth: Finding: A. That the proposed map and the design or improvements of the subdivision are consistent with General Plan and any applicable specific plan, and with the applicable provisions of the Subdivision Map Act and the City Subdivision Code. Facts in Support of Finding: A-1. The project is consistent with the Commercial Corridor and Multiple Unit Residential General Plan designations of the project site. A-2. The Public Works Department has reviewed the proposed tentative map and found it consistent with the Newport Beach Subdivision Code (Title 19) and applicable requirements of the Subdivision Map Act. A-3. Conditions of approval have been included to ensure compliance with Title 19. Finding: B. That the site is physically suitable for the type and density of development. Facts in Support of Finding: B-1. The residential portion of the project site is currently a vacant paved/gravel lot and the commercial portion of the project site is currently developed with a 535 - square -foot delicatessen. B-2. The site where construction will occur is relatively flat and based on the geologic investigation, the site is safe and suitable for development. The subject property has been placed with a significant amount of fill to provide a generally level site perched above the neighboring descending ravine. The fills encountered appear to be dense and compacted to acceptable levels. Expansive soils were encountered and the soils report recommends special attention be given to the project design and maintenance in compliance with Expansive Soil Guidelines. Tmplt: 05/16/2012 19-25 Planning Commission Resolution No. 1902 Page 19 of 32 B-3. A preliminary Acoustical Study prepared for the project estimates that future traffic noise exposure will be 72.5 dB CNEL to the nearest facades to East Coast Highway. All multi -family projects must comply with the State of California's noise standards that specify that the intrusion of noise from exterior sources (such as traffic) shall not exceed a CNEL of 45 dB within the interior of any habitable space. This is also consistent with the City's interior noise standards established in the General Plan Noise Element, including Policy N1.1, N1.2, and N1.5. The Acoustical Study concludes that with appropriate. noise control measures incorporated into the design of the proposed project (e.g., ventilation and air conditioning, weather stripping, increased sound -rated doors, windows, and wall finishes, etc.), no significant noise impacts will occur and the interior noise levels would comply with the City and State interior noise standard of 45 dB CNEL for residential units. Finding: C. That the design of the subdivision or the proposed improvements are not likely to cause substantial environmental damage nor substantially and avoidably injure fish or wildlife or their habitat. However, notwithstanding the foregoing, the decision-making body may nevertheless approve such a subdivision if an environmental impact report was prepared for the project and a finding was made pursuant to Section 21081 of the California Environmental Quality Act that specific economic, social, or other considerations make infeasible the mitigation measures or project alternatives identified in the environmental impact report. Facts in Support of Finding: C-1. The portion of the project site to be developed does not support any environmental resources as indicated in the jurisdictional delineation prepared. for the project. The project would not require discharge of fill into areas subject to Army Corp of Engineers, California Department of Fish and Game, or California Coastal Commission jurisdiction within the Buck Gully drainage. As such, there would be no significant impacts to the Buck Gully drainage associated with the project. C-2. Portions of the Buck Gully drainage are within areas that could be potentially affected by fuel modification activities, including cutting of vegetation. The jurisdictional. delineation concludes that alkali bulbrush and southern cattail are growing in the stream channel and account for minimal biomass and would not likely require removal or thinning, as they pose no fire risk or theat. As such, there would be no impacts to wetland vegetation associated with the project. Finding: D. That the design of the subdivision or the type of improvements is not likely to cause serious public health problems. Tmplf:. 05116/2012 19-26 Planning Commission Resolution No. 1902 Paae 20 of 32 Facts in Support of Finding: D-1. The project consists of six residential units and commercial development at 0.75 floor area ratio as allowed by the Zoning Code and the General Plan. D-2. No evidence is known to exist that would indicate that the planned subdivision pattern will generate any serious public health problems. D-3. All construction for the project will comply with Building, Public Works, and Fire Codes. Public improvements will be required of the developer per Section 19.28.10 of the Municipal Code and Section 66411 of the Subdivision Map Act. All ordinances of the City and all Conditions of Approval will be complied with. Finding: E. That the design of the subdivision or the type of improvements will not conflict with easements, acquired by the public at large, for access through or use of, property within the proposed subdivision. In this connection, the decision- making body may approve a map if it finds that alternate easements, for access or for use, will be provided and that these easements will be .substantially equivalent to ones previously acquired by the public. This finding shall apply only to easements of record or to easements established by judgment of a court of competent jurisdiction and no authority is hereby granted to the City Council to determine that the public at large has acquired easements for access through or use of property within a subdivision. Facts in Support of Finding: E-1. The design of the development will. not conflict with any easements acquired by the public at large for access through or use of property within the proposed development. E-2. Public improvements will be required of the applicant per the Municipal Code and the Subdivision Map Act. E-3. An existing 7.5 -foot -wide utilities easement at the rear of the two lots will be retained. An approximate 15 -foot -wide access and utilities easement located along the eastern side of the residential lot that is no longer needed would be vacated. An existing slope and drainage easement over the southeasterly corner of the residential lot would also be vacated and replaced with a new variable width storm drain easement. Southern California Edison power lines running in the rear of the property will be re-routed and placed underground. Tmplt: 0511612012 19-27 Planning Commission Resolution No. 1902 Page 21 of 32 Finding: F. That, subject to the detailed provisions of Section 66474.4 of the Subdivision Map Act, if the land is subject to a contract entered into pursuant to the California Land Conservation Act of 1965 (Williamson Act), the resulting parcels following a subdivision of the land would not be too small to sustain their agricultural use or the subdivision will result in residential development incidental to the commercial agricultural use of the land. Facts in Support of Finding: F-1. The site is not subject to a Williamson Act contract. Finding: G. That, in the case of a "land project" as defined in Section 11000.5 of the California Business and Professions Code: (a) there is an adopted specific plan for the area to be included within the land project; and (b) the decision-making body finds that the proposed land project is consistent with the specific plan for the area. Facts in Support of Finding: G-1. The subject property is not located within the boundaries of a specific plan. Finding: H. That solar access and passive heating and cooling design requirements have been satisfied in accordance with Sections 66473.1 and 66475.3 of the Subdivision Map Act. Facts in Support of Finding: H-1. Title 24 of the Uniform Building Code requires new construction to meet minimum heating and cooling efficiency standards depending on location and climate. H-2. The Newport Beach Building Division will enforce Title 24 compliance through the plan check and field inspection processes for the construction of any future proposed residences. Finding: 1. That the subdivision is consistent with Section 66412.3 of the Subdivision Map Act and Section 65584 of the California Government Code regarding the City's share of the regional housing need and that it balances the housing needs of the region against the public service needs of the City's residents and available. fiscal and environmental resources. Tmplt: 05/16/2012 19-28 Planning Commission Resolution No. 1902 Page 22 of 32 Facts in Support of Finding: 1-1. There are no existing dwelling units on the project site. Rather the proposed project includes the construction of six new condominium units to contribute to the City's share of the regional housing need. The applicant will be responsible for the payment of appropriate fair share, park, and housing in -lieu fees for the development of these new dwelling units. Finding: J. That the discharge of waste from the proposed subdivision into the existing sewer system will not result in a violation of existing requirements prescribed by the Regional Water Quality Control Board. Facts in Support of Finding: J-1. Waste discharge will be directed into the existing sewer system and will not violate Regional Water Quality Control Board (RWQCB) requirements. J-2. Sewer connections have been conditioned to be installed per City Standards, the applicable provisions of Chapter 14.24 (Sewer Connection, Permits) of the Newport Beach Municipal Code, and the latest revision of the Uniform Plumbing Code. Finding: K. For subdivisions lying partly or wholly within the Coastal Zone, that the subdivision conforms with the certified Local Coastal Program and, where applicable, with public access and recreation policies of Chapter Three of the Coastal Act. Facts in Support of Finding K-1. The project site is not located within the Coastal Zone. SECTION 4. DECISION. NOW, THEREFORE, BE IT RESOLVED: 1. The Planning Commission of the City of Newport Beach hereby approves Site Development Review No. SD2012-001, Conditional Use Permit No. UP2012-01 1, Modification Permit No. MD2012-011, Variance No. VA2012-002, and Tentative Tract Map No. NT2012-001(PA2012-061) subject to the conditions set forth in Exhibit A, which is attached hereto and incorporated by reference. 2. This Site Development Review, Conditional Use Permit, Modification Permit, and Variance actions shall become final and effective fourteen days after the adoption of this Resolution unless within such time an appeal is filed with the City Clerk in accordance with the provisions of Title 20 Planning and Zoning, of the Newport Beach Municipal Code. Tm pl l: 0511 &12012 19-29 Planning Commission Resolution No, 1902 Page 23 of 32 3. This Tentative Tract Map action shall become final and effective ten days after the adoption of this Resolution unless within such time an appeal is filed with the City Clerk in accordance with the provisions of Title 19 Subdivisions, of the Newport Beach Municipal Code. PASSED, APPROVED AND ADOPTED THIS 3 d DAY OF JANUARY, 2013. AYES: Ameri, Brown, Myers, and Toerge >•LO1*. • ABSTAIN: None ABSENT: Hillgren, Kramer, and Tucker BY: MichapJ-T)6-0ge, Chairman 3' OMNI -W-211 Fred Ameri Tmplt: 05/1612012 19-30 Planning Commission Resolution No. 1902 Page 24 of 32 EXHIBIT "A" CONDITIONS OF APPROVAL PLANNING 1. The development shall be in substantial conformance with the approved site plan, floor plans, and building elevations stamped and dated with the date of this approval. (Except as modified by applicable conditions of approval.) 2. Site Development Review No. SD2012-001, Conditional Use Permit No. UP2012-011, Modification Permit No. MD2012-011, and Variance No. VA2012-002 shall expire unless exercised within 24 months from the date of approval as specified in Section 20.91.050 of the Newport Beach Municipal Code, unless an extension is otherwise granted. 3. The project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval. 4. The applicant shall comply with all federal, state, and local laws. Material violation of any of those laws in connection with the use may be cause for revocation of Site Development Review No. SD2012-001, Conditional Use Permit No. UP2012-011, Modification Permit No. MD2012-011, and Variance No. VA2012-002. 5. Prior to the issuance of a building permit, the applicant shall pay any unpaid administrative costs associated with the processing of this application to the Planning Division. 6. Prior to the issuance of building_permits, Fair Share Traffic Fees shall be paid for the new dwelling units and commercial floor area in accordance with Chapter 15.38 of the Newport Beach Municipal Code. 7. Prior to issuance of building _permits, an in -lieu housing fee for six dwelling units (currently $20,513.00 per new additional dwelling unit) shall be paid in accordance with City Council Resolution No. 2010-44 of the Newport Beach Municipal Code. 8. Should the property be sold or otherwise come under different ownership, any future owners or assignees shall be notified of the conditions of this approval by either the current business owner, property owner, or the leasing agent. 9. This approval may be modified or revoked by the Planning Commission should they determine that the proposed uses or conditions under which it is being operated or maintained is detrimental to the public health, welfare or materially injurious to property or improvements in the vicinity or if the property is operated or maintained so as to constitute a public nuisance. 10. The existing food use shall continue operating in compliance with the conditions of approval of Specialty Food Permit No. 38. Any intensification of use shall require the application of a new conditional or minor use permit. 11. The existing power poles and overhead power lines located at the rear of the property shall be removed and the power lines shall be undergrounded. Tmplt: 05/16/2012 19-31 Planning Commission Resolution No. 1902 Page 25 of 32 12. Flat roof portions of the commercial building shall be constructed to meet "cool roofs" standards for energy efficiency; however, the color and material shall not result in glare as viewed from the residences above. No mechanical equipment shall be permitted on the roof, except within the designated mechanical well and shall not be visible from East Coast Highway or the adjacent residential properties. 13. The floor plans and building envelopes for each residential unit are approved as precise plans, unless revisions are approved by the Community Development Director. Future floor area additions to the building envelopes shall be prohibited. The proposed open patio and deck areas for each unit shall not be permitted to be enclosed and the landscape and common open space areas proposed throughout the development site shall be preserved. 14. A total of 10 parking spaces shall be provided within the ground level parking lot as illustrated on the approved plans. 15. All employees of the commercial building are required to park on site. 16. The shared 10 -space parking lot shall be used for the parking of passenger vehicles only, with the exception of temporary parking for the loading and unloading of commercial and residential delivery trucks. 17. The ground level parking lot (excluding residential Parking Space No. 5) shall be exclusively available for commercial tenants and customers between the hours of 8:00 a.m. and 6:00 p.m., daily. Parking uses shall not be restricted between the hours of 6:00 p.m. and 8:00 a.m., daily. Signage shall be provided enforcing said restrictions. 18. One van accessible guest parking space (noted as Space No. 5) shall be maintained within the shared parking lot for the exclusive use of the residential development. Signage shall be provided enforcing said restrictions. 19. Notwithstanding Condition No. 17, commercial overnight parking within the shared 10 - space parking lot shall be prohibited. Residential parking overnight is permitted. 20. The future homeowner's association for the condominium development and the property owner of the commercial property shall enter into a reciprocal parking and access agreement and parking management plan for the joint use of the 10 -space ground level parking lot ensuring the permanently availability of parking. The agreement, approved as to form by the City Attorney's Office, shall be recorded prior to the issuance of building permits. 21. No signs, other than signs designating entrances, exits, and conditions of use shall be maintained in the shared parking lot. Signs shall not exceed four square feet in area and 5 feet in height. The number and location shall be approved by the Community Development Director before installation. 22. Prior to the issuance of building permits, documents/plans shall be submitted demonstrating compliance with the requirements of Chapter 14.17 (Water -Efficient Landscaping Ordinance) of the Municipal Code. Tmplt: 05/1612M 19-32 Planning Commission Resolution No. 1902 Paae 26 of 32 23. All landscape materials and irrigation systems shall be maintained in accordance with the approved landscape plan. All landscaped areas shall be maintained in a healthy and growing condition and shall receive regular pruning, fertilizing, mowing and trimming. All landscaped areas shall be kept free of weeds and debris. All irrigation systems shall be kept operable, including adjustments, replacements, repairs, and cleaning as part of regular maintenance. 24. Prior to the issuance of a building permits, the applicant shall submit a landscape and irrigation plan prepared by a licensed landscape architect. These plans shall incorporate drought tolerant plantings and water efficient irrigation practices, and the plans shall be approved by the Planning Division and the Municipal Operations Department. All planting areas shall be provided with a permanent underground automatic sprinkler irrigation system of a design suitable for the type and arrangement of the plant materials selected. The irrigation system shall be adjustable based upon either a signal from a satellite or an on-site moisture -sensor. Planting areas adjacent to vehicular activity shall be protected by a continuous concrete curb or similar permanent barrier. Landscaping shall be located so as not to impede vehicular sight distance to the satisfaction of the Traffic Engineer. 25. Prior to the final of building permits, the applicant shall schedule an inspection by the Planning Division to confirm that all landscaping was installed in accordance with the approved landscape plan 26. Water leaving the project site due to over -irrigation of landscape shall be minimized. If an incident such as this is reported, a representative from the Code and Water Quality Enforcement Division shall visit the location, investigate, inform and notice the responsible party, and, as appropriate, cite the responsible party and/or shut off the irrigation water. 27. Water should not be used to clean paved surfaces such as sidewalks, driveways, parking areas, etc. except to alleviate immediate safety or sanitation hazards 28. Prior to the issuance of building permits, the applicant shall prepare a photometric study in conjunction with a final lighting plan for approval by the Planning Division. The survey shall show that lighting values are one -foot-candle or less at all property lines. Higher lighting levels are subject to the review and approval of the Community Development Director where it can be shown to be in compliance with the purpose and intent of the Outdoor Lighting section of the Zoning Code. 29. Prior to issuance of the certificate of occupancy or final of buildinq permits,the applicant shall schedule an evening inspection by the Code and Water Quality Enforcement Division to confirm control of light and glare. 30. Separate trash and recycling dumpsters shall be provided for the residential use and the commercial use. All trash shall be stored within dumpsters for residential and commercial uses in the trash enclosure (three walls and .a self -latching gate) or otherwise screened from view of neighboring properties, except when placed for pick- up by refuse collection agencies. The trash enclosure shall have a decorative solid roof for aesthetic and screening purposes. Tmplt: 05/16/2012 19-33 Planning Commission Resolution No. 1902 Pape 27 of 32 31. Prior to the issuance of the certificate of occupancy or final of building permits of the residential units, the future homeowners association shall enter into an agreement with the property owner of the commercial property to allow the use of the trash enclosure and to establish the terms of use and refuse collection. 32. The applicant shall ensure that the trash dumpsters and/or receptacles are maintained to control odors This may include the provision of either fully self-contained dumpsters or periodic steam cleaning of the dumpsters, if deemed necessary by the Planning Division. Cleaning and maintenance of trash dumpsters shall be done in compliance with the provisions of Title 14, including all future amendments (including Water Quality related requirements). 33. Trash receptacles for patrons shall be conveniently located both inside and outside of the establishment, however, not located on or within any public property or right-of- way 34. The exterior of the businesses shall be maintained free of litter and graffiti at all times. The owner or operator shall provide for daily removal of trash, litter debris and graffiti from the premises and on all abutting sidewalks within 20 feet of the premises. 35. Deliveries and refuse collection for the facility shall be prohibited between the hours of 10:00 p.m. and 8:00 a.m., daily, unless otherwise approved by the Community Development Director, and may require an amendment to the Conditional Use Permit. 36. No outside paging system shall be utilized in conjunction with this development. 37. The operator of the commercial building shall be responsible for the control of noise generated by the subject facility including, but not limited to, noise generated by tenants, patrons, food service operations, and mechanical equipment. All noise generated by the proposed use shall comply with the provisions of Chapter 10.26 and other applicable noise control requirements of the Newport Beach Municipal Code. 38. Kitchen exhaust fans shall be installed/maintained in accordance with the Uniform Mechanical Code. Issues with regard to the control of smoke and odor shall be directed to the South Coast Air Quality Management District 39. All exits shall remain free of obstructions and available for ingress and egress at all times. 40. No building permits may be issued until the appeal period has expired, unless otherwise approved by the Planning Division. Building permits for structures located across the existing property lines shall not be issued until the tract map has been recorded. 41. A copy of these conditions of approval shall be incorporated into the Building Division and field sets of plans prior to issuance of the building permits. 42. To the fullest extent permitted by law, applicant shall indemnify, defend and hold harmless City, its City Council, its boards and commissions, officials, officers, employees, and agents from and against any and all claims, demands, obligations, damages, Tmpkt: 05/16/2012 19-34 Planning Commission Resolution No. 1902 Page 28 of 32 actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever which may arise from or in any manner relate (directly or indirectly) to City's approval of the Plaza Corona Del Mar including, but not limited to, the Conditional Use Permit No. UP2012-011, Modification Permit.No. MD2012-011, Site Development Review No. SD2012-001, Tentative Tract Map No. NT2012-001, and Variance No. VA2012-002 (PA2012-061). This indemnification shall include, but not be limited to, damages awarded against the City, if any, costs of suit, attorneys' fees, and other expenses incurred in connection with such claim, action, causes of action, suit or proceeding whether incurred by applicant, City, and/or the parties initiating or bringing such proceeding. The applicant shall indemnify the City for all of City's costs, attorneys' fees, .and damages which City incurs in enforcing the indemnification provisions set forth in this condition. The applicant shall pay to the City upon demand any amount owed to the City pursuant to the indemnification requirements prescribed in this condition. Fire Department Conditions 43. Fire.flow shall be provided in accordance with N.B.F.D. Guideline B.01 "Determination of Required Fire Flow." The fire flow will .determine the number of fire hydrants required for the project. 44. Structures shall meet the requirements of Chapter 7A of the California Building Code, as amended by the City of Newport Beach. 45. New and existing structures in the project will be required to have fire sprinklers. The sprinkler system shall be monitored by a UL certified alarm service company. 46. The end of the drive aisle of the shared parking lot shall be identified as a fire lane and marked as per N.B.F.D. Guideline C.01. 47. Trash enclosures shall be located at least 5 feet from structures, unless., fire sprinklers are provided in the trash enclosure/structure. 4.8. A fuel modification plan shall be required for all landscape and must be submitted to the Fire Department. All requirements from N.B.F.D. Guideline. G.02 "Fuel Modification Plans and Maintenance Standard" must be met. Per Guideline G.02., tree species are not allowed within 10 feet of combustible structures. Building Division Conditions 49. The applicant is required to obtain all applicable permits from the City's Building Division and Fire Department. The construction plans must comply with the most recent, City - adopted version of the California Building Code. The construction plans must meet all applicable State Disabilities Access requirements. The proposed residential dwelling units do not meet the definition of "townhouse" per CBC 202. 50. Full access compliance shall be demonstrated :and provided in accordance with the February 8, 2012, Building Division letter, CBC 11 A and CBC 11 B at the time of permit application. The floor and seating plans submitted with the Project Review plans are for reference only. Subsequent plan changes may be required due to code changes prior to Tm pl t: 05116/2012 19-35 Planning Commission Resolution No. 1902 Page 29 of 32 submittal for plan review and permitting. This project review does not constitute approval of the floor plans, parking, or other access compliance issues. 51. All sides of both the commercial and residential structures shall fully comply with the Special Fire Protection Area requirements at the time of permit submittal. These requirements may be found in CBC 7A, Newport Beach Municipal Code and related codes. 52. Prior to the issuance of building permits, a preliminary plan review meeting shall be scheduled with the Building Division. 53. The applicant shall employ the following best available control measures ("BACMs") to reduce construction -related air quality impacts: Dust Control • Water all active construction areas at least twice daily. • Cover all haul trucks or maintain at least 2 feet of freeboard. • Pave or apply water four times daily to all unpaved parking or staging areas. • Sweep or wash any site access points within two hours of any visible dirt deposits on any public roadway. • Cover or water twice daily any on-site stockpiles of debris, dirt or other dusty material. • Suspend all operations on any unpaved surface if winds exceed 25 mph. Emissions • Require 90 -day low-NOx tune-ups for off road equipment. • Limit allowable idling to five minutes for trucks and heavy equipment Off -Site Impacts • Encourage car pooling for construction workers. • Limit lane closures to off-peak travel periods. • Park construction vehicles off traveled roadways. • Wet down or cover dirt hauled off-site. • Sweep access points daily. • Encourage receipt of materials during non -peak traffic hours. • Sandbag construction sites for erosion control. Fill Placement • The number and type of equipment for dirt pushing will be limited on any day to ensure that SCAQMD significance thresholds are not exceeded. • Maintain and utilize a continuous water application system during earth placement and compaction to achieve a 10 percent soil moisture content in the top six-inch surface layer, subject to review/discretion of the geotechnical engineer. 54. Prior to issuance of grading permits, the applicant shall prepare and submit a Water Quality Management Plan (WQMP) for the proposed project, :subject to the approval of the Building Division and Code and Water Quality Enforcement Division. The WQMP shall provide appropriate Best Management Practices (BMPs) to ensure that no violations of water quality standards or waste discharge requirements occur. Tmplt: 05116/2012 19-36 Planning Commission Resolution No. 1902 Page 30 of 32 55. A list of "good house -keeping" practices will be incorporated into the long-term post - construction operation of the site to minimize the likelihood that pollutants will be used, stored or spilled on the site that could impair water quality. These may include frequent parking area vacuum truck sweeping, removal of wastes or spills, limited use of harmful fertilizers or pesticides, and the diversion of storm water away from potential sources of pollution (e.g., trash receptacles and parking structures). The Stage 2 WQMP shall list and describe all structural and non-structural BMPs. In addition, the WQMP must also identify the entity responsible for the long-term inspection, maintenance, and funding for all structural (and if applicable Treatment Control) BMPs. 56. The construction and equipment staging area shall be located in the least visually prominent area on the site, or another site approved by the Community Development Director, and shall be properly maintained and/or screened to minimize potential unsightly conditions. 57. A 6 -foot -high screen and security fence shall be placed around the construction site during construction. 58. Construction equipment and materials shall be properly stored on the site when not in use. Public Works Conditions 59. An encroachment permit is required for all work activities with the public right-of-way. 60. The parking lot layout shall comply with City Standard F#805-L-A&B and shall be approved by the Public Works Department prior to the issuance of building permits. 61. All improvements adjacent to the proposed driveway approaches shall comply with the City's sight distance requirement, City Standard 110-L. 62. In case of damage done to existing public improvements surrounding the development site by the private construction, additional reconstruction within the public right-of-way could be required at the discretion of the Public Works Inspector. 63. County Sanitation District fees shall be paid prior to the issuance of any building permits. 64. Prior to commencement of demolition and grading of the project, the applicant shall submit a construction management and delivery plan to be reviewed and approved by the Public Works Department. The plan shall include discussion of project phasing; parking arrangements for both sites during construction; anticipated haul routes and construction mitigation. Upon approval of the plan, the applicant shall be responsible for implementing and complying with the stipulations set forth in the approved plan. 65. Traffic control and truck route plans shall be reviewed and approved by the Public Works Department before their implementation. Large construction vehicles shall not be permitted to travel narrow streets as determined by the Public Works Department. Disruption caused by construction work along roadways and by movement of Tmplt: 05/16/2012 19-37 Planning Commission Resolution No. 1902 Page 31 of 32 construction vehicles shall be minimized by proper use of traffic control equipment and flagman. 66. Each unit shall have a dedicated water service installed per STD -502-L or STD -503-L, depending on the size. 67. New and existing fire services, when required by Fire Department shall be p.rotected by a City approved double check detector assembly and installed per STD -517-L. 68. New and existing commercial water meter(s) shall be protected by a City approved reduced pressure backflow assembly andinstalled per STD -520_L -A. 69. Landscaping lines shall have a dedicated meter and shall be protected by a dedicated City approved reduced pressure backflow assembly per STD -520 -L-A. 70. The proposed driveway to the underground parking garage shall have a maximum slope of 15 percent and a maximum change of grade of 11 percent per City Standard #160 -L -C. 71. Prior to the issuance of a Certificate of Occupancy for the proposed structures, all public improvements shall be constructed as required by Ordinance and these conditions of approval. Tract Map Conditions 72. A Final Tract Map shall be recorded. The Map shall be prepared on the California coordinate system (NAD83). Prior to recordation of the Map, the surveyor/engineer preparing the Map shall submit to the County Surveyor and the City of Newport Beach, a digital -graphic file of said map in a manner described in Section 7-9-330 and 7-9- 337 of the Orange County Subdivision Code and Orange County Subdivision Manual, Subarticle 18. The Map to be submitted to the City of Newport Beach shall comply with the City's CADD Standards. Scanned images will not be accepted. 73. Prior to recordation of the Final Tract Map, the surveyor/engineer preparing the map shall tie the boundary of the map into the Horizontal Control System estabiished by the County Surveyor in a manner described in Sections 7-9-330 and 7-9-337 of the Orange County Subdivision Code and Orange County Subdivision Manual, Subarticle 18. Monuments (one inch iron pipe with tag) shall be set on each corner unless otherwise approved by the Subdivision Engineer. Monuments shall be protected in place if installed prior to completion of construction project. 74. Prior to recordation of the Final Tract Map, the applicant shall provide a bond/surety in order to guarantee completion of all required public improvements. The bond/surety shall be reviewed and approved by the Public Works Department. 75. The existing concrete curb, gutter, and sidewalk along the East Coast Highway frontage shall be reconstructed, per City Standards. 76. The unused driveway approaches shall be abandoned and reconstructed with full height curb, gutter, and sidewalk per City Standard #165-L. Tmplt: 05/16/2012 19-38 Planning Commission Resolution No. 1902 Paae 32 of 32 77. Proposed driveway approaches shall be constructed per City Standard #162-L. 78. The proposed storm drain relocation shall be subject to review and approval by the Public Works Department. 79. A variable width storm drain easement measured 5 feet from the westerly side of the centerline of the proposed new storm drain location to the easterly property line shall be granted to the City. 80. New 36 -inch box street trees will be required to be planted on East Coast Highway. The designated street tree for this segment of East Coast Highway is the King Palm (Archontophoenix Cunningham). The number and location of these street trees are subject to approval by the Public Works Department and the Parks and Trees Division of the Municipal Operations Department. 81. Prior to or concurrently with the recordation of the Final Tract Map, an approximately 15 -foot -wide access and utilities easement through the site adjacent to the eastern property line of 3928 East Coast Highway shall be vacated. 82. Prior to or concurrently with the recordation of the Final Tract Map, an existing slope and drainage easement at the southeast portion of the subject property will be realigned so that it will not conflict with the location of proposed structures. 83. Applicant is responsible for all upgrades to the City's utilities as required to fulfill the project's demand; a new 8 -inch VCP sewer main shall be installed from the manhole at the Seaward Road/Coast Highway Intersection to the property's frontage. A new sewer main terminal cleanout shall be installed at the end of the new 8 -inch BCP main per STD -400-L. Each unit shall have a dedicated sewer lateral with cleanouts installed per STD -406-L. 84. Prior to the recordation of the Final Tract Map, a park dedication fee for six dwelling units (currently $26,125.00 per new additional dwelling unit) shall be paid in accordance with Chapter 19.52 of the Newport Beach Municipal Code. This fee shall be paid upon submittal of the map to the Public Works Department for plan check and deposited into the appropriate Service Area account as identified in the Recreation and Open Space Element of the General Plan. Tmplt: 05/16/2012 19-39 ATTACHMENT C SUBDIVISION AGREEMENT BY AND BETWEEN THE CITY OF NEWPORT BEACH AND GALLO OF CORONA DEL MAR, INC. AND PLAZA CORONA DEL MAR, INC. FOR TRACT NO. 17386 THIS SUBDIVISION AGREEMENT ("Agreement") is entered into this day of , 20 by and between CITY OF NEWPORT BEACH, a California municipal corporation and charter city, ("CITY"), GALLO OF CORONA DEL MAR, INC., a California corporation, and PLAZA CORONA DEL MAR, INC., a California corporation ("SUBDIVIDER"). RECITALS WHEREAS, SUBDIVIDER is the owner of a tract of land in CITY, which it is seeking to subdivide into lots and to make certain private and public improvements for the completion of a mixed-use development consisting of a commercial building and six (6) condominiums, and is about to file with CITY a map of the tract of land known as Tract No. 17386 ("Subdivision"); WHEREAS, a condition of the approval of Tract Map No. 17386 required Subdivider to provide a bond/surety prior to recordation of the Final Tract Map in order to guarantee completion of all required public improvements, including: reconstruction of a portion of East Coast Highway fronting the development including but not limited to curb, gutter, sidewalk reconstruction, driveway approach installation, pavement repair, street tree installation and landscaping, relocation of an existing storm drain, utility connections to serve the development, and to perform certain other improvements in the subdivision per City standards; and SUBDIVIDER desires to enter into an agreement with CITY to delay performance of certain portions of the work; to agree to perform this work as herein provided; and to execute and deliver to CITY bonds for the faithful performance of this Agreement, for the payment of all labor and material in connection therewith, and for the guarantee and warranty of the work for a period of one (1) year following completion and acceptance thereof against any defect in work or labor done, or defective materials furnished, as required by Sections 66499 and 66499.3 of the California Government Code, and Chapter 19.36.030 Improvement Security (66499 et seq.) of the City's Municipal Code. 19-40 NOW, THEREFORE, in consideration of the promises and agreements of the parties as herein set forth, the parties agree as follows: 1. GENERAL IMPROVEMENTS SUBDIVIDER hereby agrees to do and perform and pay for all of the work in said tract required by the conditions of approval of the subdivision map not completed at the time of the recordation thereof, including, but not limited to, street reconstruction including curb, gutter, sidewalk, driveway approaches, paving, street trees and landscaping; sewer, including construction of main lines and lot laterals; and domestic water systems, including the construction of water mains, services and installation of meters, storm drain, dry utilities (Southern California Edison, gas, cable television, telephone, etc.) to City standards. SUBDIVIDER also agrees to pay all engineering costs and any other deposits, fees or conditions as required by CITY ordinance or resolution and as may be required by the City Engineer. All of the work shall be done and performed in accordance with the plans, specifications, and profiles which have been approved by the City Engineer and filed in the office of the City Engineer. All of the work shall be done at the sole cost and expense of SUBDIVIDER. All of the work shall be completed on or before two (2) years from the date hereof, unless the conditions of approval of the subdivision map require an earlier completion date. All labor and material bills therefore shall be paid solely by SUBDIVIDER. CITY may withhold all occupancy permits until completion of all these improvements. 2. GUARANTEE SUBDIVIDER shall guarantee all work and material required to fulfill its obligations as stated herein for a period of one (1) year following the date of the City Council's acceptance of same. 3. IMPROVEMENT PLAN WARRANTY SUBDIVIDER warrants the improvement plans for the work are adequate to accomplish the work as promised herein and as required by the conditions of approval of the subdivision map. If at any time before the City Council accepts the work as complete or during the one (1) year guarantee period, the improvement plans prove to Gallo of Corona del Mar, Inc. and Plaza Coruna del Mar, Inc. Page 2 19-41 be inadequate in any respect, SUBDIVIDER shall make whatever changes, at its own cost and expense, as are necessary to accomplish the work as promised. 4. NO WAIVER BY CITY Inspection of the work and/or materials, or approval of work and/or materials, or any statement by any officer, agent or employee of CITY indicating the work or any part thereof complies with the requirements of this Agreement, or acceptance of the whole or any part of the work and/or materials, or payments therefor, or any combination of all of these acts, shall not relieve SUBDIVIDER of its obligations to fulfill this Agreement as prescribed; nor shall CITY be stopped from bringing any action for damages arising from SUBDIVIDER'S failure to comply with any of the terms and conditions hereof. 5. COSTS SUBDIVIDER shall, at its own cost and expense, pay when due, all the costs of the work, including inspections thereof and relocation of existing utilities required thereby. 6. SURVEYS SUBDIVIDER shalt/ set and establish survey monuments in accordance with the filed map and to the satisfaction of CITY before acceptance of any work as complete by the City Council. 7. IMPROVEMENT SECURITY Upon executing this Agreement, SUBDIVIDER shall, pursuant to California Government Code Section 66499, and the Newport Beach Zoning and Subdivision Ordinance, provide as security to CITY: A. Faithful Performance: For performance, security, in the amount of One Hundred Eighty Thousand Dollars and 00/100 ($180,000.00), which is one hundred percent (100%) of the estimated cost of the work. Gallo of Corona del Mar, Inc. and Plaza Corona del Mar, Inc. Page 3 19-42 With this security, SUBDIVIDER guarantees performance under this Agreement and maintenance of the work for one (1) year after its completion and acceptance against any defective workmanship or materials or any unsatisfactory performance. B. For Labor and Material- Security in the amount of One Hundred Eighty Thousand Dollars and 00/100 ($180,000.00), which is one hundred percent (100%) of the estimated cost of the work. With this security, SUBDIVIDER guarantees payment to the contractor, to its subcontractors, and to persons renting equipment or furnishing labor or materials to them or to SUBDIVIDER. C. SUBDIVIDER shall present such security in the form of: Cash, certified check, or cashier's check in the amount of One Hundred Eighty Thousand Dollars and 00/100 ($180,000.00). Acceptable corporate surety bond. Acceptable irrevocable letter of credit. SUBDIVIDER may, during the term of this Agreement, substitute improvement security provided that the substituted security is acceptable to the City Attorney; however, any bond or other security given in satisfaction of this condition shall remain in full force and effect until one (1) year after the work of improvement Is finally accepted in writing by CITY, and SUBDIVIDER may be required by CITY to provide a substitute security at any time. 8. INDEMNIFICATION. DEFENSE. HOLD HARMLESS City and all officers, employees and representatives thereof shall not be responsible in any manner for any loss or damage to any of the materials or other things used or employed in performing the improvements or for injury to or death of any person as a result of SUBDIVDER's performance of the improvements required hereunder; or for damage to property from any cause arising from the performance of the improvements by SUBDIVDER, or its subcontractors, or its workers, or anyone employed by either of them. Gallo of Corona del Mar, Inc. and Plaza Corona del Mar, Inc. Page 4 19-43 SUBDIVIDER shall be responsible for any liability imposed by law and for injuries to or death of any person or damage to property resulting from defects, obstructions or from any cause arising from SUBDIVDER's Work on the improvements, or the Work of any subcontractor or supplier selected by SUBDIVIDER To the fullest extent permitted by law, SUBDIVIDER shall indemnify, defend, and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers, and employees (collectively, the "Indemnified Parties") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorneys' fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims"), which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this Agreement, any Work performed or Services provided under this ,Agreement including, without limitation, defects in workmanship or materials or SUBDIVDER's presence or activities conducted on the Project (including the negligent and/or willful acts„ errors and/or omissions of SUBDIVIDER, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require SUBDIVIDER to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorneys' fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by SUBDIVIDER SUBDIVIDER shall perform all Work in a manner to minimize public inconvenience and possible hazard, to restore other work areas to their original condition and former usefulness as soon as possible, and to protect public and private property. SUBDIVIDER shall be liable for any private or public property damaged during the performance of the Work by SUBDIVIDER or its agents. Gallo of Carona del Mar, Inc. and Plaza Corona del Mar, Inc. Page 5 19-44 To the extent authorized by law, as much of the money due SUBDIVIDER under and by virtue of the Agreement as shall be considered necessary by City may be retained by it until disposition has been made of such suits or claims for damages as aforesaid. The rights and obligations set forth in this Section shall survive the termination of this Agreement. 9. INSURANCE Any insurance required by the City pursuant to any permit issued to City including but not limited to, any encroachment permits, shall be obtained by SUBDIVIDER. The requirement for carrying the insurance coverage shall not derogate from SUBDIVIDER'S defense, hold harmless and indemnification obligations as set forth in this Agreement. CITY or its representatives shall at all times have the right to demand the original or a copy of the policy of insurance. SUBDIVIDER shall pay, in prompt and timely manner, the premium on all insurance hereinabove required. 10. NONPERFORMANCE AND COSTS If SUBDIVIDER fails to complete the work within the time specified in this Agreement, and subsequent extensions, if any, or fails to maintain the work, CITY may proceed to complete and/or maintain the work by contract or otherwise, and SUBDIVIDER agrees to pay all costs and charges incurred by CITY (including, but not limited to: engineering, inspection, surveys, contract, overhead, etc.) immediately upon demand. SUBDIVIDER hereby consents to entry on the subdivision property by CITY and its forces, including SUBDIVDER's, in the event. CITY proceeds to complete and/or maintain the work. Once action IS taken by CITY to complete or maintain the work, SUBDIVIDER agrees to pay all costs incurred by CITY, even if SUBDIVIDER subsequently completes the work. Gallo of Corona del Mar, Inc. and Plaza Corona del Mar, Inc. Page 6 19-45 11. RECORD MAP In consideration hereof, CITY shall allow SUBDIVIDER to file and record the Final Map for the Subdivision. 12. NOTICES Any notices, certificates, or other communications hereunder shall be given either by personal delivery to SUBDIVIDER or to CITY as the situation shall warrant, or by enclosing the same in a sealed envelope, postage prepaid, and depositing the same in the United States Postal Service, to the addresses specified below. CITY and SUBDIVIDER may designate different addresses to which subsequent notices, certificates or other communications will be sent by notifying the other party via personal delivery, reputable overnight courier or U.S. certified mail -return receipt requested: TO CITY: City of Newport Beach ATTN: Director of Public Works 100 Civic Center Drive Newport Beach, CA 92660 13. CONSENT TO SUBDIVIDER: Plaza Corona Del Mar, Inc. Gallo of Corona Del Mar, Inc. 3900 East Coast Highway Newport Beach, CA 92625 When CITY'S consent/approval is required under this Agreement, its consent/ approval for one transaction or event shall not be deemed to be a consent/approval to any subsequent occurrence of the same or any other transaction or event. 14. MODIFICATION No waiver or modification of any language in this Agreement shall be valid unless in writing and duly executed by both parties. 15. SECTION HEADINGS The titles, captions, section, paragraph and subject headings, and descriptive phrases at the beginning of the various sections in this Agreement are merely descriptive and are included solely for convenience of reference only and are not Gallo of Corona del Mar, Inc. and Plaza Corona del Mar, Inc. Page 7 19-46 representative of matters included or excluded from such provisions, and do not interpret, define, limit or describe, or construe the intent of the parties or affect the construction or interpretation of any provision of this Agreement. 16. INTERPRETATION OF THIS AGREEMENT The language of all parts of this Agreement shall in all cases be construed as a whole, according to its fair meaning, and not strictly for or against any of the parties. If any provision of this Agreement is held by an arbitrator or court of competent jurisdiction to be unenforceable, void, illegal or invalid, such holding shall not invalidate or affect the remaining covenants and provisions of this Agreement. No covenant or provision shall be deemed dependent upon any other unless so expressly provided here. As used in this Agreement, the masculine or neuter gender and singular or plural number shall be deemed to include the other whenever the context so indicates or requires. Nothing contained herein shall be construed so as to require the commission of any act contrary to law, and wherever there is any conflict between any provision contained herein and any present or future statute, law, ordinance or regulation contrary to which the parties have no right to contract, then the latter shall prevail, and the provision of this Agreement which is hereby affected shall be curtailed and limited only to the extent necessary to bring it within the requirements of the law. r���1�1� �[i1a�lY�i7:� [el I► �� The original of this Agreement and one or more copies hereto have been prepared and signed in counterparts as duplicate originals, each of which so executed shall, irrespective of the date of its execution and delivery, be deemed an original. Each duplicate original shall be deemed an original instrument as against any party who has signed it. 18. IMMIGRATION SUBDIVIDER shall be responsible for full compliance with the immigration and naturalization laws of the United States and shall, in particular, comply with the provisions of the United States Code regarding employment verification. Gallo of Corona del Mar, Inc. and Plaza Corona del Mar, Inc. - --Page 8 19-47 19. LEGAL SERVICES SUBCONTRACTING PROHIBITED SUBDIVIDER and CITY agree that CITY is not liable for payment of any subcontractor work involving legal services, and that such legal services are expressly outside the scope of services contemplated hereunder. SUBDIVIDER understands that pursuant to Newport Beach City Charter Section 602, the City Attorney is the exclusive legal counsel for CITY; and CITY shall not be liable for payment of any legal services expenses incurred by SUBDIVIDER. 20. ATTORNEY'S FEES In the event suit is brought by either party to construe, interpret and/or enforce the terms and/or provisions of this Agreement or to secure the performance hereof, each party shall bear its own attorney's fees, such that the prevailing party shall not be entitled to recover its attorney's fees from the non -prevailing party. 21. SURVIVAL Terms and conditions of this Agreement, which by their sense and context survive the expiration or termination of this Agreement shall so survive. 22. GOVERNING LAW This Agreement shall be governed and construed in accordance with the laws of the State of California. 23. SIGNATORIES Each undersigned represents and warrants that its signature herein below has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify CITY fully for any injuries or damages to CITY in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. 24. ENTIRETY The parties acknowledge and agree that they are entering into this Agreement freely and voluntarily following extensive arm's length negotiations, and that each has Gallo of Corona del Mar, Inc. and Plaza Corona del Mar, Inc. Page 9 19-48 had the opportunity to consult with legal counsel prior to executing this Agreement. The parties also acknowledge and agree that no representations, inducements, promises, agreements or warranties, oral or otherwise, have been made by that party or anyone acting on that party's behalf, which are not embodied in this Agreement, and that that party has not executed this Agreement in reliance on any representation, inducement, promise, agreement, warranty, fact or circumstance not expressly set forth in this Agreement. This Agreement contains the Entire agreement between the parties respecting the subject matter of this Agreement and supersedes all prior understandings and agreements whether oral or in writing between the parties respecting the subject matter hereof. [SIGNATURES ON NEXT PAGE] Gallo of Corona del Mar, Inc. and Plaza Corona del Mar, Inc. Page 10 19-49 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their authorized offices the day, month and year first above written. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: B y: - Aaron C. Harp LAM 111001licv City Attorney ATTEST: Date: Leilani I. Brawn City Clerk CITY OF NEWPORT BEACH, a California municipal corporation Date: By: Diane B. Dixon Mayor SUBDIVIDER: Gallo of Corona Del Mar, Inc., a California corporation Date: By: Magdi R. Hanna President / Chief Financial Officer Plaza Corona Del Mar, Inc., a California corporation Date: Bv: Magdi R. Hanna President / Secretary Gallo of Corona del Mar, Inc. and Plaza Corona del Mar, Inc. - Page 11 19-50