HomeMy WebLinkAbout5.0_Attachment_001 - Draft Resolution with Findings and Conditions - PA2014-213 Attachment No. PC 1
Draft Resolution with
Findings and Conditions
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RESOLUTION NO. ####
A RESOLUTION OF THE PLANNING COMMISSION OF THE
CITY OF NEWPORT BEACH, CALIFORNIA, RECOMMENDING
THE CITY COUNCIL CERTIFY ENVIRONMENTAL IMPACT
REPORT NO. ER2015-002 AND APPROVE GENERAL PLAN
AMENDMENT NO. GP2014-003, ZONING CODE AMENDMENT
NO. CA2014-008, PLANNED COMMUNITY DEVELOPMENT
PLAN NO. PC2014-004, SITE DEVELOPMENT REVIEW NO.
SD2014-006, TENTATIVE TRACT MAP NO. NT2015-003, AND
DEVELOPMENT AGREEMENT NO. DA2014-002, FOR A 45-
UNIT MULTI-FAMILY RESIDENTIAL DEVELOPMENT LOCATED
AT 150 NEWPORT CENTER DRIVE (PA2014-213)
THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS
FOLLOWS:
SECTION 1. STATEMENT OF FACTS.
1. An application was filed by Newport Anacapa Associates, LLC, with respect to property
located at 150 Newport Center Drive, and legally described as Parcel 1 of Resubdivision
No. 282 being a portion of Block 93 of Irvine's subdivision as per map recorded in Book
1, Page 88 of Miscellaneous Record Maps, records of Orange County, California.
2. The project includes demolition of an existing 8,500-square-foot car-wash, convenience
market, and gas station to accommodate the development of a 5-story 45-unit residential
condominium building with three levels of subterranean parking. The applicant requests
following approvals from the City of Newport Beach:
• General Plan Amendment (GPA) - to change the land use category from CO-R
(Regional Commercial Office) to RM (Multi-Unit Residential) and establish an
anomaly (Table LU2) designation for 45 dwelling units.
• Zoning Code Amendment - to change the Zoning District designation from OR
(Office Regional Commercial) to PC (Planned Community District) over the entire site.
• Planned Community Development Plan - to establish a planned community
development plan (PC) over the entire project site that includes development and
design standards for 45 residential condominium units. The request also includes a
City Council waiver of the minimum site area of 10 acres. A height limit of 75 feet 6
inches with mechanical appurtenances up to 83 feet 6 inches was discussed in the
EIR although a reduced height is also considered.
• Site Development Review - to allow the construction of 45 multi-family dwelling
units.
• Tentative Tract Map -to establish a 45-unit residential condominium tract on a 1.3
acre site.
• Development Agreement - review of a proposed development agreement that would
provide public benefits should the project be approved.
• Environmental Impact Report (EIR) - to address reasonably foreseeable
environmental impacts resulting from the legislative and project specific discretionary
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approvals, the City has determined that an Initial Study and Environmental Impact
Report (EIR) are warranted for this project pursuant to the California Environmental
Quality Act (CEQA).
3. The subject property is located within the OR (Office Regional Commercial) Zoning
District and the General Plan Land Use Element category is CO-R (Regional Commercial
Office).
4. The subject property is not located within the coastal zone.
5. A study session was held on June 23, 2016, in the Council Chambers at 100 Civic
Center Drive, Newport Beach to introduce the project to the Planning Commission and
review the conclusions of the draft EIR. No action was taken at the study session.
6. A public hearing was held on July 21, 2016, in the Council Chambers located at 100
Civic Center Drive, Newport Beach. A notice of time, place and purpose of the public
hearing 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 public hearing. The item was continued to the August 18, 2016, Planning
Commission Meeting.
7. A public hearing was held on August 18, 2016, in the Council Chambers located at 100
Civic Center Drive, Newport Beach. A notice of time, place and purpose of the public
hearing 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 public hearing.
SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION.
1. A draft Environmental Impact Report (SCH No. 2016011032) (DEIR) has been
prepared in compliance with the California Environmental Quality Act (CEQA), the
State CEQA Guidelines, and City Council Policy K-3.
2. The DEIR was circulated for a 45-day comment period beginning on May 13, 2016 and
ending on June 27, 2016. The DEIR, comments, and responses to the comments were
considered by the Planning Commission in its review of the proposed project.
3. On the basis of the entire environmental review record, the proposed project, with
mitigation measures, will have a less than significant impact upon the environment and
there are no known substantial adverse affects on the environment that would be
caused by the project. Additionally, there are no long-term environmental goals that
would be compromised by the project, nor cumulative impacts anticipated in
connection with the project. The mitigation measures identified and incorporated in
the Mitigation Monitoring and Reporting Program are feasible and will reduce the
potential environmental impacts to a less than significant level.
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4. The Planning Commission finds that judicial challenges to the City's CEQA
determinations and approvals of land use projects are costly and time consuming. In
addition, project opponents often seek an award of attorneys' fees in such challenges.
As project applicants are the primary beneficiaries of such approvals, it is appropriate
that such applicants should bear the expense of defending against any such judicial
challenge, and bear the responsibility for any costs, attorneys' fees, and damages
which may be awarded to a successful challenger.
SECTION 3. REQUIRED FINDINGS.
Amendments
1 . Amendments to the General Plan and Zoning Code are legislative acts and neither the
City nor State Planning Law set forth any required findings for either approval or denial
of such amendments.
2. The requested GPA and resulting land use change is compatible with the existing
surrounding uses and planned land uses identified by the General Plan because the
project would introduce additional residential land uses in Newport Center.
Additionally, the proposed amendment from CO-R to RM will be compatible with
adjacent commercial properties. The Newport Center area has a high demand for
additional residential development and additional residential units would support
commercial properties within the area.
3. The requested GPA from CO-R to RM does not eliminate existing or future land uses
to the overall detriment of the community given the site's size, location, and
surrounding uses. Maintaining the site's CO-R land use designation would require
redevelopment of the site to accommodate other commercial uses.
4. The requested GPA and resulting land use change is consistent with other applicable
land use policies of the General Plan. Consistent with General Plan Goal LU6.14 for
Newport Center, the project site is located in an area of Newport Center where multi-
family uses are encouraged to produce opportunities to live close to jobs, commerce,
entertainment, and recreation. The size, density and character of the proposed
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 require multi-family dwellings to be designed
to convey a high quality architectural character. Consistent with General Plan Policy
LU 6.2.1 (Residential Supply), the provision of 45 dwelling units on the site would
accommodate Newport Beach population needs and accommodate market demand
for residential uses.
5. The proposed PC District meets the intent and purpose for a PC adoption as specified
in Newport Beach Municipal Code (NBMC) Section 20.56.010 (Planned Community
District Procedures, Purpose) for a PC adoption when considering it in a larger context
beyond the site's boundaries given its location in the Newport Center area which
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includes a mixture of shopping, hotels, commercial support uses, professional offices,
and residential developments that cohesive contain the ingredients of a planned
community. The proposed PC District adds to this diversity assisting the City in larger
scale community planning.
6. The proposed Planned Community (PC) Zoning would apply appropriate site and
project specific setbacks, density, and height limits to the project site given the site's
urban location and all required parking is provided on-site. The site is fully developed
and does not support any natural resources and all potential environmental impacts
associated with the project are appropriately addressed through standard building
permit procedures and the mitigation measures identified in the Environmental Impact
Report.
7. The requested Zoning Code Amendment to establish a Planned Community
Development Plan will provide appropriate land use regulations and development
standards ensuring that the project will meet the goals, objectives, and policies of the
General Plan and purpose of the PC district. Despite the requirement that PC's be 10
acres to take advantage of larger-scale comprehensive planning, the 1.26-acre 150
Newport Center Planned Community provides for a coordinated and comprehensive
project establishing an urban standard more consistent with the project's location
within the larger commercial and mixed-use Newport Center area. The Multiple-Unit
Residential (RM) development standards reflect a suburban standard and establishing
urban standards through a Planned Community are necessary to better integrate the
proposed project with the surrounding area. Larger scale, comprehensive planning for
Newport Center has been accomplished through North Newport Center Planned
Communities and other planned communities for the area, and thus, a waiver of the
10-acre area requirement for the establishment of a Planned Community is
appropriate for the proposed project under these circumstances.
8. The future development of the property affected by the proposed amendments will be
consistent with the goals and policies of the Land Use Element of the General Plan;
and will be consistent with the purpose and intent of the proposed 150 Newport Center
Planned Community (PC) Zoning District of the Newport Beach Municipal Code.
9. A development agreement is requested by the applicant as the project would add new
residential dwelling units within Statistical Area L1 (Newport Center). The
Development Agreement includes all the mandatory elements for consideration and
public benefits that are appropriate to support conveying the vested development
rights consistent with the General Plan, NBMC, and Government Code Sections
65864 et seq.
Height Increase
NBMC Section 20.30.060(C)(3) (Height Limits and Exceptions, Required Findings) requires
findings to be made to adopt a Planned Community District with an increase in the height of
the structure above the base height limit:
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Finding:
A. The project applicant is providing additional project amenities beyond those that are
otherwise required. Examples of project amenities include, but are not limited to:
i. Additional landscaped open space;
ii. Increased setback and open areas;
iii. Enhancement and protection of public views; and
Facts in Support of Finding:
1. The building design continues to provide a high level of design with open space,
landscape, residential amenities, and building setbacks that are greater than what
would be required under the RM standards of the Zoning Code.
2. The site design provides 10,389 square feet of exterior outdoor common open space
where a total of 3,375 square feet are required (75 square feet/dwelling unit) under the
RM development standards of the Zoning Code. A total of 8,389 square feet of
landscaped area is provided on-site, which will comply with the requirements of
Chapter 14.17 (Water-Efficient Landscaping) of the Municipal Code.
3. The building setbacks provide 24 feet along Newport Center Drive where the RM
development standards require 20 feet. The building setback along the Anacapa street
frontage provides 22 feet 6 inches where the Zoning Code requires 20 feet 9 inches (8
percent of the average lot width). The southerly building frontage provides a 22-foot
building setback where the Zoning Code requires 10 feet. The side setback along the
westerly edge of the property provides a reduced building setback of 14 feet to
accommodate larger street frontage setbacks on the opposite side where the Zoning
Code typically requires a side setback of 20 feet 9 inches. Basement level setbacks
occur largely below grade and are not immediately visible from the street frontage
along Newport Center Drive and Anacapa Drive. The project design also provides
greater building setbacks than are required under the current OR development
standards, which require 20-foot street frontage setbacks and 0-foot setbacks along
the interior side and rear property lines.
4. The project does not affect existing public views as shown in the view simulations
provided on Pages 4.1-15 through 4.1-18 of the DEIR and does not detract from the
character of the area. The overall project height is consistent with the height limit and
existing building heights on adjacent properties and surrounding blocks.
Finding:
B. The architectural design of the project provides visual interest through the use of light
and shadow, recessed planes, vertical elements, and varied roof planes;
Facts in Support of Finding:
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1. The exterior is comprised predominantly of a pre-cast concrete fagade, stainless steel
finishes, and glass. Massing off-sets, variations of roofline, varied textures, recesses,
articulation, and design accents on the elevations are integrated to enhance the
building's architectural style.
2. The building fagade is designed to be compatible with surrounding retail and office
development in Newport Center. The architectural design provides a significant
amount of articulation with its two enclave design to fit with the context of surrounding
office buildings in the Newport Center area. The roof profile design is modulated, to
reduce the scale of the structure and to provide visual interest and variety. Mechanical
equipment and elevator overrides are stepped back to minimize the scale and bulk of
these structures from the street view.
Finding:
C. The increased height will not result in undesirable or abrupt scale changes or
relationships being created between the proposed structure(s) and existing adjacent
developments or public spaces. Where appropriate, the proposed structure(s) provides
a gradual transition to taller or shorter structures on abutting properties; and
Facts in Support of Finding:
1. The project does not appear out of character and utilizes an overall building height
limit (including mechanical appurtenances) similar to those applied to other properties
in Block 100 of Newport Center. The resulting building height also fits into the context
of surrounding development at the south end of Newport Center, where nonresidential
building heights range from 20 feet up to 74 feet 4 inches in height.
Finding:
D. The structure will have no more floor area than could have been achieved without the
approval of the height increase.
Facts in Support of Finding:
1. The proposed floor area for the project would conform to the dwelling unit and gross
floor area limit established through adoption of the Planned Community Development
Plan.
Site Development Review
A site development review is required for the construction of five or more residential units
processed in conjunction with a tentative tract map. The site development review analyzes
the project as a whole for compatibility with the site and surrounding land uses. In
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accordance with NBMC Section 20.52.080(F) (Site Development Review) of the Zoning
Code, the following findings and facts in support of a site development review are set forth:
Finding:
E. Allowed within the subject Zoning district,
Facts in Support of Finding:
1. The proposed Site Development Review for a 45-unit condominium project is
consistent with the proposed Planned Community Development Plan that allows 45
residential units.
Finding:
F. In compliance with all of the applicable criteria in (NEMC Subsection
2 0.5 2.0 8 0(C)(2)(c)]:
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;
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 [NEMC] Section 20.30.100 (Public View Protections); and
Facts in Support of Finding:
1. Refer to facts 1 through 9 under Amendments, above that discuss the project's
consistency with the proposed Multiple-Unit Residential (RM) General Plan land use
designation and the Planned Community Development Plan (PC) Zoning District.
2. The project has been designed as 45 units within a 5-story building structure with two
enclaves and provides for effective private open space, light, and air for each unit. The
project is integrated as a unified development through the use of similar architectural
style and design elements, on-site parking, adequate and vehicular and pedestrian
circulation with adjacent properties.
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3. The building design with two enclaves and a glass and metal linkage, together with the
modulated roof profile, are designed to be compatible with surrounding retail and office
development in Newport Center. The building architecture provides pre-cast concrete
fagade, stainless steel finishes, and glass materials similar to surrounding office
buildings in the area. Massing offsets, variations of roofline, varied textures, recesses,
articulation, and design accents on the elevation are integrated to enhance the overall
architectural style of the building.
4. The front setbacks along each street frontage are appropriate to support pedestrian
connectivity within Newport Center. All entry level residential units are oriented toward
adjacent streets to maximize the pedestrian relationship of the development to the
surrounding Newport Center area. The greater setbacks afford a greater interface with
the adjacent rights-of-way to ensure compatibility with the pedestrian environment.
5. The height, bulk, and scale of the residential building is comparable to height limits on
surrounding properties and existing building heights at the south half of Newport
Center. The building is designed to provide variation and modulation between
enclaves for visual interest. The front fagades include both vertical and horizontal off-
sets and utilize a variation of building materials to provide enhanced visual relief. The
massing of the project is broken up into two enclaves, breaking up building massing.
6. Mechanical equipment for the residential units have been located within enclosures at
the roof deck level to reduce noise impacts and the enclosures will provide effective
screening below the roof deck parapet level to minimize aesthetic impacts.
7. The project has been designed to avoid conflicts among uses, such as noise,
vibration, lighting, odors, and similar impacts. The podium wall provides a buffer
between the proposed residential units and the adjacent commercial development to
the south and west of the project site and is designed to maintain privacy and
protection for the residential tenants.
8. The units are oriented toward the adjacent rights-of-way to support pedestrian
connections in Newport Center. Walkways and egress are sufficient throughout the
site as reviewed by the Building Division and the City Traffic Engineer. Existing
pedestrian easements will be maintained at an appropriate width along the southern
property line and along Anacapa Drive to ensure adequate access across the site.
9. The project provides the Code required 90 residential parking spaces, and 23
residential guest parking spaces, which can be provided entirely on-site. Each
residential unit will be afforded a private, enclosed two-car garage. All guest parking
spaces are provided in the basement level garage with one parking space at the entry
level.
10. Access to the site, on-site circulation, and parking areas are designed to provide
standard-sized parking spaces, minimum 26-foot-wide, two-way driveways, and the
minimum vehicle turning radius to provide safe access for residents and guests
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(including the disabled), emergency vehicles, delivery trucks, and refuse collections
vehicles, as determined by the City Traffic Engineer.
11. A waiver of Council Policy L-2 is requested to utilize a radius curb cut design along
Anacapa Drive. Council Policy L-2 specifies that driveway approaches may utilize a curb
return design with a maximum curb radius of 25 feet and a driveway approach bottom of
greater than 35 feet only if the driveway serves an entrance to a parking area or structure
for more than 200 vehicles. Since the proposed parking structure does not serve more
than 200 vehicles a waiver of this policy is necessary to utilize this curb return design.
Public Works staff has reviewed this request and does not object the applicant's request.
12. The project does not change any street parking configurations. The site design
provides two new curb cuts with guest ingress and egress access from Anacapa Drive.
The project utilizes an existing driveway at the south of the project site for resident
access. The project provides adequate sight distance at each driveway, as determined
by the City Traffic Engineer.
13. Landscaping is provided throughout the site in areas that are not utilized by the
existing units or areas for parking circulation. All setback areas are landscaped. A
variation of ornamental groundcover, vines, shrubs, and trees are utilized to help
soften and buffer the massing of the condominium units and podium at ground level.
14. New street trees will be provided along both street sides of Anacapa Drive.
15. The project is subject to the City's Water-Efficient Landscape requirements (NBMC
Chapter 14.17) and compliance will be confirmed at plan check prior to issuing building
permits.
16. The proposed residential development provides a series of common outdoor living
areas that includes a dog run, open plazas, and landscaped seating areas adjacent to
Newport Center Drive. Half of the units provide private outdoor living space in the form
of large balconies and private patios at the entry level.
17. The site is visible from the coastal corridor along MacArthur Boulevard identified by the
General Plan. However, this vantage point is oriented toward water views of Newport
Bay. The view from the MacArthur Boulevard vantage point will not be changed
significantly where the proposed development may be visible beyond existing buildings
and trees but will not obstruct coastal views. The project does not affect existing public
views as shown in the view simulations provided on Pages 4.1-15 through 4.1-18 of
the DEIR and does not detract from the character of the area. The overall project
height is consistent with the height limit and existing building heights on adjacent
properties and surrounding blocks.
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Finding:
G. 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.
Facts in Support of Finding:
1. The residential project has been designed 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 by providing an architecturally pleasing
project with articulation and building modulations to enhance the urban environment
consistent with development in Newport Center.
2. The proposed building has been designed to accommodate and provide safe access
for emergency vehicles, delivery trucks, and refuse collections vehicles, as determined
by the City Traffic Engineer. Emergency vehicles and delivery trucks will utilize the
guest entry off of Anacapa Drive while refuse collections vehicles will load trash via a
scout truck along the south driveway. The size, design, location, and screening of the
refuse enclosures will comply with the requirements of NBMC Section 20.30.120 (Solid
Waste & Recyclable Materials Storage), ensuring compatibility with the on-site and
adjacent uses.
3. The proposed project is forecasted to generate a maximum of 205 average daily trips,
assuming the proposed project is a High Rise Residential Condominium/Townhouse
(ITE 232), therefore a traffic study pursuant to the Traffic Phasing Ordinance is not
required. The existing use generates 819 average daily trips and the proposed
development results in a reduction of average daily traffic trips.
4. The project is anticipated to demand a maximum of 10,417 gallons per day (gpd) and
generate a maximum of 9,470 gpd of waste water. This result is an overall reduction
from the existing car wash use where water demand is 12,395 gpd and waste water
generation is 11,156 gpd.
5. The scale and visual impact to the adjacent commercial property to the west would be
minimized with the design of the 8-foot 6-inch podium wall designed with a 3-foot
landscape buffer and open guardrail above.
2. The project is subject to the City's Outdoor Lighting requirements contained within
NBMC Section 20.30.070.
3. Roof-top mechanical equipment for each unit is fully enclosed within an equipment
screen and is not visible from the public right-of-way.
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4. The new construction complies with all Building, Public Works, Fire Codes, City
ordinances, and all conditions of approval.
Tentative Tract Map
A tentative tract map is requested for residential condominium purposes, to create 45
condominium units. In accordance with NBMC Section 19.12.070 (Required Findings for
Action on Tentative Maps), the following findings and facts in support of a tentative tract map
are set forth:
Finding:
H. That the proposed map and the design or improvements of the subdivision are
consistent with the 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:
1. Refer to facts 1 through 4 under Amendments, above, that discuss the project's
consistency with the proposed Multiple-Unit Residential (RM) General Plan land use
designation.
2. The Tentative Tract Map provides for the development of a cohesive planned
community with a pattern of dwelling unit orientations and vehicle circulation that
provide a pedestrian-friendly environment with strong connectivity to adjacent
commercial and office areas.
3. The Public Works Department has reviewed the proposed tentative map and found it
consistent with the Newport Beach Subdivision Code (NBMC Title 19) and applicable
requirements of the Subdivision Map Act.
4. Conditions of approval have been included to ensure compliance with NBMC Title 19.
Finding:
1. That the site is physically suitable for the type and density of development.
Facts in Support of Finding:
1. The site has a gentle sloping condition and the building design accommodates this slope
with a podium wall at the south and west edge and larger building setbacks above the
podium. The site is safe and suitable for development. The site is not located in a flood
zone. The geotechnical feasibility study and geotechnical report will provide additional
recommendations for construction of the proposed project to ensure the suitability for the
proposed development that will be required for construction prior to the issuance of
building permits.
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2. The 1.26 acre site is large enough to accommodate 45 units while providing sufficient
landscape setback and open space areas as well as vehicle access and guest parking
areas that meet applicable standards. The existing developed site is devoid of natural
resources and it is located in an area that provides adequate access to roadways and
utilities.
3. The General Plan estimates that future traffic noise exposure will be 65 dB CNEL to
the nearest residential facades to Newport Center Drive and identifies that residential
uses are normally compatible or compatible with noise insulation features included in
the design. With appropriate noise control measures under conventional construction
and design of the proposed project (e.g., closed windows, fresh air supply systems or
air conditioning), the interior noise levels comply with the City and State interior noise
standard of 45 dB CNEL for residential units.
Finding:
J. 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:
1. Under existing conditions, the project site and surrounding land areas are fully developed
with urban uses and do not contain sensitive biological resources. The vegetation that
occurs on-site is ornamental in nature, including trees and ornamental shrubs,
groundcover, and vines growing on the existing building's facades and screen walls. A
Mitigation Measure is provided in the Mitigation Monitoring and Reporting Program
(MMRP)to ensure adequate protection of nesting birds during the construction process.
2. No drainages traverse the property and no potential jurisdictional waters or wetlands
areas are present on or immediately adjacent to the site.
3. An environmental impact report (SCH No. 2016011032) was prepared for the proposed
project. On the basis of the entire environmental review record, the proposed project
will have a less than significant impact upon the environment with the incorporation of
mitigation measures for biological resources, cultural resources, geology and soils,
and noise. The mitigation measures identified in the DEIR are feasible and reduce
potential environmental impacts to a less than significant level. The mitigation
measures are applicable to the project through the MMRP.
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Finding:
K. That the design of the subdivision or the type of improvements is not likely to cause
serious public health problems.
Facts in Support of Finding:
1. At full build-out, air quality and Green House Gas (GHG) emissions associated with
construction of the project will be less than significant, as documented in the DEIR.
2. Mitigation measures identified in the DEIR reduce potential impacts associated with
biological resources, cultural resources, geology and soils, and noise to a level that is
less than significant.
3. No evidence is known to exist that would indicate that the planned subdivision pattern will
generate any serious public health problems.
4. All construction for the project complies with Building, Public Works, and Fire Codes.
Public improvements will be required of the developer per NBMC Section 19.28.010 and
Sections 66410 et seq. of the Subdivision Map Act. All ordinances of the City and all
conditions of approval will be complied with.
Finding:
L. 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:
1. Public improvements, consisting of the reconstruction of the curb, gutter, and
sidewalks, two new driveways along the Anacapa Drive frontage, and street trees will
be required of the applicant per the NBMC and the Subdivision Map Act. A common
sewer and water connection will be provided for the project as approved by the Public
Works Department that will connect to an existing 12-inch main in Anacapa Drive.
2. The tract map will reduce the width of the existing 18-foot wide pedestrian easement at
the south edge of the site to 5 feet in width to accommodate the location of new
structures as part of the development. The design of the development will not conflict
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with any easements acquired by the public at large for access through or use of
property within the proposed development.
3. The tract map will maintain the existing 3-foot wide pedestrian walkway easement at
the east edge of the site.
Finding:
M. 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:
1. The project site does not contain prime farmland, unique farmland, or farmland of
statewide importance and no portion of the Project site is covered by a Williamson Act
contract.
Finding:
N. 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:
1. The1. California Business and Professions Code Section 11000.5 has been repealed by
the Legislature. However, this project site is not considered a "land project' as
previously defined in Section 11000.5 of the California Business and Professions Code
because the project site does not contain 50 or more parcels of land nor is it located
within the boundaries of a specific plan.
Finding:
O. 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:
1. The proposed Tentative Tract Map and improvements are subject to Title 24 of the
California Building Code that requires new construction to meet minimum heating and
03-03-2015
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Planning Commission Resolution No. ####
Page 15 of 34
cooling efficiency standards depending on location and climate. The Newport Beach
Community Development Department enforces Title 24 compliance through the plan
check and inspection process.
Finding:
P. 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.
Facts in Support of Finding:
1. There are no existing dwelling units on the project site. Rather, the proposed project
includes the construction of 45 new condominium units to contribute to the City's
population needs, and 45 units above what is planned for within the General Plan. The
applicant will be responsible for the payment of appropriate fair share, San Joaquin
Transportation Corridor, park, and development agreement fees for the development
of these new dwelling units as conditions of approval.
Finding:
Q. 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:
1. A National Pollutant Discharge Elimination System (NPDES) permit is required from the
Regional Water Quality Control Board (RWQCB) for the proposed construction activities.
A permit is required for all construction activities that include clearing, grading, and/or
excavation that disturb at least one acre of total land area. Additionally, a Water Quality
Management Plan (WQMP) has been prepared, pursuant to the requirements of the
NPDES permit.
2. Compliance with the NPDES permit and the Santa Ana River Basin Water Quality
Control Program involves the preparation and implementation of a SWPPP for
construction-related activities, which would specify the Best Management Practices
(BMP's) that the project would be required to implement during construction activities
to ensure that all potential pollutants of concern (including sediment) are prevented,
minimized, and/or otherwise appropriately treated prior to being discharged from the
subject property.
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Planning Commission Resolution No. ####
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3. Sewer connections have been conditioned to be installed per City Standards, the
applicable provisions of NBMC Chapter 14.24 (Sewer Connection, Permits), and the
latest revision of the Uniform Plumbing Code.
4. There is adequate sewer system capacity to serve the requirements of the proposed
project. The proposed project is able to tie into the existing sewer system without
adversely affecting the system, causing any water quality affects, or violating existing
requirements prescribed by the Regional Water Quality Control Board. Wastewater
from the project will be generated by residential build-out. There will be a reduction in
wastewater from the site with the demolition of the existing car wash and construction
of the proposed dwelling units (Refer to Finding G-4).
5. Section 14.24.020 (Dwelling Unit and Business Structure Sewer Connection Required)
requires each dwelling unit to maintain individual water meter and sewer connections.
The project has received a waiver of this requirement from the Municipal Operations
Director since the units are located in one building and will together connect to the
existing water and sewer systems.
Finding:
R. 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:
1. The project site is not located within the Coastal Zone.
SECTION 4. DECISION.
NOW, THEREFORE, BE IT RESOLVED:
1. The Planning Commission hereby recommends the City Council of the City of Newport
Beach certify Environmental Impact Report No. ER2015-002 (SCH No. 2016011032)
as depicted in Exhibit "A" and Mitigation Monitoring Report Program as depicted in
Exhibit "B" of this resolution.
2. The Planning Commission hereby recommends the City Council of the City of Newport
Beach approve General Plan Amendment No. GP2014-003 as depicted in Exhibit "C,"
changing the General Plan land use designation of 150 Newport Center Drive from
CO-R (Regional Commercial Office) to Multiple-Unit Residential (RM, 45 du).
3. The Planning Commission of the City of Newport Beach hereby recommends City
Council approval of Zoning Code Amendment No. CA2014-008 as depicted in Exhibit
"D," changing the Zoning designation of 150 Newport Center from OR (Office Regional
Commercial) to PC (Planned Community), waiving the 10-acre minimum PC area
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Planning Commission Resolution No. ####
Page 17 of 34
requirement, and adopting Planned Community Development Plan No. PC2014-004 for
the 150 Newport Center Planned Community Text as set forth in Exhibit "E."
4. The Planning Commission of the City of Newport Beach hereby recommends City
Council approval of Development Agreement No. DA2014-002, as set forth in Exhibit "F."
5. The Planning Commission of the City of Newport Beach hereby recommends City
Council approval of Site Development Review No. SD2014-006 and Tentative Tract Map
No. NT2015-003, subject to the conditions of approval set forth in Exhibit "G."
6. This action shall become final and effective 14 days following the date this Resolution
was adopted unless within such time an appeal is filed with the City Clerk in
accordance with the provisions of NBMC Title 20.
7. This resolution supersedes Use Permit No. 1461, which upon vesting of the rights
authorized by this approval, shall become null and void.
PASSED, APPROVED, AND ADOPTED THIS 18TH DAY OF AUGUST, 2016.
AYES:
NOES:
ABSTAIN:
ABSENT:
BY:
Kory Kramer, Chairman
BY:
Peter Zak, Secretary
03-03-2015
39
Planning Commission Resolution No. ####
Page 18 of 34
Exhibit "A"
Environmental Impact Report
EIR SCH No. 2016011032
(Available separate due to bulk)
http://www.newl)ortbeachca.gov/index.asl)x?gape=1347
03-03-2015
40
Planning Commission Resolution No. ####
Page 19 of 34
Exhibit "B"
Mitigation Monitoring Report Program
03-03-2015
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■■ 150 NEWPORT CENTER
■❑ ENVIRONMENTAL IMPACT REPORT ES.0 EXECUTIVE SUMMARY
LEVEL OF
7HREHOLD MITIGATION MEASURES RESPONSIBLE MONITORING IMPLEMENTATION SIGNIFICANCE
PARTY PARTY S'd1:L AFTER
MITIGATION
Threshold b_The Project would not exceed No Mitigation is Required. N/A N/A N/A Less-Than-Significant
the SCAQMD Regional Emissions Impact
Thresholds for any criteria pollutants during
eommuction. Accordingly, the Project s
construction activities would not violate any
an quality standard or commute to a
existing or projected an quality violation.
Therefor, a less-Wau-significant impact
would occur from the construction
emissions associated with the proposed
Project.
The proposed Project's operational-source
emissions would not exceed applicable
SCAQMD regional thresholds of
significance during the operation of the
proposed Project ]herefore, impacts
associated with long-term air emissions
would he less than significant.
Threshold c Near-term construction No Mitigation is Required. N/A N/A N/A Less-Than-SiMifcant
missions and long-term operational Impact
emissions would not substantially
contribute to a net-incase of any criteria
pollutant for which the Project's region is is
v-attainment Impacts would be It.thou
sigruficaut.
Threshold d.The Project would not result in No Mitigation is Requited. N/A N!A N/A Less-Than-Signilicom
r contribute to a CO "Hct Spot" The Impact
Project also would not result in a significant
adverse health impact to sensitive receptors.
Thus a less-than-significant impact to
sensitive receptors during both construction
and opernm nal activity is expected.
Threshold e:The Project does not propose No Mitigation is Required. N/A N/A N/A Less-Thou-Significant
any uses or activities that would remh in Impact
potentially significant operational-source
odor impacts. PotenEal sources of
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■❑ ENVIRONMENTAL IMPACT REPORT ES.0 EXECUTIVE SUMMARY
LEVEL OF
7I1REH(lLD MITIGATION MEASURES RESPONSIBLE MONITORING IMPLEMENTATION SIGNIFICANCE
PARTY PARTY SI'%(:L AFTER
MITIGATION
operational m1m,genermod by the eject
would include disposal of solid waste
generated by the msiderm a,si¢. Trash
areas for the Project would be located on
parking levels B-1 through B2, each of
which has separate trash areas. Consistent
with Cary rcquiremems, all Project-
genemad refuse would be stared in covered
containers and removed at regular intervals
omplimee with solid waste regulations.
Accordingly, operational-source odor
impacts would be less than significant
4.3 Biological Resources
Summaryoflmpacts
Threshold a No sensitive vegetation No Mitigmton is Required. N/A N/A N/A No Impact
commoaities,speeial-stams Plnnt species,or
spacial-,tams wildlife species are located on
r near the P jest site. The Project would
have no substantial impact either directly
or through habitat modifications, on any
other candidate,sensitive,or special status
plant or wildlife species.
Threshold b:The Project would have no No Mifigafien is Required. N/A N/A N/A No Impact
potential to impact riparian habitat or othor
sensitive natural community identified in
local or regional plans,policies.regulations,
or by the CDFW and USFWS. No impact
s.ould occur.
Threshold r. No federally protected No Mifigation is Required. N/A N/A N/A No Impact
wetlands are located on the Project sate;
therefore, no impact to wetlands would
.corm
Threshold d: There is no potential for the MM 4.3-1 Prior to the issuance of a demolition Director ofCommunity Construction Contractor Prior to the issuance of a Less-Than-Significant
Project to wterfere with the movement of pewit, the Director of Community Development Development demolition permit,during Impact
fish or impede the use of a native wlldlafe shall ensure that any love removal activaries occur into removal activifies
nursery site. The Project has the potential outside of the nesting season(Febmary 1st to August
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■■ 150 NEWPORT CENTER
■❑ ENVIRONMENTAL IMPACT REPORT ES.0 EXECUTIVE SUMMARY
LEVEL OF
711RESH(lLD MITIGATION MEASURES RESPONSIBLE MONITORING IMPLEMENTATION SIGNIFICANCE
PARTY PARTY SI'%(:L AFTER
MITIGATION
on directly and cumulatively impact nesting 31st). If it is determined necessary for bee removal
bit& protected by federal and State activities to actor between To mmy tat and August
regulations, if tree removals during 319,the Director of Community Development shall
construction activities were in occur during require a pre-construction nesting bird survey to be
the nesting season. conducted by a qualified biologist within seven(7)
days prim m any tree removal activities. Auy intwe
Implementation of Mitigation Measure MM nests identified shall have a buffer area established
4.3-1 would ensure that a pre-construction witltw a 100-foot radius(200 font for birds of prey)
nearing bird surveys conducted to of the active nest. Disturbance shall not occur within
determine the presence orabsence of active the buffer area until the qualified biologist determines
nests prior to tree removal. If present,the that the young have fledged. Demolition and
mitigation measure mandates a buffer area construction activity may only occur within the
mound active nests until the young have buffer area at the discretion of the qualified biologist.
fledged. W1ih implementation of the
required mitigation, potential dvect and
connotatively considerable impacts to
nesting birds would be reduced to below a
level of significance.
Threshold e:The Project would not conflict No Mitigation is Required. N/A N/A N/A No Imposed
with any local policies or ordinances
protecting biological resources.
Threshold f.The Project would not conflict Na Mitigation is litigated. N/A N/A, NFA No Impact
with the provisions of an adopted Habitat
Conservation Plan, Natural Community
Conservation Plan,or other approved local,
regional,or state habitat conservation plan,
including the Cringe County Central and
Coastal Orange County NCCP1HCP.
4.4 Cultural Resources
Summary of Impacts
Thresholds: Although the Project would No Mitigation is Required N/A N/A N/A No Impact
demolish the existing building and remove
it form the property,the structure is not a
historical resource pursuant to Section
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■❑ ENVIRONMENTAL IMPACT REPORT ES.0 EXECUTIVE SUMMARY
LEVEL OF
711REHOLD MITIGATION MEASURES RESPONSIBLE MONITORING IMPLEMENTATION SIGNIFICANCE
PARTY PARTY STAGE AFTER
MITIGATION
150645 of its C'EQA (iuidelines. No
impact to historic reroutes, would occur
and mitigation is not mVimd.
Threshold b: Although unlikely,there is a MM 4.4-I Prior to the issuance of grading permits, Director of Community Construction Contractor Prion to the asuance of Less-Than-Sigrificaot
remove possibility that archaeological the Director of Community Development shall ensure Development grading permits,during Impact
resources could be encountered dining site that following provision is included on the grading ground disturbing
grading activities. Mitigation is required to plants), and the construction contractods)shall be activities
on. that potential impacts to required to comply with the provision.
archaeological resources, if unearthed
during emisnuefion activities,are reduced "If evidence of sbsurfue archaeological resowaes
to a level below significance, is found during construction, eadvation and other
construction activity shelf cease and the emsstredon
Implementation of Mitigation Measure MM earbacror,hal/contact the Cit-of Nexpmr Beach
4.4-1 would ensure that potential impacts to Com unit,Developa-1 Director. With direction
archaeological resources, if unearthed Jones dre Community Development Director, a
during remained n activities.are reduced go,l(d d archeologist sternng he Secreta,,of he
to a less than significant level. loterlor Prglossional Qualhcanon far Archeology
,half be remised to evaluate the disaov,,v ,to,an
,wussid,grading in the (remediate w n it, of the
frrd, flwananted,the orchoeo[ogist she/f mlfecr Me
resmrrce and prepare a technical report devnribing
the on uderofthe arvemigadon. The rest-level report
A.11 evaluate the sire including discussion of the
depth,nature,condition,and extent of the resource,
final renredimion recommendations, and cost
esdmate."
Threshold, Although unlikely,there is a MM 4.4-2 Prior w the issuance of grading permits, Director of Community Construction Connaetor Prior to the issuance of Less-Th.S,r ,iami
remote possibility that paleontological the Director of Conwuaity Development shall ensure Development Wading permit,during impact
resources could be encountered timing site that following provision is included on the grading gwroad disturbing
grading aetivitles. Mitigation is required to floods), and the construction caricaturist shall be activities
ensure that impacts to paleontological required to comply with the prevision.
resources,if unearthed during construction
activities, are reduced to a level below "11'evidenee of srrbsarfoce paleonrological resources
significance. i,found during eadorati on,excavadon,mrd other
construction activity in that area shall cease and the
Implementamet of Mitigation Measure MM constructimr contractor shall contact the City of
4.4-2 would ensure that potential impacts to Nwvpmt Beach Community Davelopme l Director.
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■❑ ENVIRONMENTAL IMPACT REPORT ES.0 EXECUTIVE SUMMARY
LEVEL OF
711REHOLD MITIGATION MEASURES RESPONSIBLE MONITORING IMPLEMENTATION SIGNIFICANCE
PARTY PARTY S'd1:L AFTER
MITIGATION
poleomologieal rs if uncerihed With direoriorz from he Comrmat, Deoelopment
during construction activities,are reduced Director, a qualified paleontologist meeting the
to a less then significant level. Secresmy of the Inmrior Profi ssro ml Qualification
Jim Paleoneology shall evaluate the fend. If
warramed, he p loam oki ho shall prepare atd
complete a standard Paleontological Resources
Mitigation Program I r the salvage and curmion of
idendfiedresaurces."
Tlaesholdd In the unlikely event drat No Mitigallovis Required. N/A N/A NA, Less-Than-Sigaificam
human rearrins are discovered during Impact
Project grading or other granted disturbing
activities,the Project would be requhed to
comply with the applicable provisions of
California Health and Safety Code§7050.5
and California Public Resources Code §
5097 et.seq. Mandatory compliance with
State law would eneme that In.remains,
if encountered,are appor maty treated and
would preclude the potential for sigrdficeat
impacts to human remains.
Threshold e: No signitaant tribal cultural No Mitigation is Required. N/A N/A N/A Leas-Thav-Sigai icaut
ones were identified to the Project site. Impact
Therefore, a leesahan-significant impact
would occur.
4.5 Geology and Soils
Summary of Impacts
Threshold a:The Project would not expose No Mitigation is Required. N/A N/A N/A Less-Than-Significant
people or structures to substantial adverse Impact
effects from earthquake fault rupture,
,emano-oclated ground fail., or
landslides. As with all properties in the
southern California region,the Project site
a subject to We,seismic ground shaking
associated with earthquakes.
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■❑ ENVIRONMENTAL IMPACT REPORT ES.0 EXECUTIVE SUMMARY
LEVEL OF
7HRENHOLD MITIGATION MEASURES RESPONSIBLE MONITORING IMPLEMENTATION SIGNIFICANCE
PARTY PARTY SI'%(:L AFTER
MITIGATION
Threshold by Lire Project would not result No Mitigation is Required. WA N/A N/A Less-Tian-Sigoificaut
in substantial soil erosion or the loss of Impact
topsoil. The Project Applicant is required
to obtain a NPDES Permit for construction
activities and adhere to a SWPPP as well as
SCAQMD Rule 403-Fugitive Dust during
Project constrieficar activities. With
..damry compliance to these regulatory
requirements.the potential for soil erosion
or the loss cf topsail on the Project site
would be minimized,as the areas disturbed
during consuucrion would be landscaped or
covered with impervious surfaces and
drainage mn the Project site would be
controlled through the m omrm
s of a s
drain rysrem. Furthermorethe Project is
required by law b implement a WQMP
during long-tens operation, which would
preclude substantial soil erosion or the loss
of topsoil during long-term apcommi of the
Project.
Threshold c: During excavation for the MM 4.5-I Slopes created during subsurface Building Official for the Constrnction Contractor Prior to the issuance of a Less-Than-Significant
subterranean parking garage,there may be excavations associated with the Project's construction City of Newport Beach grading permit,during Impact
local seepage and wet sands within the process shall be shared in accordance with OSHA (or his/her designee) subsurface excavation
filFterrace and terms,&wdrock contacts. exuarvatown safety regulations (Title 29 Code of activities
Locally, these slopes could slough oe Federal Regulatime,Part 1926.650.652[Subpar P])
potentially slump along the counsel, and to the sarisfacuoa of the City of Newport Beach
would N subject to instability during Building Official. Prior to the issuance of grading
Project excavation. With implementation of permit,the Building Official or his/her designee shall
Mitigation Measure MM 4.5-1 the Project ensure that the grading plan indicates the methods by
would result in less-than-significant impacts which adequate shoring will occur. The shoring
associated with unstable soils during methods must ensure that the subsurface excavation
cmnstroetion. will not slough or slump. The Construction
Contractor shall implement the shoring requirements
The implementation of the mandatory throughout the subsurface excavation period and
requirements of the CBSC and the allow inspection of the shoring method by the City of
recommendations identified in the Project's I Newport Beach.
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47 72
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■❑ ENVIRONMENTAL IMPACT REPORT ES.0 EXECUTIVE SUMMARY
LEVEL OF
711REH(lLD MITIGATION MEASURES RESPONSIBLE MONITORING IMPLEMENTATION SIGNIFICANCE
PARTY PARTY S'I'O:L AFTER
MITIGATION
Geotechnical Feasibility Repair (required
through City-imposed conditions of
approval on the Pooled)would ensure that
impacts associated with unstable geologic
units during long-term Project operation
would be less than significant.
Threshold d: There is a potential for MM 4.5-2 Expansive soils shall not be present as fill Building Official for the Construction Cismocmr Prior to the issuance of a Leas-Than-Significant
expansive soils to be encountered during the material below the building slab and fbotings. City reffoewpon Beach building permit,during Impact
Project's grading operation. with the During the property's site preparation and grading (or hWher designee) subsurface excavation
incorporation of Mitigation Measure MM phases,expansive soils shall be mixed with other soil activities
4.5-2,as well as the mandatory,compliance material to provide a uniform blend of material,
with CBSC requmements, the impacts compacted to a commortan of 90 percent relevant
associated with expansive soils would he compaction,to the satisfaction ofthe City of Newport
reduced to less than significant. Beach Building Official. Prior to the issuance of a
grading permit, the Building Official or his/her
designee shall ensure that the grading plan indicates a
subsurface soil examem that is non-expansive and
command to at least 90 percent The Construction
Contractor shall implement the comm eats
throughout the site preparation and grading process
and allow inspection of grading by the City of
Newport Beach.
Threshold e:The Project would not install No Mitigation is Required. N/A N/A N/A No Impact
septic tanks o alternative wastewater
p
disosal systems` Accordingly,no impact
would occur.
4.6 Hazards and Hazardous Materials
Sammary ofleapacte
Thresholdaandb: Based on the findings of No Mitigation is Required. N/A N/A N/A Less-Than-Significant
a Phase I ESA and Phase Il ESA conducted Impact
for the Project sire,the property does rot
contain any environmental hazards that
could pose a significant threat to human
health or the environment. The existing
building that would be demolished and
removed from the site as part of the Project
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■■ 150 NEWPORT CENTER
■❑ ENVIRONMENTAL IMPACT REPORT ES.0 EXECUTIVE SUMMARY
LEVEL OF
711REHOLD MITIGATION MEASURES RESPONSIBLE MONITORING IMPLEMENTATION SIGNIFICANCE
PARTY PARTY SI'%(;L AFTER
MITIGATION
could potentially contain asbestos
containing materials and lead based Paint,
but compliance with mandatory regulatory
requirements during the demolition and
removal process would ensure that impacts
would be less than sigwti.ndrc
Threshold c. The Project would not emit No Mitigation is Required: N'A N/A N/A No Impact
Industrious emissions or handle hazardous or
acutely hazardous materials,substances,or
waste within one-quarter mile of an crusting
or proposed school.No impact would occur
add mitigation is at required.
Tlmeshold d: The Project site is not No MiNgatlonis Required. MA N/A NA No Impact
identified on a list compiled pursuant to
Government Code Section 65962.5;
therefore, We P jest hes no potential to
create a significant hazard to the public or
comer[ as the result of listed
properties.
Threshold r The Project site is not located No Mitigation is Required. N/A N/A N/A Les.-T1NmSignifcam
or mr,airport safety zone;the Project would Impact
that not significantly expose people
residing a working in tic area to safety
h.ds associate with operations at John
Wayne Airport.
Threshold t:No private airstrips are located No Mitigation is Required. WA N/A N/A No Impact
in the vicinity of the Projen site;therefore,
the Project has no potential to result in a
sefery hazard for people residing or workldg
in the area caused by private airsMps.
Threshold aThe Project would not impair No Mitigation is Required. MA N/A N/A Less-Than-Significant
implementation of or physically interfere Impact
with an adopted emergency response plan
or emergency evacuation plan.
Thresholdh;The Project site is not located No Mitigation is Required. N/A N/A N/A No hrrpact
is wildladd f Lazard area. The P jec[
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49 8o
■■ 150 NEWPORT CENTER
■❑ ENVIRONMENTAL IMPACT REPORT ES.0 EXECUTIVE SUMMARY
LEVEL OF
7I1REHOLD MITIGATION MEASURES RESPONSIBLE MONITORING IMPLEMENTATION SIGNIFICANCE
PARTY PARTY STAGE AFTER
MITIGATION
would thus not expose people or structures
to a significant risk of loss,injury,or death
involving wildland fires.
4.7 Land Use Planning
Threshold a: The proposed Project would No Mitigatlan is Required. N/A N/A N/A No Impact
not physically divide an established
community.
Threshold b: Although the Project would No Mitigation is Required. N/A N/A N/A Lass-Than-Sigoificavt
change the land use designation of the Impact
Project site fiom vommereial to maidemiaL
the land use change would not result in any
significant and unavoidable impacts to the
environment. Thus,the Project would not
conflict with an applicable land use plan,
policy, or regulation adopted for the
purpose of avoiding or mitigating a
environmental effect.
Threshold c: No habitat conservation ppm.:
lans No Museum is Required. N/A N/A N/A No Impact
on natural co unity co rvatlon plans
are applicable to the Pmjectesite,thus,no
impact would occur.
4.8 Noise
Threshold x Noise levels during MM 4.8-1 Construction staging before 7:00 a.m. City ofNewpon Building Construction Contractor During construction Less-Than-Significant
construction would Out significantly impact shall only be Founded with the express written Official,Construction activities Impact
olisite properties sari construction mmosit of the Building Official. Residents of the Contractor
activities are required m comply with the Oranville community shall be notified in advance of
provisions specified in Municipal Code§ the proposed construction hours and sound blankets
10.28 (Loud and Unreasonable Noise). shall be installed ou-site to minimize noise during
However, because construction activities these hours. A sound blanket is a sound-absorbing
re proposed to occur in only morning material that can be hung on construction housing or
hews an two days that would fall outside of other surface located between the noise source and
rite time of day provisions for construction to reduce noise levels at the receiver
activities specified in the City's Noise location.receiver Back-up slams an nswction vehicles
Ordinatce § 10.28.040 (Construction shall be disabled when construction vehicles m
Activity-Noise Regulations), potentially I operating on the Project site before 7:00 a.m.
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■❑ ENVIRONMENTAL IMPACT REPORT ES.0 EXECUTIVE SUMMARY
LEVEL OF
711RENHOLD MITIGATION MEASURES RESPONSIBLE MONITORING IMPLEMENTATION SIGNIFICANCE
PARTY PARTY SI'%(:L AFTER
MITIGATION
ao,arirzm impacts could oc on those
twodays. Mitigation Measuv,]v1M4S-i MM 4.&2 The construction contractor shall inspect City ofNewpen Building Construction Contractor Daringconstructua Less-Than-Sigtdfcant
and MM 4.8-2 would reduce this impact to all motorized construction equipment operating on Official,Construction activities Impact
below a level of significance. the site monthly,to ensure the proper installation of Contractor
noise-attenuating mvMo.. Inspection records shall
Operational noise associated with be made available to the City of Newport Beach upon
residential use of the property would be less request.
Nan significant. Also,because the Project
would reduce the total number of average
daily vehichar trips traveling to and from
the site by 614 hips,compaoxl to existing
conditions,vehicular-related noise would be
less than,sigNficant.
Threshold b: Impacts associated with No Mitigation is Required N/A N,A N/A Less-Then-Significant
excessive groundbome vibration or lmpact
groundbome noise levels during Project
construction and Icng-term.,,at..would
be less than significant.
Threshold c: The Project would not result No Mitigation is Required. WA N/A N/A Less-Than-Significant
in a substantial permanent Increase in Impact
ambient noise levels in Ne Project vicinity
above levels existing without the Project.
Threshold d: Construction noise would be MM 4.8I and MM 4.8-2 apply(see above) MM 4.8-1 and MM 4.8-2 MM 4.8-1 and MM 4.8-2 1,11,14.8-1 and MM 4.8-2 Less-Than-Significant
generated outside of the he.specified in apply(see above) apply(see above) apply(see above) Impact
Ne City's construction noise ordicance for
two days during Ne construction period,
resulting in a potentially significant impart.
Threshold e:The Project site is located out No Mitigation is Required. N/A N/A N/A No hrrpact
outside of Ne 60 dBA CNEL noise contour
for Jahn Wayne Airport. Thus.the Project
would not expose people residing o
working in Ne Project area to excessive
airport-related not.levels.
Threshold f:The Project site is not located No Mitigation is Required. NFA N/A. N/A No Impact
near a private sirsMp;thus,here would be
no import due to the exposure of people
Lead Agency: City of Newport Beach SCH No. 2016011032
Page ES-21
51 22
■■ 150 NEWPORT CENTER
■❑ ENVIRONMENTAL IMPACT REPORT ES.0 EXECUTIVE SUMMARY
LEVEL OF
7HREHOLD MITIGATION MEASURES RESPONSIBLE MONITORING IMPLEMENTATION SIGNIFICANCE
PARTY PARTY STAGE AFTER
MITIGATION
esiding or working in the area to excessive
noise levels associated with private
airships.
4.9 Transportation&Traffic
Threshold a:The Pr ject would reduce the No Mitigation is Required. N/A N/A N/A Less-Thau-Siguificaut
total number of average daily vehicular trips Impact
traveling to and from the site by 616 trips,
compared to existing conditions. Thus,the
Project would not conflict with an
applicable plan, ordinance or polio
establishing measures of etfectivemss for
the performance of the moratorium system.
Threshold b:The Project would not conflict No Mitigation is Required. N/A N/A N/A No Impact
with the OCTA CMP's level of service
standards or travel demand measures. No
impact would occur.
Threshold a There are no components of No Mitigation is Required. N/A WA NIA No Impact
the Project that would result in an increase
in traffic levels or result to substantial safety
risks.No impact would occur.
Threshold d: The Project would not No Mitigation is Required. N'A N/A WA Less-Than-Significant
substantially increase boards due to a Impact
design feanue or incompatible uses. There
may be the need for temporary lane cloomes
for Anacapa Drive and Newport Center
Drive to install tiebacks along the Newport
Center Drive and Anacapa Drive frontages,
however,these temporary impacts would be
less than significant.
Threshold e: The Project would result in No Mitigation is Required. N/A N/A N/A No Impact
adequate emergency access and would not
impact a designated emergency access
more No impact to emergency access
would recut.
Threshold f:The Project would not conflict No Mitigation is Required. NIA N/A N/A No Impact
with adopted policies,plans, or programs
Lead Agency: City of Newport Beach SCH No. 2016011032
Page ES-22
52 23
■■ 150 NEWPORT CENTER
■❑ ENVIRONMENTAL IMPACT REPORT ES.0 EXECUTIVE SUMMARY
LEVEL OF
7 HRE HOLD MITIGATION MEASURES RESPONSIBLE MONITORING IMPLEMENTATION SIGNIFICANCE
PARTY PARTY SI'%(:L AFTER
MITIGATION
ragardiog aa.uit, bicycle, or pedestrim
facilities. No impact world cecor.
Lead Agency: City of Newport Beach SCH No. 2016011032
Page ES-23
53 24
Planning Commission Resolution No. ####
Page 20 of 34
Exhibit "C"
General Plan Land Use Map
Amendment
03-03-2015
54
Q PI r H
`wV SAN CL EMENTE U
DR
RM
A Q
m
D Z
> CO-R m I MU-H3
CENTER
RM CO-R G O
�G QQ-
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D MU-H3 /
co
MU-H3
SAN U-H
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CO-R
®Z CO- O-R
0 111
U-H3/P C/�YC CE
/ OS
m �z
CO-G o
PF Q-
�� - CO-R
0 500 1,000
GP2014-003 (PA2014-213) Feet
General Plan Amendment e
150 Newport Center Drive
Document Name:PA2014-213_GP2011-011_Reso_Exhibit
EXHIBIT A
GENERAL PLAN AMENDMENT NO GP2014-003
Consists of:
1. Amending Table LU2 of the Land Use Element of the General Plan to include the
following modification to Anomaly No. 35 and one new anomaly:
Table
Anomaly Statistical Land Use Development Development Additional
Number Area Designation Limit(sQ Limit Other Information
35 L-1 CO-R x99,095
190,595
82 L-1 RM 45 dwelling units
2. Amending the Land Use Map of the Land Use Element to identify the locations of
Anomaly Nos. 35 and 82 and to change the designation of the existing 1.26-acre
project site at 150 Newport Center designated as CO-R (Regional Commercial
Office, Anomaly 35) to RM (Multiple Residential, 49 du).
50
Planning Commission Resolution No. ####
Page 21 of 34
Exhibit "D"
Zoning Map Amendment
03-03-2015
57
PC 19 J^
SAN U
P 6
OR PC 56
CENTFR
C 54
PC 56
PC 8
�G Q2
P
Roy C 56
SPN�P
m
C D PC 56 /
U) PC 56
PC 47 -�
SqN 'PC 56
rd I
• • •1
C2
Q�OR
W C-6
� OR
PC Z C OR
47 A w
c) OR
PC 47 OR
PC 40
PC 17 R
0 500 1,000
CA2014-008 (PA2014-213) Feet
Code Amendment
150 Newport Center Drive
Document Name:PA2014-213_CA2014-008_Ord_Exhibit -
Planning Commission Resolution No. ####
Page 22 of 34
Exhibit "E"
Planned Community Development Plan
03-03-2015
159
150 NEWPORT CENTER
Planned Community Development Plan
Date: August 10, 2016
Ordinance No. 2014
Adopted 12015
00
150 Newport Center Planned Community
Page 12
TABLE OF CONTENTS
1.0 Introduction and Purpose 3
2.0 Land Use and Development Regulations 4
2.1 Architectural Design 4
2.2 Permitted Uses 5
2.3 Building Setbacks 5
2.4 Density: Number of Units 6
2.5 Floor Area 6
2.6 Grade for Purposes of Determining Height 6
2.7 Height 7
2.8 Landscaping and Irrigation 7
2.9 Lighting 9
2.10 Mechanical Equipment 9
2.11 Open space 9
2.12 Parking 10
2.13 Signs 11
2.14 Site Walls 11
2.15 Trash Service and Container Storage 11
2.16 Construction Requirements 11
a. Archaeological/Paleontological
b. Building Codes
c. Grading
d. Sewer Service
e. Storm Water Management
f. Telephone, Gas and Electrical Service
g. Water Service
3.0 Site Development Review 13
3.1 Purpose 13
3.2 Application 13
3.3 Design (Elevations) and Site Development of Building 13
LIST OF EXHIBITS
Exhibits Name Exhibit Number
Conceptual Site Plan &Project Summary A
Title Constraints Survey B
150 Newport Center Planned Community
Page 13
1.0 INTRODUCTION AND PURPOSE
150 Newport Center Planned Community Development Plan (PC) is composed of 45
condominium units totaling 141,013 square feet of gross floor area. The project is located
at the southwest intersection of Newport Center Drive and Anacapa Drive in Newport
Center. The vision presented in the conceptual plan is for a luxury residential enclave
intended to integrate a sophisticated urban lifestyle with a timeless building design.
The unit mix includes 15 residential townhomes on levels 1 & 2, 26 residential flats on
Levels 3 through 5 and four penthouses on Level 6. Level 6 will also have a club room
with fully appointed kitchen, fitness room/spa and a swimming pool. The project is
designed for three levels of parking below grade. Level B-1 is partially at grade on the
southern edge to allow tenant access and trash loading. Moving van access and general
delivery will occur at the main building entry off of Anacapa Drive. Every unit will have
a private 2-car garage located within the basement levels.
The PC identifies land use relationships and associated development standards for the
particular district. To that end, it coordinates and complements the broader scale and
massing of the Newport Center area. The PC ensures a broader coordination and
consistency with the surrounding neighborhood, to include a higher level of architectural
quality supporting the Newport Center environment along with pedestrian connectivity.
The proposed PC includes a specific set of standards and procedures for implementation
and continuation of dwelling units within Newport Center while ensuring substantial
compliance with the spirit and intent of the Zoning Code. The PC ensures the following
site development review objectives are met:
1. Ensure consistency with General Plan policies related to the preservation of
established community character, and expectations for high quality
development;
2. Respect the physical and environmental characteristics of the site;
3. Ensure safe and convenient access and circulation for pedestrians and
vehicles;
4. Allow for and encourage individual identity for specific uses and structures;
5. Encourage the maintenance of a distinct neighborhood and/or community
identity;
6. Minimize or eliminate negative or undesirable visual impacts;
7. Ensure protection of significant views from public right(s)-of-way in compliance
with Section 20.30.100(Public View Protection);
8. Allow for different levels of review depending on the significance of the
development project(Newport Beach, 2015a).
02
150 Newport Center Planned Community
Page 14
2.0 LAND USE AND DEVLOPMENT REGULATIONS
Whenever the regulations contained in the PC conflict with the regulations of the Newport Beach
Municipal Code, the regulations contained in the PC shall take precedence. The Newport Beach
Municipal Code shall regulate all development within the PC when such regulations are not
provided within the PC Regulations.
The following development standards shall apply to the residential condominium units.
2.1 ARCHITECTURAL DESIGN
The 150 Newport Center design was inspired by one of the most architecturally renowned
buildings in New York City: Ralph Lauren's 5th Avenue flagship store. Newport Center Villas is
conceived as two classic and stately enclaves that are linked together via a modern glass and
metal bridge which contain an atrium entry and lobby. The enclaves are perceived as the solid
and the bridge as the void. Architecturally, the enclaves are proportioned classically with a
defined base, middle, and top that is reinforced by cornices and belt bands. The elevation is
presented through the use of reduced massing offsets and subtle variations in the terraced roof
line.
The building's material palate consists of warm neutrals and the building facade is compatible
with the surrounding development in Newport Center. The design will complement, enhance,
and be compatible with the adjacent retail and office properties. In keeping with this philosophy,
the exterior will be comprised predominately of a pre-cast concrete fagade, stainless steel
finishes and glass. Massing offsets, variations of roof line, varied textures, recesses, articulation
and design accents on the elevation are integrated to enhance the expression of a unique and
sophisticated architectural style.
Two-story townhome residences encompass the ground level and second story of the building
with large front porches and resident entries wherein a direct physical connection is established
with the public realm. Fenestration of the enclaves is developed around the "California Coastal"
view of indoor — outdoor living. Openings above level 2 have the ability to slide open into
recessed pocket allowing for the full aperture of fenestration to engage with interior living.
Connections to the public reahn are further reinforced via a pedestrian boardwalk, and a social
gathering space at the comer of Anacapa Drive. A dog run is provided for the residents on the
ground level at the northwest corner of the project.
The exterior landscaping will further enhance the feel of a luxury lifestyle at the immediate
intersection of Anacapa and Newport Center Drive. The crosswalks at the corner of Newport
Center Drive and Anacapa Drive shall enhance the visual connection to the adjoining office,
entertainment and medical districts. Along Anacapa Drive, the project will provide resident
access into a double driveway served by a luxurious lobby.
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150 Newport Center Planned Community
Page 15
2.2 PERMITED USES
a. Condominiums (Multi-Family Residential).
b. On-site recreational facilities, valet stations, conference rooms, wine storage, separate
dedicated storage areas, and other structures ancillary to residential uses.
c. Telecommunications facilities are permitted in accordance with Chapter 20.49 (Wireless
Telecommunications Facilities) of the NEMC.
d. Land uses that are not listed above are not allowed, except as provided by Chapter
20.12(Interpretation of Zoning Code Provisions) of the NBMC or as required by State Law.
e. Temporary uses may be allowed only upon approval of a limited term permit pursuant to
Section 20.52.040 (Limited Term Permits) of the NBMC.
2.3 BUILDING SETBACKS
a. Above grade (as shown on the preliminaryrg adine1p an)
Anacapa Drive 22.5 feet (including a 3-foot pedestrian walkway
easement)
Newport Center Drive 24 feet
Western property line 14 feet
Southern property line 22 feet (Including a 5-foot pedestrian walkway
easement)
b. Below grade (as shown on the preliminary grading1p an)
Anacapa Drive 15 feet
Newport Center Drive 15 feet
Western Property Line 0 feet for podium at Level 1
3 feet for basement walls
Southern Property line 7 feet
Decorative architectural features such as roof overhangs, brackets, cornices, and eaves may
encroach up to 30 inches into a required setback area, provided that no architectural features
shall project closer than twenty-four inches from a side property line and a minimum vertical
clearance of at least eight feet above finished grade is maintained.
04
150 Newport Center Planned Community
Page 16
2.4 DENSITY: NUMBER OF UNITS
The maximum allowable number of condominium residential unit shall be 45 (35.7 units/acre).
2.5 FLOOR AREA
a. Buildine Area
The maximum gross floor area limit for the development is 141,013 gross square feet at a
floor area ratio (FAR) of 2.58:1. This results in a floor area limit that is 2.96 times the
buildable area (lot area less the required building setbacks).
Gross Floor Area Definition:
The following areas shall be included in calculations of gross floor area:
1. The surrounding exterior walls
2. Any interior finished portion of a structure that is accessible and that measures more than
four feet from finished floor to ceiling.
The following areas shall be excluded:
1. Stairwells and elevator shafts above the first level.
2. The sixth floor pool area.
3. Parking structures associated including private garages.
b. Gross Floor Area per Unit. Residential uses are measured on a per unit basis.
i. Townhomes (floors 1-2):
2,416 square feet minimum
3,455 square feet maximum
ii. Units on floors 3 through 5:
1,645 minimum
3,608 maximum
iii. Penthouses (floor 7):
2,286 minimum
3,570 maximum
2.6 GRADE FOR PURPOSES OF DETERMINING HEIGHT
Grade for the purposes of determining height = 164 feet NAVD88 datum
615
150 Newport Center Planned Community
Page 17
The site drops from an elevation of 170 feet above mean sea level at the immediate comer of
Newport Center Drive and Anacapa Drive to 159.5 feet above mean sea level at the southwest
comer of the site. The average grade plane is 164'0". The heights are measured from the average
of the existing grade as shown on the survey/topographical map submitted as part of the
submission to the city.
2.7 HEIGHT
The building height shall not exceed 55 feet from the average grade (164 feet NAVD88 datum)
of the site. The resulting overall building height is 55 feet (219 feet NAVD88 datum) as
measured from the average grade plane to top of the roof deck. The height of the open area
between the enclaves is 43 feet 6 inches above the average height of the site or 207 feet 6 inches
above mean sea level.
Rooftop appurtenances are permitted and may exceed the maximum building height by 6 feet up
to 225 feet NAVD 88 datum. Rooftop appurtenances include, but are not limited to, mechanical
equipment, stairwell and elevator shaft housing, antennae, window washing equipment, and
wireless communication facilities. Rooftop appurtenances shall not exceed 30 percent of the
overall roof area and shall be focused toward the interior of the building footprint adjacent to the
elevator override. Rooftop appurtenances must be screened from view; the height of rooftop
appurtenances shall not exceed the height of the screening. Supports for window washing
equipment are permitted, and are not required to be screened from view. Rooftop appurtenances
within the 6-foot limitation are subject to the review and approval of the Planning Division.
Architectural features may exceed the maximum building height up to 2 feet. Architectural
features include the building rooftop parapet and other decorative rooftop features defined as
visually prominent or formally significant elements of a building that express its architectural
language and style in a complementary fashion. Architectural features should be logical
extensions of the massing, details, materials, and color of the building which complement and
celebrate its overall aesthetic character. Such features must be an extension of the architectural
style of the building in terms of materials, design and color.
2.8 LANDSCAPING AND IRRIGATION
A minimum of 15 percent of the lot area shall be landscaped (8,203 square feet). Landscaping
and irrigation shall be provided in all areas not devoted to structure, driveways, walkways, and
private patios to enhance the appearance of the development, reduce heat and glare, control soil
erosion, conserve water, screen adjacent land uses, and preserve the integrity of the PC.
Site landscaping and irrigation will be designed and planted in accordance with Chapter 20.36
(Landscaping Standards) of the Newport Beach Municipal Code (NBMC) and Chapter 14.17
(Water-Efficient Landscaping) of the Newport Beach Municipal Code. Plants shall be adapted to
the coastal climate of Newport Beach and appropriate to the specific soil, topographic, and
sun/shade conditions of the project site. Drought-tolerant plants shalt be used to the maximum
extent practicable. Plant species having comparable water requirements shall be grouped together
for efficient use of irrigation water. All plant materials shall conform to or exceed the plant
00
150 Newport Center Planned Community
Page 18
quality standards of the latest edition of American Standard for Nursery Stock published by the
American Association of Nurserymen, or the equivalent. Plant selection shall be harmonious to
the character of the project and surrounding projects and shall not be listed as an invasive species
by the California Invasive Plant Council.
a. Minimum Landscape Requirements:
1. Landscaping shall incorporate a street tree species along Newport Center Drive and Anacapa
Drive (Pink Trumpet, "Tabebuia Impetiginosa" or other tree to the satisfaction of the General
Services Division). The same species street tree shall be planted on both sides of Anacapa
Drive, north of the drive entry (upon the adjacent property owner's approval).
2. The Anacapa Drive parkway shall be maintained and landscaped to complement the existing
on-site landscaping. Landscaping and irrigation shall consist of a combination of trees,
shrubs, and groundwater and hardscape improvements.
3. The landscaped island at the southern entry within the ingress/egress easement shall be one
continuous landscape area as shown on the attached Exhibit A (upon the underlying property
owner's approval).
4. Landscaping shall be located so as not to impede vehicular sight distance to the satisfaction
of the City Traffic engineer.
5. Planting areas adjacent to vehicular entrances shall be protected by a continuous concrete
curb or similar perimeter barrier.
6. The ground floor landscape area shall include a 1,038 square feet dog run for use by the
occupants of the project.
7. Landscape areas shall provide a minimum width dimension of 3 feet to provide adequate
planting area.
8. Evergreen planting a minimum of 5 feet high shall be used to screen the podium wall along the
eastern property line.
9. All landscape materials and irrigation systems shall be maintained in accordance with the
approved landscape and irrigation plans. All landscaped areas shall be maintained in a
healthy and growing condition in accordance with the NBMC 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.
10. Landscape planting and irrigation plans and specifications shall be submitted by the applicant
for review and approval by the Building Division or Planning Division prior to the issuance
of a building permit.
b. Irrigation Guidelines
An irrigation system shall be installed and shall incorporate appropriate locations, numbers, and
types of sprinkler heads and emitters to provide appropriate amounts of water to all plant
materials. Application rates and spray patterns shall be consistent with the varying watering
requirement of different plant groupings.
Irrigation systems and controls shall include technology that minimizes over watering by either:
(a) directly measuring soil moisture levels, plant types, and soil types and adjusting irrigation
07
150 Newport Center Planned Community
Page 19
accordingly, or, (b) receiving weather information at least on a daily basis via satellite or similar
transmission and adjusting irrigation accordingly. The irrigation system shall be designed so as
to prevent over-watering and minimize overspray and runoff onto streets, sidewalks, driveways,
buildings, fences, and window consistent with water conservation and pollution run-off control
objectives.
Should reclaimed water infrastructure be constructed along Newport Center Drive, the site's
existing potable irrigation system shall be converted and connected to said infrastructure within
one year of its availability.
2.9 LIGHTING
All new outdoor lighting shall be designed, shielded, aimed, located and maintained to shield
adjacent uses/properties and to not produce glare onto adjacent uses/properties. Lighting plans
shall be prepared in compliance with Chapter 20.30.040 (Outdoor Lighting) of the NBMC. All
lighting and lighting fixtures that are provided shall be maintained in accordance with the
approved lighting plans. Prior to the issuance of building permits, the plans shall demonstrate that
the exterior fagade shall utilize low reflective building materials and window glazing tint to reduce
nighttime light and glare.
Light fixtures on buildings shall be full cut-off fixtures. Light spillover may not exceed one
foot-candle at the subject property line. Lighting of building interior common areas, exteriors
and parking entrances shall be developed in accordance with City Standards and shall be
designed and maintained in a manner which minimizes impacts on adjacent land uses. Nighttime
lighting shall be limited to that necessary for security.
The plans for lighting shall be prepared and signed by a licensed electrical engineer and shall be
subject to review and approval of the Community Development Director or their designee. If in
the opinion of the Director existing illumination creates an unacceptable negative impact on
surrounding land uses or sensitive habitat areas, the Director may order the dimming of light
sources or other remediation upon finding that the site is excessively illuminated.
2.10 MECHANICAL EQUIPMENT
Roof-top mechanical equipment shall not exceed 6 feet above the maximum height of the
building and shall comply with Section 20.30.020 (Buffering and screening) of the NBMC. All
mechanical appurtenances on building roof tops and utility vaults shall be screened in a manner
meeting the approval of the Director of Community Development or their designee.
All new mechanical appurtenances (e.g., air conditioning, heating, ventilation ducts, exhaust
vents, telecom antennas & support equipment, swimming pool and spa pumps, filters,
transformers, utility vaults, and emergency power generators) shall be screened from the public
view and adjacent land uses. The enclosure design shall be approved by the Community
Development Department. All rooftop equipment shall be architecturally treated or screened
from off- site views in a manner compatible with the building materials prior to final building
02
150 Newport Center Planned Community
Page 110
permit clearance. The mechanical equipment shall be subject to sound rating in accordance with
the Chapter 20.30.20 (Buffering and Screening) of the NBMC.
2.11 OPEN SPACE
a. Common Outdoor Space
A minimum of 75 square feet per dwelling unit (3,375 square feet for 45 dwelling units) of
common open space shall be provided. Common outdoor space shall be provided either at grade,
podium level, or roof level. Common outdoor space areas shall have a minimum dimension of 10
feet. A minimum of 10 percent of the common outdoor space must be landscaped. All common
outdoor space must be accessible to all residents.
Common outdoor space consists of land area within the residential development that is not
individually owned or dedicated for public use that is designed, intended, and reserved
exclusively for the shared enjoyment or use by all residents and their guests. Common outdoor
space may be active or passive. Illustrative examples include areas of scenic or natural beauty,
barbecue areas, landscaped areas, play areas, swimming pools, tennis courts, or turf areas.
b. Common Indoor Space
The building shall provide at least one community room of at least 500 square feet available for
use by all residents of the project. The area should be located adjacent to, and accessible from,
common outdoor space. This area may contain active or passive recreational facilities or meeting
space, and must be accessible through a common/public area.
c. Private Open Space
Private open space shall be a minimum of 30 square feet per dwelling unit (6-foot by 5-foot
minimum). At least 50 percent of all dwelling units shall provide private open space, on a
balcony, patio, or roof terrace. Balconies should be proportionately distributed throughout the
project in relationship to floor levels and sizes of units. Qualifying private open space areas shall
be permanently open on one full side.
Private open space consists of an outdoor or unenclosed area directly adjoining and accessible to
a dwelling unit, reserved for the exclusive private enjoyment and use of residents of the dwelling
unit and their guests (e.g., balcony, deck, porch, terrace, etc.). Boundaries are evident through the
use of fences, gates, hedges, walls, or other similar methods of controlling access and
maintaining privacy.
2.12 PARKING
Parking to the project shall be underground and not visible from the public right-of-way and
surrounding area. Parking spaces, driveways, maneuvering aisles, and turnaround areas shall be
kept free of dust, graffiti, and litter. All components of the parking area including striping,
paving, wheel stops, walls, and lighting of the parking area shall be permanently maintained in
O9
150 Newport Center Planned Community
Page 111
good working condition. Access, location, parking space and lot dimensions, and parking area
improvement shall be in compliance with the Development Standards for Parking Areas Section
of the Newport Beach Municipal Code. All required parking shall be provided on-site.
Two (2) enclosed private parking spaces shall be provided for each dwelling unit. One half(1/2)
guest parking space shall be provided per unit for a total of 23 guest parking spaces plus 2 ADA
stalls. Each two-car garage shall provide minimum clear interior dimensions of 17 feet 6 inches
in width by 19 feet in depth and shall be maintained so that it is accessible to vehicles.
Guest parking spaces shall maintain a minimum width of 8 feet 6 inches in width by 17 feet in
depth.
All resident and guest parking spaces shall be maintained clear of obstructions and available for
the parking of vehicles at all times. Vehicle parking and maneuvering areas shall be restricted to
the operation, maneuvering and parking of operable vehicles and shall not be used for storage of
any kind including the long term storage of vehicles not in regular use.
2.13 PODIUM WALLS
Podium walls shall not exceed 10 feet in height measured from existing grade as shown on the
title constraints survey. (Refer to Exhibit A-Site Plan and Project Statistics attached.)
2.14 SIGNS
If three (3) or more signs are proposed for the development, a comprehensive sign program
application for the Newport Center Villas shall be submitted for review and approval by the City
of Newport Beach Community Development Director or their designee. Sign allowance and
standards will be in accordance with Chapter 20.42 (Sign Standards) of the NBMC.
2.15 SITE WALLS
Walls and hedges shall be in accordance with the NBMC except as shown on the Site
Development Review plans. Where a nonresidential zoning district abuts a residential zoning
district, consideration of a landscape buffer shall be reviewed as part of the Site Development
Review.
2.16 TRASH SERVICE AND CONTAINER STORAGE
Trash disposal service will be provided by CR&R(or other provider) as contracted by the City of
Newport Beach and shall be subject to applicable regulations, permits and fees as prescribed by
the city.
Trash container storage and bins shall be located within the basement level parking structure in
an area to be designed and engineered for odor control and for access for pick-up. Common trash
bins provided shall be a minimum of 192 square feet for Trash and Recycling in accordance with
Chapter 20.30.120 (Solid Waste and Recyclable Materials) of the NBMC. The bins will be
70
150 Newport Center Planned Community
Page 112
brought by a scout truck from their regular storage areas in the basement to the southerly
residential access drive for pick-up by regular trash trucks. Trash pick-up and staging shall not
block vehicular access through the southerly access drive. Trash pick-up and loading is not
permitted within the Anacapa Drive right-of-way.
2.17 CONSTRUCTION REQUIREMENTS
a. Archaeological/Paleontological
Grading of the site is subject to the provisions of the City Council policies K-4 & K-5 regarding
archaeological and paleontological resources.
b. Building Codes
Construction shall comply with applicable provisions of the California Building Code and the
various other mechanical, electrical and plumbing codes related thereto as adopted by the
NBMC.
c. Grading
Grading and excavation of the development area shall be conducted and undertaken in a manner
both consistent with grading manual standards and ordinances of the City of Newport Beach and
in accordance with a grading and excavation plan approved by the City of Newport Beach
Building Division.
d. Telephone, Gas and Electrical Service
All "on-site gas lines, electrical lines and telephone lines shall be placed underground.
Transformer or terminal equipment shall be visually screened from view from streets and
adjacent properties.
e. Sewage Service
All sewer lines shall be designed in accordance with the Utilities Manger approval.
f Storm Water Management
The project shall adhere to the Water Quality Management Plan (WQMP) approved in
conjunction with the issuance of building permits. Drainage and water quality assurance measure
will be implemented as per the City Public Works and Municipal Separate Storm Sewer System
(MS4) requirements. Development of the property will be undertaken in accordance with the
flood protection policies of the City.
g. Water service
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150 Newport Center Planned Community
Page 113
Water service to the site will be provided by the City of Newport Beach and is subject to
applicable regulations, permits and fees as prescribed by the City. The project shall provide the
infrastructure for Fire Protection Water Service and Domestic water. Each dwelling unit shall be
served by its own individual water meter. Each water meter shall be served and installed in
accordance with the Public Works Department approval.
Should reclaimed water infrastructure be constructed along Newport Center Drive, the site's
existing potable irrigation system shall be converted and connected to said infrastructure within
one year of its availability.
72
150 Newport Center Planned Community
Page 114
3.0 SITE DEVELOPMENT REVIEW, SD2014-006 (PA2014-213)
3.1 PURPOSE
The purpose of the Site Development Review (SDR) process is to ensure new development
proposal within the 150 Newport Center Planned Community Development are consistent with
the goals and policies of the General Plan, and provisions of the Planned Community
Development Plan.
3.2 APPLICATION
Prior to the issuance of building permits for the site development, a SDR application shall be
required for the 150 Newport Center Planned Community Development in accordance with
Section 20.52.080 (Site Development Reviews) of the NBMC.
3.3 DESIGN (ELEVATIONS) AND SITE DEVELOPMENT OF BUILDING
The SDR shall be part of this PC and shall be reviewed concurrently with the PC. The submitted
site pans and elevations shall be part of this application.
73
Planning Commission Resolution No. ####
Page 23 of 34
Exhibit "F"
Development Agreement
03-03-2015
74
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
Attn: City Clerk
(Space Above This Line Is for Recorder's Use Only)
This Agreement is recorded at the request and for
the benefit of the City of Newport Beach and is
exempt from the payment of a recording fee
pursuant to Government Code §§ 6103 and 27383.
DEVELOPMENT AGREEMENT NO. DA2014-02
between
CITY OF NEWPORT BEACH
and
NEWPORT CENTER ANACAPA ASSOCIATES, LLC,
a California limited liability company
CONCERNING 150 NEWPORT CENTER
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TABLE OF CONTENTS
Pace
1. Definitions............................................................................................................................3
2. General Provisions...............................................................................................................7
2.1 Plan Consistency, Zoning Implementation..............................................................7
2.2 Binding Effect of Agreement...................................................................................7
2.3 Developer Representations and Warranties Regarding Ownership of the
Property and Related Matters Pertaining to this Agreement. ..................................7
2.4 Term.........................................................................................................................8
3. Public Benefits.....................................................................................................................8
3.1 Public Benefit Fee....................................................................................................8
4. Development of Project. ....................................................................................................10
4.1 Applicable Regulations; Developer's Vested Rights and City's
Reservation of Discretion With Respect to Subsequent Development
Approvals...............................................................................................................10
4.2 No Conflicting Enactments....................................................................................1 l
4.3 Reservations of Authority......................................................................................11
4.4 Tentative Subdivision Maps ..................................................................................13
5. Amendment or Cancellation of Agreement. ......................................................................13
6. Enforcement.......................................................................................................................14
7. Annual Review of Developer's Compliance With Agreement..........................................14
7.1 General...................................................................................................................14
7.2 Developer Obligation to Demonstrate Good Faith Compliance............................14
7.3 Procedure. ..............................................................................................................14
7.4 Annual Review a Non-Exclusive Means for Determining and Requiring
Cure of Developer's Default..................................................................................14
8. Events of Default. ..............................................................................................................15
8.1 General Provisions.................................................................................................15
8.2 Default by Developer.............................................................................................15
8.3 City's Option to Terminate Agreement. ................................................................15
8.4 Default by City.......................................................................................................15
8.5 Waiver....................................................................................................................16
8.6 Specific Performance Remedy...............................................................................16
8.7 Monetary Damages................................................................................................16
8.8 Additional City Remedy for Developer's Default.................................................16
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TABLE OF CONTENTS
Pace
8.9 No Personal Liability of City Officials, Employees, or Agents. ...........................17
8.10 Recovery of Legal Expenses by Prevailing Party in Any Action..........................17
9. Force Majeure. ...................................................................................................................17
10. Indemnity Obligations of Developer. ................................................................................17
10.1 Indemnity Arising From Acts or Omissions of Developer....................................17
10.2 Third Party Litigation. ...........................................................................................18
10.3 Environmental Indemnity. .....................................................................................18
11. Assignment. .......................................................................................................................18
12. Mortgagee Rights...............................................................................................................20
12.1 Encumbrances on Property. ...................................................................................20
12.2 Mortgagee Protection.............................................................................................20
12.3 Mortgagee Not Obligated. .....................................................................................20
12.4 Notice of Default to Mortgagee; Right of Mortgagee to Cure...............................20
13. Miscellaneous Terms. ........................................................................................................21
13.1 Notices. ..................................................................................................................21
13.2 Project as Private Undertaking...............................................................................21
13.3 Cooperation............................................................................................................22
13.4 Estoppel Certificates..............................................................................................22
13.5 Rules of Construction. ....................................-...................... ....................... ......22
13.6 Time Is of the Essence. ..........................................................................................22
13.7 Waiver....................................................................................................................22
13.8 Counterparts...........................................................................................................23
13.9 Entire Agreement...................................................................................................23
13.10 Severability. ...........................................................................................................23
13.11 Construction...........................................................................................................23
13.12 Successors and Assigns; Constructive Notice and Acceptance.............................23
13.13 No Third Party Beneficiaries. ................................................................................24
13.14 Applicable Law and Venue....................................................................................24
13.15 Section Headings. ..................................................................................................24
13.16 Incorporation of Recitals and Exhibits. .................................................................24
13.17 Recordation............................................................................................................25
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DEVELOPMENT AGREEMENT
(Pursuant to California Government Code sections 65864-65869.5)
This DEVELOPMENT AGREEMENT (the "Agreement") is dated for reference
purposes as of the day of 2016, and is being entered into by and
between the CITY OF NEWPORT BEACH ("Ciff") and NEWPORT CENTER ANACAPA
ASSOCIATES, LLC, a California limited liability company ("Developer"). City and Developer
are sometimes collectively referred to in this Agreement as the "Parties" and individually as a
11P .11
RECITALS
A. As of the "Agreement Date" (defined below) Developer holds fee title to that
certain real property located in the City of Newport Beach, County of Orange, State of California
commonly referred to as 150 Newport Center, located at 150 Newport Center Drive, Newport
Beach, CA 92660-6906 (APN #442-231-12), bounded by Newport Center Drive on the north,
Anacapa Drive on the east, the existing Gateway Plaza office complex on the south, and a
parking lot that services the existing Corporate Plaza office park on the west (the "Prope ").
Accordingly, Developer has an equitable interest in the Property and City and Developer are
authorized to enter into this Agreement pursuant to Government Code Section 65865(a) and City
Municipal Code Section 15.45.030. The Property is more particularly described in the legal
description attached hereto as Exhibit A and is depicted on the site map attached hereto as
Exhibit B.
B. In order to encourage investment in, and commitment to, comprehensive planning
and public facilities financing, strengthen the public planning process and encourage private
implementation of the local general plan, provide certainty in the approval of projects in order to
avoid waste of time and resources, and reduce the economic costs of development by providing
assurance to property owners that they may proceed with projects consistent with existing land
use policies, rules, and regulations, the California Legislature adopted California Government
Code sections 65864-65869.5 (the "Development Agreement Statute") authorizing cities and
counties to enter into development agreements with persons or entities having a legal or
equitable interest in real property located within their jurisdiction.
C. On March 13, 2007, the City Council adopted Ordinance No. 2007-6, entitled
"Ordinance Amending Chapter 15.45 of City of Newport Beach Municipal Code Regarding
Development Agreements" (the "Development Agreement Ordinance"). This Agreement is
consistent with the Development Agreement Ordinance.
D. Developer has agreed to pay a public benefit fee to City in the sum of Sixty-Seven
Thousand Dollars ($67,000) per residential dwelling unit developed as part of the "Project" (as
defined herein), including an annual adjustment to the public benefit fee based on the Consumer
Price Index ("CPP'). City has determined that Developer's payment of this public benefit fee
provides a significant public benefit to City and constitutes adequate consideration for City's
entering into and performing its obligations set forth in this Agreement.
E. The following land use entitlements for the Project are being adopted and
approved by the City Council concurrently with its approval of this Agreement:
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General Plan Amendment No. GP2014-003 proposes to change the existing
land use designation for the Property from "Regional Commercial Office (CO-R)"
to "Multiple Unit Residential (RM)." This application also designates an anomaly
for the site, adding 49 units to Statistical Area L I.
Zoning Code Amendment No. CA20 14-008 proposes to change the zoning
designations for the Property from Office Regional Commercial (OR) to establish
a planned community development plan (PC) over the Property.
Planned Community Development Plan No. PC2014-004 proposes to establish
a planned community development plan (PC) over the Property (called the 150
Newport Center Planned Community Development Plan), with development
standards for 49 condominium units. To establish a PC, a waiver of the minimum
site area of 10 acres of developed land is necessary and is requested as part of the
Project application. The applicant also is requesting an increase in the building
height limit allowable at the site by the Zoning Code from 32 feet (with a flat
roof) and 37 feet (with a sloped roof) to 83 feet 6 inches (including mechanical
equipment on the roof).
Site Development Review No. 502014-006 is requested pursuant to
Section 20.52.080 (Site Development Reviews) of the Newport Beach Municipal
Code because the Project involves a tentative map and proposes more than five
dwelling units. Site development review would allow the construction of
49 multi-family dwelling units.
Tentative Tract Map No. 17555 (NT2015-003) proposes to establish a 49-unit
residential condominium tract on the Property.
Development Agreement No. DA2014-002.
Final Environmental Impact Report No. ER2015-002 (SCH#2016011032),
including the Mitigation Monitoring and Reporting Program prepared and
approved in conjunction therewith.
F. This Agreement and the Project are consistent with the City of Newport Beach
General Plan, as amended by the City Council prior to or concurrently with its approval of this
Agreement in order to establish appropriate zoning to regulate land use and development of the
Property consistent with the General Plan.
G. In recognition of the significant public benefits that this Agreement provides, the
City Council has found that this Agreement: (i) is consistent with the City of Newport Beach
General Plan; (ii) is in the best interests of the health, safety, and general welfare of City, its
residents, and the public; (iii) is entered into pursuant to, and constitutes a present exercise of,
City's police power; (iv) is consistent with the provisions of the California Environmental
Quality Act ("CEQA"), including all criteria, standards and procedures of CEQA and the CEQA
Guidelines requiring the preparation of an Initial Study and an Environmental Impact Report that
has been approved by the City Council, all of which analyze the environmental effects of the
proposed development of the Project on the Property, and all of the findings, conditions of
approval and mitigation measures related thereto; and (v) has been approved consistent with
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7Q
provisions of California Government Code section 65867 and City of Newport Beach Municipal
Code chapter 15.45.
H. On 2016, City's Planning Commission held a public hearing on
this Agreement, made findings and determinations with respect to this Agreement, and
recommended to the City Council that the City Council approve this Agreement.
I. On , 2016, the City Council also held a public hearing on this
Agreement and considered the Planning Commission's recommendations and the testimony and
information submitted by City staff, Developer, and members of the public. On
, 2016, consistent with applicable provisions of the Development Agreement
Statute and Development Agreement Ordinance, the City Council adopted its Ordinance No.
(the "Adopting Ordinance"), finding this Agreement to be consistent with the City of
Newport Beach General Plan in approving this Agreement.
AGREEMENT
NOW, THEREFORE, City and Developer agree as follows:
1. Definitions.
In addition to any terms defined elsewhere in this Agreement, the following terms when
used in this Agreement shall have the meanings set forth below:
"Action" shall have the meaning ascribed in Section 8.10 of this Agreement.
"Adopting Ordinance" shall mean City Council Ordinance No. approving and
adopting this Agreement.
"Agreement" shall mean this Development Agreement No. DA2014-002, as the same
may be amended from time to time.
"Agreement Date" shall mean the date this Agreement is recorded in the Office of the
Orange County Recorder.
"CEOA" shall mean the California Environmental Quality Act (California Public
Resources Code sections 21000-21177) and the implementing regulations promulgated
thereunder by the Secretary for Resources (California Code of Regulations, Title 14, section
15000 et seq.), as the same may be amended from time to time.
"City" shall mean the City of Newport Beach, a California charter city, and any successor
or assignee of the rights and obligations of the City of Newport Beach hereunder.
"City Council" shall mean the governing body of City.
"City's Affiliated Parties" shall have the meaning ascribed in Section 10.1 of this
Agreement.
"Claim" shall have the meaning ascribed in Section 10.1 of this Agreement.
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"CPI Index" shall mean the Consumer Price Index published from time to time by the
United States Department of Labor for all urban consumers (all items) for the smallest
geographic area that includes the City or, if such index is discontinued, such other similar index
as may be publicly available that is selected by City in its reasonable discretion.
"Cure Period" shall have the meaning ascribed in Section 8.1 of this Agreement.
"Default" shall have the meaning ascribed to that term in Section 8.1 of this Agreement.
"Develop" or "Development" shall mean to improve or the improvement of the Property
for the purpose of completing the structures, improvements, and facilities comprising the Project,
including but not limited to: grading; the construction of infrastructure and public facilities
related to the Project, whether located within or outside the Property; the construction of all of
the private improvements and facilities comprising the Project; the preservation or restoration, as
required of natural and man-made or altered open space areas; and the installation of
landscaping. The terms "Develop" and "Development," as used herein, do not include the
maintenance, repair, reconstruction, replacement, or redevelopment of any structure,
improvement, or facility after the initial construction and completion thereof.
"Developer" shall mean Newport Center Anacapa Associates, LLC, a California limited
liability company, and any successor or assignee to all or any portion of the right, title, and
interest of Newport Center Anacapa Associates, LLC, in and to ownership of all or a portion of
the Property.
"Development Agreement Ordinance" shall mean Chapter 15.45 of the City of Newport
Beach Municipal Code.
"Development Agreement Statute" shall mean California Government Code sections
65864-65869.5, inclusive.
"Development Exactions" shall mean any requirement of City in connection with or
pursuant to any ordinance, resolution, rule, or official policy for the dedication of land, the
construction or installation of any public improvement or facility, or the payment of any fee or
charge in order to lessen, offset, mitigate, or compensate for the impacts of development of the
Project on the environment or other public interests.
"Development Plan" shall mean all of the land use entitlements, approvals and permits
approved by the City for the Project on or before the Agreement Date, as the same may be
amended from time to time consistent with this Agreement. Such land use entitlements,
approvals and permits include, without limitation, the following: (1) the Development rights as
provided under this Agreement; (2) General Plan Amendment No. GP2014-003; (3)Zoning
Code Amendment No. CA20 14-008; (4) Planned Community Development Plan No. PC2014-
004; (5) Site Development Review No. 502014-006; (6) Tentative Tract Map No. NT2015-003;
(7) Final Environmental Impact Report No. ER2015-002 for the Project, including the Mitigation
Monitoring and Reporting Program approved in conjunction therewith; and (8) all conditions of
approval and all mitigation measures approved for the Project on or before the Agreement Date.
"Development Regulations" shall mean the following regulations as they are in effect as
of the date of the Adopting Ordinance and to the extent they govern or regulate the development
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21
of the Property, but excluding any amendment or modification to the Development Regulations
adopted, approved, or imposed after the date of the Adopting Ordinance that impairs or restricts
Developer's rights set forth in this Agreement, unless such amendment or modification is
expressly authorized by this Agreement or is agreed to by Developer in writing: the General
Plan; the Development Plan; and, to the extent not expressly superseded by the Development
Plan or this Agreement, all other land use and subdivision regulations governing the permitted
uses, density and intensity of use, design, improvement, and construction standards and
specifications, procedures for obtaining required City permits and approvals for development,
and similar matters that may apply to development of the Project on the Property during the
Tenn of this Agreement that are set forth in Title 15 of the Municipal Code (buildings and
construction), Title 19 of the Municipal Code (subdivisions and inclusionary housing), and Title
20 of the Municipal Code (planning, zoning and density bonus), but specifically excluding all
other sections of the Municipal Code, including without limitation Title 5 of the Municipal Code
(business licenses and regulations). Notwithstanding the foregoing, the term "Development
Regulations," as used herein, does not include any City ordinance, resolution, code, rule,
regulation or official policy governing any of the following: (i) the conduct of businesses,
professions, and occupations; (ii) taxes and assessments; (iii) the control and abatement of
nuisances; (iv) the granting of encroachment permits and the conveyance of rights and interests
which provide for the use of or the entry upon public property; or (v) the exercise of the power of
eminent domain.
"Effective Date" shall mean the latest of all of the following occurring, as applicable: (i)
the date that is thirty (30) days after the date of the Adopting Ordinance; (ii) if a referendum
concerning the Adopting Ordinance or any of the Development Regulations approved on or
before the date of the Adopting Ordinance is timely qualified for the ballot and a referendum
election is held concerning the Adopting Ordinance or any of such Development Regulations, the
date on which the referendum is certified resulting in upholding and approving the Adopting
Ordinance and such Development Regulations and becomes effective, if applicable; and (iii) if a
lawsuit is timely filed challenging the validity or legality of the Adopting Ordinance, this
Agreement, and/or any of the Development Regulations approved on or before the date of the
Adopting Ordinance, the date on which said challenge is finally resolved in favor of the validity
or legality of the Adopting Ordinance, this Agreement, and/or the applicable Development
Regulations, whether such finality is achieved by a final non-appealable judgment, voluntary or
involuntary dismissal (and the passage of any time required to appeal an involuntary dismissal),
or binding written settlement agreement. Promptly after the Effective Date occurs, the Parties
agree to cooperate in causing an appropriate instrument to be executed and recorded against the
Property memorializing the Effective Date. Notwithstanding any other provision set forth in this
Agreement to the contrary, however, in the event that for any reason the Effective Date does not
occur on or before the third (3rd) anniversary of the date on which the City Council adopts the
Adopting Ordinance then City shall have the right, exercisable in its sole and absolute discretion,
to rescind the Adopting Ordinance and terminate this Agreement, and in such event neither Party
shall have any additional rights or obligations hereunder after the effective date of such action(s).
"EIR" shall mean Final Environmental Impact Report No. ER2015-002 (including the
Mitigation Monitoring and Reporting Program) prepared for the Project and certified as fully
compliant with the CEQA and the CEQA Guidelines by the City Council.
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"Environmental Laws" means all federal, state, regional, county, municipal, and local
laws, statutes, ordinances, rules, and regulations which are in effect as of the date of the
Adopting Ordinance, and all federal, state, regional, county, municipal, and local laws, statutes,
rules, ordinances, rules, and regulations which may hereafter be enacted and which apply to the
Property or any part thereof, pertaining to the use, generation, storage, disposal, release,
treatment, or removal of any Hazardous Substances, including without limitation the following:
the Comprehensive Environmental Response Compensation and Liability Act of 1980, 42 U.S.C.
Sections 9601, et sem., as amended ("CERCLA"); the Solid Waste Disposal Act, as amended by
the Resource Conservation and Recovery Act of 1976, 42 U.S.C. Sections 6901, et sem., as
amended ("RCRA"); the Emergency Planning and Community Right to Know Act of 1986, 42
U.S.C. Sections 11001 et sea., as amended; the Hazardous Materials Transportation Act,
49 U.S.C. Section 1801, et seq., as amended; the Clean Air Act, 42 U.S.C. Sections 7401 et seq.,
as amended; the Clean Water Act, 33 U.S.C. Section 1251, et sem., as amended; the Toxic
Substances Control Act, 15 U.S.C. Sections 2601 et seq., as amended; the Federal Insecticide,
Fungicide and Rodenticide Act, 7 U.S.C. Sections 136 et seq., as amended; the Federal Safe
Drinking Water Act, 42 U.S.C. Sections 300f et sea., as amended; the Federal Radon and Indoor
Air Quality Research Act, 42 U.S.C. Sections 7401 et seq., as amended; the Occupational Safety
and Health Act, 29 U.S.C. Sections 651 et seq., as amended; and California Health and Safety
Code Section 25100, et seq.
"General Plan" shall mean City's 2006 General Plan adopted by the City Council on July
25, 2006, by Resolution No. 2006-76, excluding any amendment after the Effective Date that
impairs or restricts Developer's rights set forth in this Agreement, unless such amendment is
expressly authorized by this Agreement, is authorized by Sections 8 or 9, or is specifically
agreed to by Developer. The Land Use Plan of the Land Use Element of the General Plan was
approved by City voters in a general election on November 7, 2006.
"Hazardous Substances" means any toxic substance or waste, pollutant, hazardous
substance or waste, contaminant, special waste, industrial substance or waste, petroleum or
petroleum-derived substance or waste, or any toxic or hazardous constituent or additive to or
breakdown component from any such substance or waste, including without limitation any
substance, waste, or material regulated under or defined as "hazardous" or "toxic" under any
Environmental Law.
"Mortgage" shall mean a mortgage, deed of trust, sale and leaseback arrangement, or any
other form of conveyance in which the Property, or a part or interest in the Property, is pledged
as security and contracted for in good faith and for fair value.
"Mortgagee" shall mean the holder of a beneficial interest under a Mortgage or any
successor or assignee of the Mortgagee.
"Notice of Default" shall have the meaning ascribed in Section 8.1 of this Agreement.
"Party" or "Parties" shall mean either City or Developer or both, as determined by the
context.
"Project" shall mean all on-site and off-site improvements that Developer is authorized
and/or required to construct with respect to each parcel of the Property, as provided in this
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Agreement and the Development Regulations, as the same may be modified or amended from
time to time consistent with this Agreement and applicable law.
"PropertX" is described in Exhibit A and depicted on Exhibit B.
"Public Benefit Fee" shall have the meaning ascribed in Section 3.1 of this Agreement.
"Subsequent Development Approvals" shall mean all discretionary development and
building approvals that Developer is required to obtain to Develop the Project on and with
respect to the Property after the date of the Adopting Ordinance consistent with the Development
Regulations and this Agreement, with the understanding that except as expressly set forth herein
City shall not have the right subsequent to the Effective Date and during the Term of this
Agreement to adopt or impose requirements for any such Subsequent Development Approvals
that do not exist as of the Agreement Date.
"Term" shall have the meaning ascribed in Section 2.4 of this Agreement.
"Termination Date" shall have the meaning ascribed in Section 2.4 of this Agreement.
"Transfer" shall have the meaning ascribed in Section 11 of this Agreement.
2. General Provisions.
2.1 Plan Consistency, Zoning Implementation.
This Agreement and the Development Regulations applicable to the Property will cause
City's zoning and other land use regulations for the Property to be consistent with the General
Plan.
2.2 Binding Effect of Agreement.
The Property is hereby made subject to this Agreement. Development of the Property is
hereby authorized and shall be carried out in accordance with the terms of this Agreement.
2.3 Developer Representations and Warranties Regarding Ownership of the Property
and Related Matters Pertaining to this Agreement.
Developer and each person executing this Agreement on behalf of Developer hereby
represents and warrants to City as follows: (i) that Developer has an option to purchase the fee
simple title to the Property and will be the owner of fee simple title to the Property as of the
Effective Date; (ii) if Developer or any co-owner comprising Developer is a legal entity that such
entity is duly formed and existing and is authorized to do business in the State of California; (iii)
if Developer or any co-owner comprising Developer is a natural person that such natural person
has the legal right and capacity to execute this Agreement; (iv) that all actions required to be
taken by all persons and entities comprising Developer to enter into this Agreement have been
taken and that Developer has the legal authority to enter into this Agreement; (v) that
Developer's entering into and performing its obligations set forth in this Agreement will not
result in a violation of any obligation, contractual or otherwise, that Developer or any person or
entity comprising Developer has to any third party; (vi) that neither Developer nor any co-owner
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comprising Developer is the subject of any voluntary or involuntary bankruptcy or insolvency
petition; and (vii) that Developer has no actual knowledge of any pending or threatened claims of
any person or entity affecting the validity of any of the representations and warranties set forth in
clauses (i)-(vi), inclusive, or affecting Developer's authority or ability to enter into or perform
any of its obligations set forth in this Agreement.
2.4 Term.
The term of this Agreement (the "Term") shall commence on the Effective Date and shall
terminate on the "Termination Date."
Notwithstanding any other provision set forth in this Agreement to the contrary, if either
Party reasonably determines that the Effective Date of this Agreement will not occur because (i)
the Adopting Ordinance or any of the Development Regulations approved on or before the date
of the Adopting Ordinance for the Project has/have been disapproved by City's voters at a
referendum election or (ii) a final non-appealable judgment is entered in a judicial action
challenging the validity or legality of the Adopting Ordinance, this Agreement, and/or any of the
Development Regulations for the Project approved on or before the date of the Adopting
Ordinance such that this Agreement and/or any of such Development Regulations is/are invalid
and unenforceable in whole or in such a substantial part that the judgment substantially impairs
such Parry's rights or substantially increases its obligations or risks hereunder or thereunder, then
such Party, in its sole and absolute discretion, shall have the right to terminate this Agreement
upon delivery of a written notice of termination to the other Party, in which event neither Party
shall have any further rights or obligations hereunder except that Developer's indemnity
obligations set forth in Article 10 shall remain in full force and effect and shall be enforceable,
and the Development Regulations applicable to the Project and the Property only (but not those
general Development Regulations applicable to other properties in the City) shall similarly be
null and void at such time.
The Termination Date shall be the earliest of the following dates: (i) the tenth (10th)
anniversary of the Effective Date; (ii) such earlier date that this Agreement may be terminated in
accordance with Articles 5, 7, and/or Section 8.3 of this Agreement and/or Sections 65865.1
and/or 65868 of the Development Agreement Statute; or (iii) completion of the Project in
accordance with the terms of this Agreement, including Developer's complete satisfaction,
performance, and payment, as applicable, of all Development Exactions, the issuance of all
required final occupancy permits, and acceptance by City or applicable public agency(ies) or
private entity(ies) of all required offers of dedication.
Notwithstanding any other provision set forth in this Agreement to the contrary, the
provisions set forth in Article 10 and Section 13.10 (as well as any other Developer obligations
set forth in this Agreement that are expressly written to survive the Termination Date) shall
survive the Termination Date of this Agreement.
3. Public Benefits.
3.1 Public Benefit Fee.
As consideration for City's approval and performance of its obligations set forth in this
Agreement, Developer shall pay to City a fee that shall be in addition to any other fee or charge
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to which the Property and the Project would otherwise be subject (herein, the "Public Benefit
Fee") in the sum of Sixty-Seven Thousand Dollars ($67,000) per residential dwelling unit
developed as part of the Project. Developer shall pay the Public Benefit Fee at the time the City
issues the certificate of occupancy for the Project.
The amount of the Public Benefit Fee shall be increased based upon percentage increases
in the CPI Index. The first CPI adjustment to the Public Benefit Fee shall occur on the third
anniversary of the City Council's adoption of the Adopting Ordinance (the first "Adjustment
Date") and subsequent CPI adjustments shall occur on each anniversary of the first Adjustment
Date thereafter until expiration of the Term of this Agreement (each, an "Adjustment Date").
The amount of the CPI adjustment on the first Adjustment Date shall he the percentage increase
in the CPI Index between the second anniversary of the City Council's adoption of the Adopting
Ordinance and the third anniversary of the City Council's adoption of the Adopting Ordinance.
The amount of the CPI adjustment on each subsequent Adjustment Date shall be the percentage
increase between said Adjustment Date and the immediately preceding Adjustment Date. The
amount of the percentage increase in the CPI Index on the applicable Adjustment Dates shall in
each instance be calculated based on the then most recently available CPI Index figures such
that, for example, if the first Adjustment Date occurs on September 1, 2019, and the most
recently available CPI Index figure on that date is the CPI Index for July 2019 (2 months prior to
the first Adjustment Date), the percentage increase in the CPI Index on the first Adjustment Date
shall be calculated by comparing the CPI Index for July 2018 with the CPI Index for July 2019.
In no event, however, shall application of the CPI Index on any Adjustment Date reduce the
amount of the Public Benefit Fee (or unpaid portion thereof) below the amount in effect prior to
that Adjustment Date. Notwithstanding any other provision set forth in this Agreement to the
contrary, during the Term of this Agreement City shall not increase the Public Benefit Fee except
pursuant to the CPI Index as stated in this Section 3.1.
Developer acknowledges by its approval and execution of this Agreement that it is
voluntarily agreeing to pay the Public Benefit Fee, that its obligation to pay the Public Benefit
Fee is an essential term of this Agreement and is not severable from City's obligations and
Developer's vesting rights to be acquired hereunder, and that Developer expressly waives any
constitutional, statutory, or common law right it might have in the absence of this Agreement to
protest or challenge the payment of such fee on any ground whatsoever, including without
limitation pursuant to the Fifth and Fourteenth Amendments to the United States Constitution,
California Constitution Article I Section 19, the Mitigation Fee Act (California Government
Code Section 66000 et seq.), or otherwise. In addition to any other remedy set forth in this
Agreement for Developer's Default, if Developer, including any Permitted Transferee, shall fail
to timely pay any portion of the Public Benefit Fee when due City shall have the right to (i)
withhold issuance of the occupancy permit and any other building, inspection, or development
permit or approval for the unit(s) for which the Public Benefit Fee remains unpaid or (ii)
withhold issuance of building, occupancy, and other building or development permits for any
other portion of the Project that at that time is under common ownership with Developer or
Permitted Transferee, as applicable.
City shall have the right to spend the Public Benefit Fee on any public purpose that City
determines to be in the public interest, as designated by City in its sole and absolute discretion.
The Public Benefit Fee is not intended to constitute a Development Exaction, is in addition to the
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Development Exactions applicable to the Project, and is not subject to restrictions on the use of
various forms of Development Exactions.
4. Development of Project.
4.1 Applicable Regulations; Developer's Vested Rights and City's Reservation of
Discretion With Respect to Subsequent Development Approvals.
Other than as expressly set forth in this Agreement, during the Term of this Agreement,
(i) Developer shall have the vested right to Develop the Project on and with respect to the
Property in accordance with the terms of the Development Regulations and this Agreement and
(ii) City shall not prohibit or prevent development of the Property on grounds inconsistent with
the Development Regulations or this Agreement. Notwithstanding the foregoing, nothing herein
is intended to limit or restrict City's discretion with respect to (i) review and approval
requirements contained in the Development Regulations, (ii) exercise of any discretionary
authority City retains under the Development Regulations, (iii) the approval, conditional
approval, or denial of any Subsequent Development Approvals that are required for
Development of the Project as of the Effective Date, or (iv) any environmental approvals that
may be required under CEQA or any other federal or state law or regulation in conjunction with
any Subsequent Development Approvals that may be required for the Project, and in this regard,
as to future actions referred to in clauses (i)-(iv) of this sentence, City reserves its full discretion
to the same extent City would have such discretion in the absence of this Agreement. In
addition, it is understood and agreed that nothing in this Agreement is intended to vest
Developer's rights with respect to any laws, regulations, rules, or official policies of any other
governmental agency or public utility company with jurisdiction over the Property or the Project;
or any applicable federal or state laws, regulations, rules, or official policies that may be
inconsistent with this Agreement and that override or supersede the provisions set forth in this
Agreement, and regardless of whether such overriding or superseding laws, regulations, rules, or
official policies are adopted or applied to the Property or the Project prior or subsequent to the
date of the Adopting Ordinance.
Developer has expended and will continue to expend substantial amounts of time and
money planning and preparing for Development of the Project. Developer represents and City
acknowledges that Developer would not make these expenditures without this Agreement, and
that Developer is and will be making these expenditures in reasonable reliance upon its vested
rights to Develop the Project as set forth in this Agreement.
Developer may apply to City for permits or approvals necessary to modify or amend the
Development specified in the Development Regulations, provided that the request does not
propose an increase in the maximum density, intensity, height, or size of proposed structures, or
a change in use that generates more peak hour traffic or more daily traffic and, in addition,
Developer may apply to City for approval of minor amendments to existing tentative tract maps,
tentative parcel maps, or associated conditions of approval, consistent with City of Newport
Beach Municipal Code section 19.12.090. This Agreement does not constitute a promise or
commitment by City to approve any such permit or approval, or to approve the same with or
without any particular requirements or conditions, and City's discretion with respect to such
matters shall be the same as it would be in the absence of this Agreement.
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4.2 No Conflicting Enactments.
Except to the extent City reserves its discretion as expressly set forth in this Agreement,
during the Term of this Agreement City shall not apply to the Project or the Property any
ordinance, policy, rule, regulation, or other measure relating to Development of the Project that
is enacted or becomes effective after the Effective Date to the extent it conflicts with this
Agreement. This Section 4.2 shall not restrict City's ability to enact an ordinance, policy, rule,
regulation, or other measure applicable to the Project pursuant to California Government Code
Section 65866 consistent with the procedures specified in Section 4.3 of this Agreement. In
Pardee Construction Co. v. City of Camarillo (1984) 37 Cal.3d 465, the California Supreme
Court held that a construction company was not exempt from a city's growth control ordinance
even though the city and construction company had entered into a consent judgment (tantamount
to a contract under California law) establishing the company's vested rights to develop its
property consistent with the zoning. The California Supreme Court reached this result because
the consent judgment failed to address the timing of development. The Parties intend to avoid
the result of the Pardee case by acknowledging and providing in this Agreement that Developer
shall have the vested right to Develop the Project on and with respect to the Property at the rate,
timing, and sequencing that Developer deems appropriate within the exercise of Developer's sole
subjective business judgment, provided that such Development occurs in accordance with this
Agreement and the Development Regulations, notwithstanding adoption by City's electorate of
an initiative to the contrary after the Effective Date. No City moratorium or other similar
limitation relating to the rate, timing, or sequencing of the Development of all or any part of the
Project and whether enacted by initiative or another method, affecting subdivision maps,
building permits, occupancy certificates, or other entitlement to use, shall apply to the Project to
the extent such moratorium or other similar limitation restricts Developer's vested rights in this
Agreement or otherwise conflicts with the express provisions of this Agreement.
4.3 Reservations of Authority.
Notwithstanding any other provision set forth in this Agreement to the contrary, the laws,
rules, regulations, and official policies set forth in this Section 4.3 shall apply to and govern the
Development of the Project on and with respect to the Property.
4.3.1 Procedural Regulations. Procedural regulations relating to hearing bodies,
petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals,
and any other matter of procedure shall apply to the Property, provided that such procedural
regulations are adopted and applied City-wide or to all other properties similarly situated in City.
4.3.2 Processing and Permit Fees. City shall have the right to charge and
Developer shall be required to pay all applicable processing and permit fees to cover the
reasonable cost to City of processing and reviewing applications and plans for any required
Subsequent Development Approvals, building permits, excavation and grading permits,
encroachment permits, and the like, for performing necessary studies and reports in connection
therewith, inspecting the work constructed or installed by or on behalf of Owner, and
monitoring compliance with any requirements applicable to Development of the Project, all at
the rates in effect at the time fees are due.
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4.3.3 Consistent Future City Regulations. City ordinances, resolutions,
regulations, and official policies governing Development which do not conflict with the
Development Regulations, or with respect to such regulations that do conflict, where Developer
has consented in writing to the regulations, shall apply to the Property.
4.3.4 Development Exactions Applicable to Property. During the Term of this
Agreement, Developer shall be required to satisfy and pay all Development Exactions at the time
performance or payment is due to the same extent and in the same amount(s) that would apply to
Developer and the Project in the absence of this Agreement. In addition, nothing in this
Agreement is intended or shall be deemed to vest Developer against the obligation to pay any of
the following (which are not included within the definition of"Development Exactions") in the
full amount that would apply in the absence of this Agreement: (i) City's normal fees for
processing, environmental assessment and review, tentative tract and parcel map review, plan
checking, site review and approval, administrative review, building permit, grading permit,
inspection, and similar fees imposed to recover City's costs associated with processing,
reviewing, and inspecting project applications, plans, and specifications; (ii) fees and charges
levied by any other public agency, utility, district, or joint powers authority, regardless of
whether City collects those fees and charges; or (iii) community facility district special taxes or
special district assessments or similar assessments, business license fees, bonds or other security
required for public improvements, transient occupancy taxes, sales taxes, property taxes, sewer
lateral connection fees, water service connection fees, new water meter fees, and the Property
Development Tax payable under Section 3.12 of City's Municipal Code.
4.3.5 Overriding Federal and State Laws and Regulations. Federal and state
laws and regulations that override Developer's vested rights set forth in this Agreement shall
apply to the Property, together with any City ordinances, resolutions, regulations, and official
policies that are necessary to enable City to comply with the provisions of any such overriding
federal or state laws and regulations, provided that (i) Developer does not waive its right to
challenge or contest the validity of any such purportedly overriding federal, state, or City law or
regulation; and (ii) upon the discovery of any such overriding federal, state, or City law or
regulation that prevents or precludes compliance with any provision of this Agreement, City or
Developer shall provide to the other Party a written notice identifying the federal, state, or City
law or regulation, together with a copy of the law or regulation and a brief written statement of
the conflict(s) between that law or regulation and the provisions of this Agreement. Promptly
thereafter City and Developer shall meet and confer in good faith in a reasonable attempt to
determine whether a modification or suspension of this Agreement, in whole or in part, is
necessary to comply with such overriding federal, state, or City law or regulation. In such
negotiations, City and Developer agree to preserve the terms of this Agreement and the rights of
Developer as derived from this Agreement to the maximum feasible extent while resolving the
conflict. City agrees to cooperate with Developer at no cost to City in resolving the conflict in a
manner which minimizes any financial impact of the conflict upon Developer. City also agrees
to process in a prompt manner Developer's proposed changes to the Project and any of the
Development Regulations as may be necessary to comply with such overriding federal, state, or
City law or regulation; provided, however, that the approval of such changes by City shall be
subject to the discretion of City, consistent with this Agreement.
4.3.6 Public Health and Safety. Any City ordinance, resolution, rule, regulation,
program, or official policy that is necessary to protect persons on the Property or in the
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immediate vicinity from conditions dangerous to their health or safety, as reasonably determined
by City, shall apply to the Property, even though the application of the ordinance, resolution, rule
regulation, program, or official policy would result in the impairment of Developer's vested
rights under this Agreement.
4.3.7 Uniform Building Standards. Existing and future building and building-
related standards set forth in the uniform codes adopted and amended by City from time to time,
including building, plumbing, mechanical, electrical, housing, swimming pool, and fire codes,
and any modifications and amendments thereof shall all apply to the Project and the Property to
the same extent that the same would apply in the absence of this Agreement.
4.3.8 Public Works Improvements. To the extent Developer constructs or
installs any public improvements, works, or facilities, the City standards in effect for such public
improvements, works, or facilities at the time of City's issuance of a permit, license, or other
authorization for construction or installation of same shall apply.
4.3.9 No Guarantee or Reservation of Utility Capacity. Notwithstanding any
other provision set forth in this Agreement to the contrary, nothing in this Agreement is intended
or shall be interpreted to require City to guarantee or reserve to or for the benefit of Developer or
the Property any utility capacity, service, or facilities that may be needed to serve the Project,
whether domestic or reclaimed water service, sanitary sewer transmission or wastewater
treatment capacity, downstream drainage capacity, or otherwise, and City shall have the right to
limit or restrict Development of the Project if and to the extent that City reasonably determines
that inadequate utility capacity exists to adequately serve the Project at the time Development is
scheduled to commence. Notwithstanding the foregoing, City covenants to provide utility
services to the Project on a non-discriminatory basis (i.e., on the same terms and conditions that
City undertakes to provide such services to other similarly situated new developments in the City
of Newport Beach as and when service connections are provided and service commences).
4.4 Tentative Subdivision Mans
City agrees that Developer may file and process new and existing vesting tentative maps
for the Property consistent with California Government Code sections 66498.1-66498.9 and City
of Newport Beach Municipal Code Chapter 19.20. Pursuant to the applicable provision of the
California Subdivision Map Act (California Government Code section 66452.6(a)), the life of
any tentative subdivision map approved for the Property, whether designated a "vesting tentative
map" or otherwise, shall be extended for the Term of this Agreement.
5. Amendment or Cancellation of Agreement.
Other than modifications of this Agreement under Section 8.3 of this Agreement, this
Agreement may be amended or canceled in whole or in part only by mutual written and executed
consent of the Parties in compliance with California Government Code section 65868 and City of
Newport Beach Municipal Code section 15.45.060 or by unilateral termination by City in the
event of an uncured default of Developer.
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6. Enforcement.
Unless this Agreement is amended, canceled, modified, or suspended as authorized
herein or pursuant to California Government Code section 65869.5, this Agreement shall be
enforceable by either Party despite any change in any applicable general or specific plan, zoning,
subdivision, or building regulation or other applicable ordinance or regulation adopted by City
(including by City's electorate)that purports to apply to any or all of the Property.
7. Annual Review of Developer's Compliance With Agreement.
7.1 General.
City shall review this Agreement once during every twelve (12) month period following
the Effective Date for compliance with the terms of this Agreement as provided in Government
Code section 65865.1. Developer (including any successor to the owner executing this
Agreement on or before the date of the Adopting Ordinance) shall pay City a reasonable fee in
an amount City may reasonably establish from time to time to cover the actual and necessary
costs for the annual review. City's failure to timely provide or conduct an annual review shall
not constitute a Default hereunder by City.
7.2 Developer Obligation to Demonstrate Good Faith Compliance.
During each annual review by City, Developer is required to demonstrate good faith
compliance with the terms of the Agreement. Developer agrees to furnish such evidence of good
faith compliance as City, in the reasonable exercise of its discretion, may require, thirty (30) days
prior to each anniversary of the Effective Date during the Term.
7.3 Procedure.
The City Council of City shall conduct a duly noticed hearing and shall determine, on the
basis of substantial evidence, whether or not Developer has, for the period under review,
complied with the terms of this Agreement. If the City Council finds that Developer has so
complied, the annual review shall be concluded. If the City Council finds, on the basis of
substantial evidence, that Developer has not so complied, written notice shall be sent to
Developer by first class mail of the City Council's finding of non-compliance, and Developer
shall be given at least ten (10) days to cure any noncompliance that relates to the payment of
money and thirty(30) days to cure any other type of noncompliance. If a cure not relating to the
payment of money cannot be completed within thirty (30) days for reasons which are beyond the
control of Developer, Developer must commence the cure within such thirty (30) days and
diligently pursue such cure to completion. If Developer fails to cure such noncompliance within
the time(s) set forth above, such failure shall be considered to be a Default and City shall be
entitled to exercise the remedies set forth in Article 8 below.
7.4 Annual Review a Non-Exclusive Means for Determining and Requiring Cure of
Developer's Default.
The annual review procedures set forth in this Article 7 shall not be the exclusive means
for City to identify a Default by Developer or limit City's rights or remedies for any such
Default.
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8. Events of Default.
8.1 General Provisions.
In the event of any material default, breach, or violation of the terms of this Agreement
("Default'), the Party alleging a Default shall have the right to deliver a written notice (each, a
"Notice of Default")to the defaulting Party. The Notice of Default shall specify the nature of the
alleged Default and a reasonable manner and sufficient period of time (ten (10) days if the
Default relates to the failure to timely make a monetary payment due hereunder and not less than
thirty (30) days in the event of non-monetary Defaults) in which the Default must be cured (the
"Cure Period"). During the Cure Period, the Party charged shall not be considered in Default for
the purposes of termination of this Agreement or institution of legal proceedings. If the alleged
Default is cured within the Cure Period, then the Default thereafter shall be deemed not to exist.
If a non-monetary Default cannot be cured during the Cure Period with the exercise of
commercially reasonable diligence, the defaulting Party must promptly commence to cure as
quickly as possible, and in no event later than thirty (30) days after it receives the Notice of
Default, and thereafter diligently pursue said cure to completion.
8.2 Default by Developer.
If Developer is alleged to have committed a non-monetary Default and it disputes the
claimed Default, it may make a written request for an appeal hearing before the City Council
within ten (10) days of receiving the Notice of Default, and a public hearing shall be scheduled at
the next available City Council meeting to consider Developer's appeal of the Notice of Default.
Failure to appeal a Notice of Default to the City Council within the ten (10) day period shall
waive any right to a hearing on the claimed Default. If Developer's appeal of the Notice of
Default is timely and in good faith but after a public hearing of Developer's appeal the City
Council concludes that Developer is in Default as alleged in the Notice of Default, the accrual
date for commencement of the thirty (30) day Cure Period provided in Section 8.1 shall be
extended until the City Council's denial of Developer's appeal is communicated to Developer.
8.3 City's Option to Terminate Agreement.
In the event of an alleged Developer Default, City may not terminate this Agreement
without first delivering a written Notice of Default and providing Developer with the opportunity
to cure the Default within the Cure Period, as provided in Section 8.1, and complying with
Section 8.2 if Developer timely appeals any Notice of Default with respect to a non-monetary
Default. A termination of this Agreement by City shall be valid only if good cause exists and is
supported by evidence presented to the City Council at or in connection with a duly noticed
public hearing to establish the existence of a Default. The validity of any termination may be
judicially challenged by Developer. Any such judicial challenge must be brought within sixty
(60)mslo calendar days of service on Developer, by first class mail, postage prepaid, of written
notice of termination by City or a written notice of City's determination of an appeal of the
Notice of Default as provided in Section 8.2.
8.4 Default by City.
If Developer alleges a City Default and alleges that the City has not cured the Default
within the Cure Period, Developer may pursue any equitable remedy available to it under this
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Agreement, including, without limitation, an action for a writ of mandamus, injunctive relief, or
specific performance of City's obligations set forth in this Agreement. Upon a City Default, any
resulting delays in Developer's performance hereunder shall neither be a Developer Default nor
constitute grounds for termination or cancellation of this Agreement by City and shall, at
Developer's option (and provided Developer delivers written notice to City within thirty (30)
days of the commencement of the alleged City Default), extend the Term for a period equal to
the length of the delay.
8.5 Waiver.
Failure or delay by either Parry in delivering a Notice of Default shall not waive that
Party's right to deliver a future Notice of Default of the same or any other Default.
8.6 Specific Performance Remedy.
Due to the size, nature, and scope of the Project, it will not be practical or possible to
restore the Property to its pre-existing condition once implementation of this Agreement has
begun. After such implementation, both Developer and City may be foreclosed from other
choices they may have had to plan for the development of the Property, to utilize the Property or
provide for other benefits and alternatives. Developer and City have invested significant time
and resources and performed extensive planning and processing of the Project in agreeing to the
terms of this Agreement and will be investing even more significant time and resources in
implementing the Project in reliance upon the terms of this Agreement. It is not possible to
determine the sum of money which would adequately compensate Developer or City for such
efforts. For the above reasons, City and Developer agree that damages would not be an adequate
remedy if either City or Developer fails to carry out its obligations under this Agreement.
Therefore, specific performance of this Agreement is necessary to compensate Developer if City
fails to carry out its obligations under this Agreement or to compensate City if Developer falls to
carry out its obligations under this Agreement.
8.7 Monetary Damages.
The Parties agree that monetary damages shall not be an available remedy for either Party
for a Default hereunder by the other Party; provided, however, that (i) nothing in this Section 8.7
is intended or shall be interpreted to limit or restrict City's right to recover the Public Benefit
Fees due from Developer as set forth herein; and (ii) nothing in this Section 8.7 is intended or
shall be interpreted to limit or restrict 'Developer's indemnity obligations set forth in Article 10
or the right of the prevailing Party in any Action to recover its litigation expenses, as set forth in
Section 8.10.
8.8 Additional City Remedy for Developer's Default.
In the event of any Default by Developer, in addition to any other remedies which may be
available to City, whether legal or equitable, City shall be entitled to receive and retain any
Development Exactions applicable to the Project or the Property, including any fees, grants,
dedications, or improvements to public property which it may have received prior to Developer's
Default without recourse from Developer or its successors or assigns.
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8.9 No Personal Liability of City Officials, Employees, or Agents.
No City official, employee, or agent shall have any personal liability hereunder for a
Default by City of any of its obligations set forth in this Agreement.
8.10 Recovery of Legal Expenses by Prevailing Party in Any Action.
In any judicial proceeding, arbitration, or mediation (collectively, an "Action") between
the Parties that seeks to enforce the provisions of this Agreement or arises out of this Agreement,
the prevailing Party shall recover all of its actual and reasonable costs and expenses, regardless
of whether they would be recoverable under California Code of Civil Procedure section 1033.5
or California Civil Code section 1717 in the absence of this Agreement. These costs and
expenses include court costs, expert witness fees, attorneys' fees, and costs of investigation and
preparation before initiation of the Action. The right to recover these costs and expenses shall
accrue upon initiation of the Action, regardless of whether the Action is prosecuted to a final
judgment or decision.
9. Force Majeure.
Neither Party shall be deemed to be in Default where failure or delay in performance of
any of its obligations under this Agreement is caused, through no fault of the Party whose
performance is prevented or delayed, by floods, earthquakes, other acts of God, fires, wars, riots
or similar hostilities, strikes or other labor difficulties, state or federal regulations, or court
actions. Except as specified above, nonperformance shall not be excused because of the act or
omission of a third person. In no event shall the occurrence of an event of force majeure operate
to extend the Term of this Agreement. In addition, in no event shall the time for performance of
a monetary obligation, including without limitation Developer's obligation to pay Public Benefit
Fees,be extended pursuant to this Section.
10. Indemnity Obligations of Developer.
10.1 Indemnity Arising From Acts or Omissions of Developer.
Except to the extent caused by the intentional misconduct or gross active negligence of
City or one or more of City's officials, employees, agents, attorneys, and contractors
(collectively, the "City's Affiliated Parties") , Developer shall indemnify, defend, and hold
harmless City and City's Affiliated Parties from and against all suits, claims, liabilities, losses,
damages, penalties, obligations, and expenses (including but not limited to reasonable attorneys'
fees and costs) (collectively, a "Claim") that may arise, directly or indirectly, from the acts,
omissions, or operations of Developer or Developer's agents, contractors, subcontractors, agents,
or employees in the course of Development of the Project or any other activities of Developer
relating to the Property or pursuant to this Agreement. City shall have the right to select and
retain counsel to defend any Claim filed against City and/or any of City's Affiliated Parties, and
Developer shall pay the reasonable cost for defense of any Claim. The indemnity provisions in
this Section 10.1 shall commence on the date of the Adopting Ordinance, regardless of whether
the Effective Date occurs, and shall survive the Termination Date.
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10.2 Third Party Litigation.
In addition to its indemnity obligations set forth in Section 10.1, Developer shall
indemnify, defend, and hold harmless City and City's Affiliated Parties from and against any
Claim against City or City's Affiliated Parties seeking to attack, set aside, void, or annul the
approval of this Agreement, the Adopting Ordinance, any of the Development Regulations for
the Project (including without limitation any actions taken pursuant to CEQA with respect
thereto), any Subsequent Development Approval, or the approval of any permit granted pursuant
to this Agreement. Said indemnity obligation shall include payment of reasonable attorney's
fees, expert witness fees, and court costs. City shall promptly notify Developer of any such
Claim and City shall cooperate with Developer in the defense of such Claim. If City fails to
promptly notify Developer of such Claim, Developer shall not be responsible to indemnify,
defend, and hold City harmless from such Claim until Developer is so notified and if City fails to
cooperate in the defense of a Claim Developer shall not be responsible to defend, indemnify, and
hold harmless City during the period that City so fails to cooperate or for any losses attributable
thereto. City shall be entitled to retain separate counsel to represent City against the Claim and
the City's defense costs for its separate counsel shall be included in Developer's indemnity
obligation, provided that such counsel shall reasonably cooperate with Developer in an effort to
minimize the total litigation expenses incurred by Developer. In the event either City or
Developer recovers any attorney's fees, expert witness fees, costs, interest, or other amounts
from the party or parties asserting the Claim, Developer shall be entitled to retain the same
(provided it has fully performed its indemnity obligations hereunder). The indemnity provisions
in this Section 10.2 shall commence on the date of the Adopting Ordinance, regardless of
whether the Effective Date occurs, and shall survive the Termination Date.
10.3 Environmental Indemnity.
In addition to its indemnity obligations set forth in Section 10.1, from and after the
Effective Date Developer shall indemnify, defend, and hold harmless City and City's Affiliated
Parties from and against any and all Claims for personal injury or death, property damage,
economic loss, statutory penalties or fines, and damages of any kind or nature whatsoever,
including without limitation reasonable attorney's fees, expert witness fees, and costs, based
upon or arising from any of the following: (i) the actual or alleged presence of any Hazardous
Substance on or under any of the Property in violation of any applicable Environmental Law; (ii)
the actual or alleged migration of any Hazardous Substance from the Property through the soils
or groundwater to a location or locations off of the Property; and (iii) the storage, handling,
transport, or disposal of any Hazardous Substance on, to, or from the Property and any other area
disturbed, graded, or developed by Developer in connection with Developer's Development of
the Project. The indemnity provisions in this Section 10.3 shall commence on the Effective Date
occurs, and shall survive the Termination Date.
11. Assignment.
Developer shall have the right to sell, transfer, or assign (hereinafter, collectively, a
"Transfer") Developer's interest in or fee title to the Property, in whole or in part, to a Permitted
Transferee (which successor, as of the effective date of the Transfer, shall become the
"Developer" under this Agreement) at any time from the date of the Adopting Ordinance until
the Termination Date; provided, however, that no such Transfer shall violate the provisions of
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the Subdivision Map Act (Government Code Section 66410 et seq.) or City's local subdivision
ordinance and any such transfer shall include the assignment and assumption of Developer's
rights, duties, and obligations set forth in or arising under this Agreement as to the Property or
the portion thereof so Transferred and shall be made in strict compliance with the following
conditions precedent: (i) no transfer or assignment of any of Developer's rights or interest under
this Agreement shall be made unless made together with the Transfer of all or a part of
Developer's interest in the Property; and (ii) prior to the effective date of any proposed Transfer,
Developer (as transferor) shall notify City, in writing, of such proposed Transfer and deliver to
City a written assignment and assumption, executed in recordable form by the transferring and
successor Developer and in a form subject to the reasonable approval of the City Attorney of
City (or designee), pursuant to which the transferring Developer assigns to the successor
Developer and the successor Developer assumes from the transferring Developer all of the rights
and obligations of the transferring Developer with respect to the Property, or interest in the
Property, or portion thereof to be so Transferred, including in the case of a partial Transfer the
obligation to perform such obligations that must be performed outside of the Property so
Transferred that are a condition precedent to the successor Developer's right to develop the
portion of the Property so Transferred. Any Permitted Transferee shall have all of the same
rights, benefits, duties, obligations, and liabilities of Developer under this Agreement with
respect to the portion of, or interest in, the Property sold, transferred, and assigned to such
Permitted Transferee; provided, however, that in the event of a Transfer of less than all of the
Property, or interest in the Property, no such Permitted Transferee shall have the right to enter
into an amendment of this Agreement that jeopardizes or impairs the rights or increases the
obligations of the Developer with respect to the balance of the Property.
Notwithstanding any Transfer, the transferring Developer shall continue to be jointly and
severally liable to City, together with the successor Developer, to perform all of the transferred
obligations set forth in or arising under this Agreement unless there is full satisfaction of all of
the following conditions, in which event the transferring Developer shall be automatically
released from any and all obligations with respect to the portion of the Property so Transferred:
(i) the transferring Developer no longer has a legal or equitable interest in the portion of the
Property so Transferred other than as a beneficiary under a deed of trust; (ii) the transferring
Developer is not then in Default under this Agreement and no condition exists that with the
passage of time or the giving of notice, or both, would constitute a Default hereunder; (iii) the
transferring Developer has provided City with the notice and the fully executed written and
recordable assignment and assumption agreement required as set forth in the first paragraph of
this Section 11; and (iv) the successor Developer either(A)provides City with substitute security
equivalent to any security previously provided by the transferring Developer to City to secure
performance of the successor Developer's obligations hereunder with respect to the Property, or
interest in the Property, or the portion of the Property so Transferred or (B) if the transferred
obligation in question is not a secured obligation, the successor Developer either provides
security reasonably satisfactory to City or otherwise demonstrates to City's reasonable
satisfaction that the successor Developer has the financial resources or commitments available to
perform the transferred obligation at the time and in the manner required under this Agreement
and the Development Regulations for the Project.
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12. Mortgagee Rights.
12.1 Encumbrances on Property.
The Parties agree that this Agreement shall not prevent or limit Developer in any manner
from encumbering the Property, any part of the Property, or any improvements on the Property
with any Mortgage securing financing with respect to the construction, development, use, or
operation of the Project.
12.2 Mortgagee Protection.
This Agreement shall be superior and senior to the lien of any Mortgage. Nevertheless,
no breach of this Agreement shall defeat, render invalid, diminish, or impair the lien of any
Mortgage made in good faith and for value. Any acquisition or acceptance of title or any right or
interest in the Property or part of the Property by a Mortgagee (whether due to foreclosure,
trustee's sale, deed in lieu of foreclosure, lease termination, or otherwise) shall be subject to all
of the terms and conditions of this Agreement. Any Mortgagee who takes title to the Property or
any part of the Property shall be entitled to the benefits arising under this Agreement.
12.3 Mortgagee Not Obligated.
Notwithstanding the provisions of this Section 12.3, a Mortgagee will not have any
obligation or duty under the terms of this Agreement to perform the obligations of Developer or
other affirmative covenants of Developer, or to guarantee this performance except that: (i) the
Mortgagee shall have no right to develop the Project under the Development Regulations without
fully complying with the terms of this Agreement; and (ii) to the extent that any covenant to be
performed by Developer is a condition to the performance of a covenant by City, that
performance shall continue to be a condition precedent to City's performance.
12.4 Notice of Default to Mortgagee; Right of Mortgagee to Cure.
Each Mortgagee shall, upon written request to City, be entitled to receive written notice
from City of: (i) the results of the periodic review of compliance specified in Article 7 of this
Agreement, and(ii) any default by Developer of its obligations set forth in this Agreement.
Each Mortgagee shall have a further right, but not an obligation, to cure the Default
within thirty (30) days after receiving a Notice of Default with respect to a monetary Default and
within sixty(60) days after receiving a Notice of Default with respect to a non-monetary Default.
If the Mortgagee can only remedy or cure a non-monetary Default by obtaining possession of the
Property, then the Mortgagee shall have the right to seek to obtain possession with diligence and
continuity through a receiver or otherwise, and to remedy or cure the non-monetary Default
within sixty (60) days after obtaining possession and, except in case of emergency or to protect
the public health or safety, City may not exercise any of its judicial remedies set forth in this
Agreement to terminate or substantially alter the rights of the Mortgagee until expiration of the
sixty (60)-day period. In the case of a non-monetary Default that cannot with diligence be
remedied or cured within sixty (60) days, the Mortgagee shall have additional time as is
reasonably necessary to remedy or cure the Default, provided the Mortgagee promptly
commences to cure the non-monetary Default within sixty (60) days and diligently prosecutes
the cure to completion.
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13. Miscellaneous Terms.
13.1 Notices.
Any notice or demand that shall be required or permitted by law or any provision of this
Agreement shall be in writing. If the notice or demand will be served upon a Party, it either shall
be personally delivered to the Party; deposited in the United States mail, certified, return receipt
requested, and postage prepaid; or delivered by a reliable courier service that provides a receipt
showing date and time of delivery with courier charges prepaid. The notice or demand shall be
addressed as follows:
TO CITY: City of Newport Beach
100 Civic Center Drive
Newport Beach, California 92660
Attn: City Manager
With a copy to: City Attorney
City of Newport Beach
100 Civic Center Drive
Newport Beach, California 92660
TO DEVELOPER: Newport Center Anacapa Associates, LLC
901 Dove Street, Suite 270
Newport Beach, CA 92660
Attn: Ronald E. Soderling
With a copy to: O'Neil LLP
19900 MacArthur Blvd., Suite 1050
Irvine, CA 92602
Attn: Dennis D. O'Neil, Esq.
Either Party may change the address stated in this Section 13.1 by delivering notice to the
other Party in the manner provided in this Section 13.1, and thereafter notices to such Parry shall
be addressed and submitted to the new address. Notices delivered in accordance with this
Agreement shall be deemed to be delivered upon the earlier of. (i) the date received or (iii) three
business days after deposit in the mail as provided above.
13.2 Project as Private Undertaking.
The Development of the Project is a private undertaking. Neither Party is acting as the
agent of the other in any respect, and each Party is an independent contracting entity with respect
to the terms, covenants, and conditions set forth in this Agreement. This Agreement forms no
partnership, joint venture, or other association of any kind. The only relationship between the
Parties is that of a government entity regulating the Development of private property by the
owner of the property.
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13.3 Cooperation.
Each Parry shall cooperate with and provide reasonable assistance to the other Party to
the extent consistent with and necessary to implement this Agreement. Upon the request of a
Party at any time, the other Party shall promptly execute, with acknowledgement or affidavit if
reasonably required, and file or record the required instruments and writings and take any actions
as may be reasonably necessary to implement this Agreement or to evidence or consummate the
transactions contemplated by this Agreement.
13.4 Estoppel Certificates.
At any time, either Party may deliver written notice to the other Party requesting that that
Party certify in writing that, to the best of its knowledge: (i) this Agreement is in full force and
effect and is binding on the Party; (ii) this Agreement has not been amended or modified either
orally or in writing or, if this Agreement has been amended, the Party providing the certification
shall identify the amendments or modifications; and (iii) the requesting Party is not in Default in
the performance of its obligations under this Agreement and no event or situation has occurred
that with the passage of time or the giving of Notice or both would constitute a Default or, if
such is not the case, then the other Party shall describe the nature and amount of the actual or
prospective Default. Such estoppel certificates may be relied upon only by the Parties, their
respective successors and assigns, and, in the event of an estoppel certificate issued by City, a
Mortgagee of Developer, including a Permitted Transferee, and its actual or prospective
Mortgagee. City shall be entitled to payment/reimbursement for its actual and reasonable costs
of investigation and preparation of an estoppel certificate prior to issuing the same.
The Party requested to furnish an estoppel certificate shall execute and return the
certificate within thirty (30) days following receipt (assuming, in the case of an estoppel
certificate to be issued by City, Developer has paid City the cost thereof, as provided above).
13.5 Rules of Construction.
The singular includes the plural; the masculine and neuter include the feminine; "shall" is
mandatory; and"may" is permissive.
13.6 Time Is of the Essence.
Time is of the essence regarding each provision of this Agreement as to which time is an
element.
13.7 Waiver.
The failure by a Party to insist upon the strict performance of any of the provisions of this
Agreement by the other Party, and failure by a Party to exercise its rights upon a Default by the
other Party, shall not constitute a waiver of that Party's right to demand strict compliance by the
other Party in the future.
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13.8 Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall be
identical and may be introduced in evidence or used for any other purpose without any other
counterpart, but all of which shall together constitute one and the same agreement.
13.9 Entire Agreement.
This Agreement constitutes the entire agreement between the Parties and supersedes all
prior agreements and understandings, both written and oral, between the Parties with respect to
the subject matter addressed in this Agreement.
13.10 Severability.
The Parties intend that each and every obligation of the Parties is interdependent and
interrelated with the other, and if any provision of this Agreement or the application of the
provision to any Party or circumstances shall be held invalid or unenforceable to any extent, it is
the intention of the Parties that the remainder of this Agreement or the application of the
provision to persons or circumstances shall be rendered invalid or unenforceable. The Parties
intend that neither Party shall receive any of the benefits of the Agreement without the full
performance by such Party of all of its obligations provided for under this Agreement. Without
limiting the generality of the foregoing, the Parties intend that Developer shall not receive any of
the benefits of this Agreement if any of Developer's obligations are rendered void or
unenforceable as the result of any third party litigation, and City shall be free to exercise its
legislative discretion to amend or repeal the Development Regulations applicable to the Property
and Developer shall cooperate as required, despite this Agreement, should third party litigation
result in the nonperformance of Developer's obligations under this Agreement. The provisions
of this Section 13.10 shall apply regardless of whether the Effective Date occurs and after the
Termination Date.
13.11 Construction.
This Agreement has been drafted after extensive negotiation and revision. Both City and
Developer are sophisticated parties who were represented by independent counsel throughout the
negotiations or City and Developer had the opportunity to be so represented and voluntarily
chose to not be so represented. City and Developer each agree and acknowledge that the terms
of this Agreement are fair and reasonable, taking into account their respective purposes, terms,
and conditions. This Agreement shall therefore be construed as a whole consistent with its fair
meaning, and no principle or presumption of contract construction or interpretation shall be used
to construe the whole or any part of this Agreement in favor of or against either Party.
13.12 Successors and Assigns; Constructive Notice and Acceptance.
The burdens of this Agreement shall be binding upon, and the benefits of this Agreement
shall inure to, all successors in interest to the Parties to this Agreement. All provisions of this
Agreement shall be enforceable as equitable servitudes and constitute covenants running with the
land. Each covenant to do or refrain from doing some act hereunder with regard to Development
of the Property: (i) is for the benefit of and is a burden upon every portion of the Property; (ii)
runs with the Property and each portion thereof, and (iii) is binding upon each Party and each
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successor in interest during its ownership of the Property or any portion thereof. Every person or
entity who now or later owns or acquires any right, title, or interest in any part of the Project or
the Property is and shall be conclusively deemed to have consented and agreed to every
provision of this Agreement. This Section 13.12 applies regardless of whether the instrument by
which such person or entity acquires the interest refers to or acknowledges this Agreement and
regardless of whether such person or entity has expressly entered into an assignment and
assumption agreement as provided for in Section 11.
13.13 No Third Party Beneficiaries.
The only Parties to this Agreement are City and Developer. This Agreement does not
involve any third party beneficiaries, and it is not intended and shall not be construed to benefit
or be enforceable by any other person or entity.
13.14 Applicable Law and Venue.
This Agreement shall be construed and enforced consistent with the internal laws of the
State of California, without regard to conflicts of law principles. Any action at law or in equity
arising under this Agreement or brought by any Party for the purpose of enforcing, construing, or
determining the validity of any provision of this Agreement shall be filed and tried in the
Superior Court of the County of Orange, State of California, or the United States District Court
for the Central District of California. The Parties waive all provisions of law providing for the
removal or change of venue to any other court.
13.15 Section Headines.
All section headings and subheadings are inserted for convenience only and shall not
affect construction or interpretation of this Agreement.
13.16 Incorporation of Recitals and Exhibits.
All of the Recitals are incorporated into this Agreement by this reference. Exhibits A and
B are attached to this Agreement and incorporated by this reference as follows:
EXHIBIT DESCRIPTION
DESIGNATION
A Legal Description of Property
B Depiction of the Property
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13.17 Recordation.
The City Clerk of City shall record this Agreement and any amendment, modification, or
cancellation of this Agreement in the Office of the County Recorder of the County of Orange
within the period required by California Government Code section 65868.5 and City of Newport
Beach Municipal Code section 15.45.090. The date of recordation of this Agreement shall not
modify or amend the Effective Date or the Termination Date.
[Signature page follows]
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SIGNATURE PAGE TO
DEVELOPMENT AGREEMENT
"DEVELOPER"
NEWPORT CENTER ANACAPA ASSOCIATES, LLC,
a California limited liability company
By:
Ronald E. Soderling, its Manager
"CITY"
CITY OF NEWPORT BEACH
By:
Diane B. Dixon, Mayor
ATTEST:
Leilani I. Brown, City Clerk
APPROVED AS TO FORM:
Aaron Harp, City Attorney
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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 )
County of Orange )
On before me, a Notary Public,
personally appeared who proved to me on the basis of
satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ics), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
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 )
County of Orange )
On before me, a Notary Public,
personally appeared who proved to me on the basis of
satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ics), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
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EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE COUNTY OF ORANGE, STATE OF
CALIFORNIA,AND IS DESCRIBED AS FOLLOWS:
PARCEL A
PARCEL 1, IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS
PER MAP FILED IN BOOK 29, PAGE 34, OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY.
PARCEL B:
A NON-EXCLUSIVE EASEMENT FOR INGRESS AND EGRESS OVER PARCEL A, IN THE CITY OF
NEWPORT BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP FILED IN BOOK 76
PAGE 32 OF PARCEL MAPS,IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPTING THEREFROM ANY AND ALL OIL, OIL RIGHTS,MINERALS,MINERAL RIGHTS,NATURAL
GAS RIGHTS, AND OTHER HYDROCARBONS BY WHATSOEVER NAME KNOWN, GEOTHERMAL
STEAM, AND OTHER MATERIAL RESOURCES AND ALL PRODUCTS DERIVED FROM ANY OF THE
FOREGOING, THAT MAY BE WITHIN OR UNDER THE LAND, TOGETHER WITH THE PERPETUAL
RIGHT OF DRILLING, MINING, EXPLORING AND OPERATING THEREFOR AND STORING IN AND
REMOVING THE SAME FROM THE LAND OR ANY OTHER LAND, INCLUDING THE RIGHT TO
WHIPSTOCK OR DIRECTIONALLY DRILL AND MINE FROM LANDS OTHER THAN THOSE CONVEYED
HEREBY, OIL OR GAS WELLS, TUNNELS AND SHAFTS INTO, THROUGH OR ACROSS THE
SUBSURFACE OF THE LAND,AND TO BOTTOM SUCH WHIPSTOCKED OR DIRECTIONALLY DRILLED
WELLS, TUNNELS AND SHAFTS UNDER AND BENEATH OR BEYOND THE EXTERIOR LIMITS
THEREOF, AND TO REDRILL, RETUNNEL, EQUIP, MAINTAIN, REPAIR, DEEPEN AND OPERATE ANY
SUCH WELLS OR MINES, WITHOUT HOWEVER, THE RIGHT TO DRILL,MINE, STORE, EXPLORE AND
OPERATE THROUGH THE SURFACE OR THE UPPER 500 FEET OF THE SUBSURFACE OF THE LAND,
AS RESERVED IN THE DEED FROM THE IRVINE COMPANY, A MICHIGAN CORPORATION,
RECORDED FEBRUARY 20, 1992,AS INSTRUMENT NO. 92-099183,OF OFFICIAL RECORDS.
ALSO EXCEPTING THEREFROM ANY AND ALL WATER, RIGHTS OR INTERESTS THEREIN, NO
MATTER HOW ACQUIRED BY GRANTOR, AND OWNED OR USED BY GRANTOR IN CONNECTION
WITH OR WITH RESPECT TO THE LAND, TOGETHER WITH THE RIGHT AND POWER TO EXPLORE,
DRILL,REDRILL, REMOVE AND STORE THE SAME FROM THE LAND OR TO DIVERT OR OTHERWISE
UTILIZE SUCH WATER RIGHTS OR INTERESTS ON ANY OTHER PROPERTY OWNED OR LEASED BY
GRANTOR, WHETHER SUCH WATER RIGHTS SHALL BE RIPARIAN, OVERLYING, APPROPRIATIVE,
LITTORAL, PERCOLATING, PRESCRIPTIVE, ADJUDICATED, STATUTORY OR CONTRACTUAL, BUT
WITHOUT, HOWEVER,ANY RIGHT TO ENTER UPON THE SURFACE OF THE LAND IN THE EXERCISE
OF SUCH RIGHTS, AS RESERVED IN THE DEED FROM THE IRVINE COMPANY, A MICHIGAN
CORPORATION, RECORDED FEBRUARY 20, 1992, AS INSTRUMENT NO. 92-099183, OF OFFICIAL
RECORDS.
APN:442-231-12
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EXHIBIT B
DEPICTION OF PROPERTY
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Exhlbk. 11 of 2
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112/066731-0108
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:LO7
PKOJECT SUMMARY FLOOR AREA:
MULTISTORY PROJECT ALLOWABLE AREA ,058 S.F. (3: R BAS )
-MJECT DESCRIPTION TOTAL PROPOSED FLOOR AREA-
THE PROJECT CONSISTS OF(1)MULT-STORY RESIDENTIAL: 164,058 S.F. (3:1 FAR)
RESIDENTIAL BUILDING.
7 STORIES OF RESIDENTIAL OPEN SPACE7
3 LEVELS OF UNDERGROUND PARKING REQUIRED
BUILDING SHALL BE COMPLETELY SPRINKLERED. COMMON OPEN SPACE 75 S.F./UNIT 4,425 S.F.
BUILDING CODE:CALIFORNIA BUILDING CODE 2013 PRIVATE OPEN SPACE 5%OF TOTAL 7,344 S.F.
OCCUPANCY TYPE:R-2
TOTAL REQUIRED 11,769 S.F
J&DING TYPE OF CONSTRUCTIONE
TYPE I-FULLY SPRINKLERED
COMMON OPEN SPACE 4,425 S.F.
CITY OF NEWPORT BEACH PRIVATE OPEN SPACE 7,344 S.F.
TOTAL REQUIRED 11,769 S.F.
LOT COVERAGE: SETBAC
LOT AREA: 54,686 S.F. REQUIRED
BUILDING FOOTPRINT:29,800 S.F. ABOVE UM BELOW PO U
LOT COVERAGE: 55%(EXISTING) ANACAPA FRONTAGE- 15 FT 15 FT
BUILDING DEPARTMENT GROSS AREA: NEWPORT CENTER DR- 15 FT 15 FT
1 ST FLOOR AREA: +/-29,800 S.F. WESTERN PRTY LINE- 0 FT 0 FT
2ND FLOOR AREA: +/-26,236 S.F. SOUTHERN PRTY LINE- 0 FT 0 FT
3RD FLOOR AREA: +/_26,201 S.F. PROVIDED
4TH FLOOR AREA: +l-26,201 S.F. ABOVE PODIUM` BELOW PODIUM
5TH FLOOR AREA: +-26,201 S.F. ANACAPA FRONTAGE- 20 FT 15 FT
6TH FLOOR AREA: +/1_26,201 S.F. NEWPORT CENTER DR- 20 FT 15 FT
7TH FLOOR AREA: +/-16,573 S.F. WESTERN PRTY LINE- 15 FT 0 FT
B2 AREA: +l1-43,755 S.F.
B1 AREA: +-43,973 S.F. SOUTHERN PRTY LINE- 20 FT* 7 FT
B3 AREA: +l-43.755 S.F. *NOTE: DOES NOT INCLUDE ARCHITECTURAL PROJECTIONS
TOTAL +/_308,896 S.F.
PARKING GARAGE FLOOR AREA:+/-131,483 S.F.
PARKING:
REQUIRED
RESIDENTIAL 98 STALLS
VISITOR 25 STALLS
PROVIDED
RESIDENTIAL 98 STALLS
VISITOR 25 STALLS
Exhibit -page 2 of 2
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Planning Commission Resolution No. ####
Page 24 of 34
EXHIBIT "G"
CONDITIONS OF APPROVAL
(Project-specific conditions are in italics)
Site Development Review Conditions
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. The site development review authorizes the approval of a 45-unit condominium
development as specified in the adopted Planned Community Development Plan. The
project height shall be modified to roof height of 55 feet with mechanical equipment up to
61 feet as measured from average grade.
3. The project shall adhere to the development standards established in the adopted
Planned Community Development Plan for the project site.
4. The applicant shall comply with all project design features, mitigation measures, and
standard conditions contained within the approved mitigation monitoring reporting
program (MMRP) of EIR SCH No. 2016011032 for the project.
5. Any change in operational characteristics, expansion in area, or other modification to
the approved plans, shall require an amendment to this Site Development Review or
the processing of a new Site Development Review.
6. This approval shall expire unless exercised within 24 months from the date of approval
as specified in NBMC Section 20.54.060 (Time Limits and Extensions), unless an
extension is otherwise granted.
7. 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.
8. The project is subject to all applicable City ordinances, policies, and standards, unless
specifically waived or modified by the conditions of approval.
9. 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 this
approval.
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Planning Commission Resolution No. ####
Page 25 of 34
10. A copy of the Resolution, including conditions of approval Exhibit "G" shall be
incorporated into the Building Division and field sets of plans prior to issuance of the
building permits.
11. Prior to issuance of building permits, the applicant shall submit to the Planning Division
an additional copy of the approved architectural plans for inclusion in the project file.
The plans shall be identical to those approved by all City departments for building
permit issuance. The approved copy shall include architectural sheets only and shall
be reduced in size to 11 inches by 17 inches. The plans shall accurately depict the
elements approved by this Site Development Review and shall highlight the approved
elements such that they are readily discernible from other elements of the plans.
12. 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.
13. Prior to the issuance of building permits, Fair Share Traffic Fees shall be paid for the new
dwelling units (currently $1,748.00 per new additional dwelling unit) in accordance with
NBMC Chapter 15.38. The applicant shall be credited for the reduction in commercial
square footage and the remaining balance shall be charged or credited to the applicant.
14. Prior to the issuance of building permits, San Joaquin Transportation Corridor Fees shall
be paid for the new dwelling units (currently $2,398.00 per new additional dwelling unit).
The applicant shall be credited for the reduction in commercial square footage and the
remaining balance shall be charged or credited to the applicant.
15. Prior to the issuance of building permits, the applicant shall obtain property owner
authorization for any improvements proposed on adjacent private properties (160
Newport Center Drive , APN No. 442-231-14, and 202 Newport Center Drive, APN No.
442-161-17).
16. 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 demonstrating compliance with the
requirements of NBMC Chapter 14.17 (Water-Efficient Landscaping Ordinance).
17. 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.
18. The project design shall maintain a 3-foot wide landscaped planter at the western edge
of property. Retaining walls along the podium level shall not exceed 10 feet in height
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measured from existing grade as shown on the title constraints survey. Required
guardrails shall be open in design.
19. The site shall not be excessively illuminated based on the luminance
recommendations of the Illuminating Engineering Society of North America, or, if in the
opinion of the Director of Community Development, the illumination creates an
unacceptable negative impact on surrounding land uses or environmental resources.
The Director may order the dimming of light sources or other remediation upon finding
that the site is excessively illuminated.
20. Prior to the issuance of a building permits, the applicant shall prepare photometric
study in conjunction with a final lighting plan for approval by the Planning Division. The
survey shall show that lighting values are "1" or less at all property lines.
21. Prior to the issuance of building permits, the plans shall demonstrate that the exterior
fagade shall utilize low reflective building materials and window glazing tint to reduce
nighttime light and glare.
22. All trash shall be stored within the building or within dumpsters stored 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.
23. The exterior of the property shall be maintained free of litter and graffiti at all times. The
homeowner's association 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.
24. The homeowner's association 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 NBMC Title 14, including all future
amendments (including Water Quality related requirements).
25. All proposed signs shall be in conformance with an approved Comprehensive Sign
Program for the project site and provisions of NBMC Chapter 20.42 (Signs).
26. A Special Events Permit is required for any event or promotional activity outside the
normal operational characteristics of the approved use, as conditioned, or that would
attract large crowds, involve the sale of alcoholic beverages, include any form of on-
site media broadcast, or any other activities as specified in the Newport Beach
Municipal Code to require such permits.
27. 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,
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and agents from and against any and all claims, demands, obligations, damages,
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 150 Newport Center residential project including,
but not limited to, the General Plan Amendment No. GP2014-003, Zoning Code
Amendment No. CA2014-008, Planned Community Development Plan No. PC2014-004,
Site Development Permit No. SD2014-006, Tentative Tract Map No. NT2015-003,
Development Agreement No. DA2014-002, certification of Environmental Impact Report
No. ER2015-002. 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
28. The new elevator shall be gurney-accommodating in accordance with Article 30 of the
California Building Code (2001 edition).
29. Automatic fire sprinklers shall be required for all new construction. The sprinkler
system shall be monitored by a UL certified alarm service company.
30. A 2A 1OBC Fire Extinguisher will be required for the R-2 Occupancy. The extinguisher
must be located so that it is not more than 75 feet travel distance to reach an
extinguisher from the front door of each unit.
31. The parking garage is classified as an ordinary hazard occupancy which requires a
2A20BC fire extinguisher. This fire extinguisher will cover 1500 square feet of floor
area and the extinguisher must be located so that it is not more than 50 feet travel
distance to reach an extinguisher from the garage floor area.
32. A Knox box will be required for the proposed structure. The Knox box must contain
keys which will gain entrance to the building in an emergency situation. Also, keys to
any mechanical room or equipment room will need to be placed in the Knox box.
33. As per California Fire Code Section 507.5.1, a fire hydrant will be required within 400
feet of all portions of every structure. The number of fire hydrants will be determined
by the required fire flow for each structure. Prior to the issuance of building permits, a
fire flow work sheet will need to be provided for the project and can be obtained from
Newport Beach Fire Department Guidelines & Standards B.01.
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34. An address shall be placed on all new buildings in such a position that it is plainly
visible and legible from the street or road fronting the property.
35. Effective emergency responder radio coverage (800 MHz) will be required and shall
comply with Newport Beach Fire Department Guideline &Standards D.05 Public Safety
Radio System coverage.
36. Stairwell signage shall meet Newport Beach Fire Department Guideline & Standards
D.01.
37. The following items will be required and will necessitate a separate plan submittal and
permit: NFPA 111333 Fire Sprinkler System, Fire Alarm System, Standpipe System,
and 800 MHz.
38. Gurney sized elevator with Phase I recall will be required as per C.B.C. Sec.3002.4a.
39. Smoke detectors will be required for the individual dwelling units as per C.F.C. Sec.
907.2.11.2.
40. Areas with an A" Occupancy will need to meet all requirements for an assembly type
occupancy referenced in C.F.C. Section 1028.
41. Dumpster locations will need to meet Newport Beach Fire Department Guideline &
Standard A.16 with regard to requirements for locations of dumpsters.
42. Car charging stations will need to be shown on plans and must comply with National
Electrical Code 625.5.
43. Emergency power outlets are required as per Newport Beach Fire Department
amendment to the California Fire Code. Amendment states: Provide and install
electrical outlets (120 volt, duplex) that are connected to the emergency generator
circuitry/system when a generator is required by Section 604.2 of the CFC. The
electrical outlets shall be provided in the following locations:
a. In the main exit corridor of each floor, adjacent to each exit enclosure.
b. On every level in every stairwell.
c. In each elevator lobby.
d. In public assembly areas larger than 1,500 square feet.
e. In every fire control room.
f. In such other areas as may be designated by the fire code official.
44. An exclusive off-street staging area shall be provided for emergency vehicles. The size
of the area will need to accommodate the height and width of a fire engine and medic
unit and should be close to the main entrance into the development. The minimum
width of the emergency access area is 20 feet to accommodate the ladder truck
stabilizers. The access area needs to be designed for ladder use; therefore the access
area shall be open from ground to building height with a vertical clearance of 14-feet
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45. Exterior walkways must be shown with plan review and designed to accommodate
hand carrying of firefighter ladders for use of "ground" laddering of building. The
largest ladder utilized will be 35-foot ladder with a storing length of 20.5 feet long.
46. Laddering opportunities must be provided around the perimeter of the structure in
areas designated by the Fire Department. Landscape will need to be minimized in
these areas and a "laddering pad' (rectangular concrete area) located in the planter
area may be necessary for the ladder footing.
Building Division Conditions
47. 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. Approval from the Orange County
Health Department is required prior to the issuance of a building permit.
48. 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 two 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 30 minutes for trucks and heavy equipment
Off-Site Impacts
• Encourage carpooling 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
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Planning Commission Resolution No. ####
Page 30 of 34
top six-inch surface layer, subject to review/discretion of the geotechnical
engineer.
49. Prior to the issuance of grading permits, a Storm Water Pollution Prevention Plan
(SWPPP) and Notice of Intent (NOI) to comply with the General Permit for
Construction Activities shall be prepared, submitted to the State Water Quality Control
Board for approval and made part of the construction program. The project applicant
will provide the City with a copy of the NOI and their application check as proof of filing
with the State Water Quality Control Board. This plan will detail measures and
practices that will be in effect during construction to minimize the project's impact on
water quality.
50. 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.
51. 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.
52. The building shall be designed as a Type I-A construction.
53. Limitations exist on the amount of opening allowed in a Type I building, when the
exterior wall is less than 15 feet from the property line and less than 20 feet from the
property line.
54. A grading and shoring bond shall be required prior to grading or building permit
issuance. The bond shall be based on the total value of excavation, grading and
shoring work.
55. A geotechnical report shall be submitted to the Building Division for review prior to
permit issuance. The review shall include a study on the potential for liquefaction.
56. A drainage and hydrology study shall be submitted for review prior to permit issuance.
57. Cal Green and Energy commissioning and acceptance testing may be required at the
time of permit issuance.
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Planning Commission Resolution No. ####
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58. All residential units must be compliant for disabled access. Units are to be accessible
and adaptable.
59. The subterranean parking garage shall provide 8-foot 2-inch minimum vehicular
clearance.
60. A shoring plan shall be submitted prior to building permit issuance.
Tentative Tract Map
61. A Tract Map shall be recorded. The Map shall be prepared on the California
coordinate system (NAVD88). Prior to the recordation of the Map, the
surveyor/engineer preparing the Map shall submit to the County Surveyor and the City
of Newport Beach a digital-graphical 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 Sub article 18. The Map submitted to the City of Newport Beach
shall comply with the City's CADD standards. Scanned images will not be accepted.
62. Prior to the recordation of the Tract Map, the surveyor/engineer preparing the map
shall tie the boundary of the map into the horizontal control system established by the
County Surveyor in a manner described in Section 7-9-330 and 7-9-337 of the Orange
County Subdivision Code and the Orange County Subdivision Manual, sub article 18.
Monuments (one inch iron pipe with tag shall be set on each lot corner unless
otherwise approved by the Subdivision Engineer). Monuments shall be protected in
place if installed prior to completion of the construction project.
63. Applicant shall establish survey points within the public right-of-way along the project
frontages of Anacapa Drive and Newport Center Drive East to monitor movement of
City facilities (utilities, sidewalk, street, etc.) due to the construction of the proposed
project. Any damage to said City facilities shall be repaired at the project's sole
expense.
64. Prior to the recordation of the Tract Map, a Subdivision Agreement shall be obtained
and approved by the City Council.
65. Prior to Final Map approval, the applicant shall provide a Faithful Performance Bond
and a Labor and Materials Bond, each for 100 percent of the estimated public
improvements. An engineer's cost estimate shall be prepared by a Registered Civil
Engineer and approved by the Public Works Director.
66. Tentative Tract Map No. 17915 shall expire 24 months from the date of approval
pursuant to NBMC Chapter 19.16.010, unless an extension is otherwise granted by the
City for the period of time provided for in the Development Agreement pursuant to the
provisions of California Government Code Section 66452.6(a).
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67. Prior to recordation of the tract map, Park Fees shall be paid for the 45 new dwelling
units (currently $26,125.00 per unit) in accordance with City Council Resolution No.
2007-30.
68. City Council approval of Tentative Tract Map No. 17915 is in conjunction with its
approval of Development Agreement No. DA2012-003 for the same project (the
"DA'). Pursuant to Sections 2.2 and 2.4 of the DA and the terms used therein that are
defined in Section 1 of the DA, the "Term" of the DA becomes effective on the
"Effective Date"of the DA. Tentative Tract Map No. 17915 and the DA comprise parts
of a single integrated action and are not severable from one another. Accordingly,
notwithstanding any other provision set forth in Tentative Tract Map No. 17915 to the
contrary, in no event shall the owner, lessee, or other occupant or any person or entity
holding any interest in the subject property acquire any right to develop or use the
subject property as authorized or provided herein unless and until the Effective Date in
the DA occurs and the Term of the DA commences. In the event the DA is terminated
for any reason before the Effective Date of the DA occurs, including without limitation
as a result of the mutual termination of the DA by the Parties thereto, the occurrence
of an uncured material default under the DA by either Party and a termination of the
DA by the non-defaulting Party, or the failure of the Effective Date of the DA to occur
prior to the deadline set forth in the DA, as said deadline may be extended by mutual
agreement of the Parties to the DA, then in such event Tentative Tract Map No. 17915
automatically shall become null and void and of no further force or effect, without any
need or requirement for the City to schedule any public hearings or take any
affirmative action or actions to revoke or rescind the same.
69. A 5-foot wide pedestrian access easement shall be maintained at the southerly
property line. Permanent structures shall not be permitted within this 5-foot area.
70. Prior to the issuance of building permits, the modular wetland unit for storm water
treatment shown on Sheet 2.0 of the project plans shall be relocated so that it is
outside of the 5-foot pedestrian easement at the southern edge of the subject property.
71. The 3-foot wide pedestrian access easement shall be maintained at the easterly
property line. Permanent structures shall not be permitted within this 3-foot area.
72. No permanent structural encroachments (i.e. tie-backs, caissons, retaining walls, etc.)
within the public right-of-way will be permitted unless otherwise approved by the City
Council.
73. Removable temporary tie-backs (only the detached rod-end may remain) will be
permitted only if the entire removable temporary tie-back is located a minimum of 20
feet deep (measured from shallowest point) and does not project past the curb face
along Newport Center Drive east and Anacapa Drive.
74. The parking garage layout and internal circulation shall comply with City Standard
STD-805-L-A and STD-805-L-8.
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75. The driveway approach and sidewalk within the public right-of-way and easement
areas shall be installed and constructed per City Standard.
76. The two new driveways along Anacapa Drive shall be installed per City Standard STD-
160-L-A or STD-1 61-L or per the waiver of Council Policy Driveway L-2.
77. Prior to the issuance of building permits, the project plans shall be modified to reflect a
stop sign at the internal circulation drive-aisle of Block 100 to ensure that vehicles
traveling east bound can adequately see vehicles exiting the residential parking
structure.
78. Prior to final building permits, the applicant shall reconstruct the curb, gutter, and
sidewalk per City Standards along the entire project frontages of Newport Center Drive
East and Anacapa Drive.
79. Prior to final building permitsthe applicant shall install an ADA compliant curb ramp at
the southerly driveway and Anacapa Drive.
80. Anacapa Drive and Newport Center Drive East area on the City's street-cut
moratorium list. Trenching/damage to said street will require extensive street repair per
City Standard STD-105-L-F.
81. In case of damage done to public improvements surrounding the development site by
the private construction, said damage shall be repaired and/or additional
reconstruction within the public right-of-way shall be required at the discretion of the
Public Works Inspector.
82. All improvements shall comply with the City's sight distance standard STD-110-L.
83. The direct access from the valet/drop-off/pick-up area to the garage shall be one-way
inbound to the garage only and the maximum width shall be 18 feet wide.
84. Ingress and egress access shall be maintained along the southerly access drive from
Anacapa Drive. Open access over the south driveway shall be maintained at all times
during the construction process.
85. Moving vehicle and parcel delivery shall occur at the main building entry off Anacapa
Drive.
86. Trash truck service shall occur at the south driveway and shall not block passing
vehicles or access to the residential garage. A minimum width of 12 feet shall be
maintained for passing vehicles at the south driveway.
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87. Should reclaimed water infrastructure be constructed along Newport Center Drive, the
site's existing potable irrigation system shall be converted and connected to reclaimed
water infrastructure within one year of its availability.
88. All on-site drainage shall comply with the latest City water quality requirements.
89. 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.
90. During the construction process, truck hauling shall be prohibited during the PM peak
hour after 4:00 p.m.
91. Prior to commencement of demolition and grading of the proiect, 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 construction
vehicles shall be minimized by proper use of traffic control equipment and flagman.
92. Prior to commencement of demolition and grading of the proiect, an adequate off-site
employee parking arrangement shall be finalized.
93. Any lane closures shall be subject to the discretion of the Public Works Department
and require a separate Temporary Street and Sidewalk Closure Permit.
94. During construction activities, the project applicant shall allow representatives of
cultural organizations, including Native American tribes (i.e., Gabrieleno Band of
Mission Indians), to access the project site on a volunteer basis to monitor grading and
excavation activities.
95. County Sanitation District fees shall be paid prior to the issuance of any building
permits.
03-03-2015
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Attachment No. PC 2
Draft Resolution for Denial
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RESOLUTION NO. ####
A RESOLUTION OF THE PLANNING COMMISSION OF THE
CITY OF NEWPORT BEACH DENYING GENERAL PLAN
AMENDMENT NO. GP2014-003, CODE AMENDMENT NO.
CA2014-008, PLANNED COMMUNITY DEVELOPMENT PLAN
NO. PC2014-004, SITE DEVELOPMENT REVIEW NO. SD2014-
006, TENTATIVE TRACT MAP NO. NT2015-003,
DEVELOPMENT AGREEMENT NO. DA2014-002, FOR A 45-
UNIT MULTI-FAMILY RESIDENTIAL DEVELOPMENT LOCATED
AT 150 NEWPORT CENTER DRIVE (PA2014-213)
THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS
FOLLOWS:
SECTION 1. STATEMENT OF FACTS.
1. An application was filed by Newport Anacapa Associates, LLC, with respect to property
located at 150 Newport Center Drive, and legally described as Parcel 1 of Resubdivision
No. 282 being a portion of Block 93 of Irvine's subdivision as per map recorded in Book
1, Page 88 of Miscellaneous Record Maps, records of Orange County, California.
2. The applicant proposes the demolition of an existing 8,500-square-foot car-wash,
convenience market, and gas station to accommodate the development of a 6-story 45-
unit residential condominium building with three levels of subterranean parking. The
applicant requests following approvals from the City of Newport Beach:
• General Plan Amendment (GPA) - to change the land use category from CO-R
(Regional Commercial Office) to RM (Multi-Unit Residential) and establish an
anomaly (Table LU2) designation for 45 dwelling units.
• Zoning Code Amendment - to change the Zoning District designation from OR
(Office Regional Commercial) to PC (Planned Community District) over the entire site.
• Planned Community Development Plan - to establish a planned community
development plan (PC) over the entire project site that includes development and
design standards for 45 residential condominium units. The request also includes a
City Council waiver of the minimum site area of 10 acres. A height limit of 75 feet 6
inches with mechanical appurtenances up to 83 feet 6 inches was discussed in the
EIR although a reduced height is also considered.
• Site Development Review - to allow the construction of 45 multi-family dwelling
units.
• Tentative Tract Map -to establish a 45-unit residential condominium tract on a 1.3
acre site.
• Development Agreement - review of a proposed development agreement that would
provide public benefits should the project be approved.
• Environmental Impact Report (EIR) - to address reasonably foreseeable
environmental impacts resulting from the legislative and project specific discretionary
approvals, the City has determined that an Initial Study and Environmental Impact
123
Planning Commission Resolution No. ####
Page 2 of 4
Report (EIR) are warranted for this project pursuant to the California Environmental
Quality Act (CEQA).
3. The subject property is located within the OR (Office Regional Commercial) Zoning
District and the General Plan Land Use Element category is CO-R (Regional Commercial
Office).
4. The subject property is not located within the coastal zone.
5. A study session was held on June 23, 2016, in the Council Chambers at 100 Civic
Center Drive, Newport Beach to introduce the project to the Planning Commission and
review the conclusions of the draft EIR. No action was taken at the study session.
6. A public hearing was held on July 21, 2016, in the Council Chambers at 100 Civic Center
Drive, Newport Beach. 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
item was continued to the August 18, 2016, Planning Commission Meeting.
7. A public hearing was held on August 18, 2016, in the Council Chambers at 100 Civic
Center Drive, Newport Beach. 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. Pursuant to Section 15270 of the California Environmental Quality Act (CEQA)
Guidelines, projects which a public agency rejects or disapproves are not subject to
CEQA review.
SECTION 3. REQUIRED FINDINGS.
1. Amendments to the General Plan are legislative acts. Neither the City nor State
Planning Law set forth any required findings for either approval or denial of such
amendments.
2. Code amendments are legislative acts. Neither the City Municipal Code nor State
Planning Law set forth any required findings for either approval or denial of such
amendments, unless they are determined not to be required for the public necessity
and convenience and the general welfare.
3. The future development of the property affected by the proposed amendments will not
be consistent with the goals and policies of the Land Use Element of the General Plan.
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Planning Commission Resolution No. ####
Page 3 of 4
Site Development Review
A site development review is required for the construction of five or more residential units
processed in conjunction with a tentative tract map. The site development review analyzes
the project as a whole for compatibility with the site and surrounding land uses.
The Planning Commission may approve a site development review only after making each of
the required findings set forth in Section 20.52.080 (Site Development Review). In this case,
the Planning Commission was unable to make the required findings based upon the
following:
1. The Planning Commission determined, in this case, that the proposed Site
Development Review for 23 residential condominium units is not consistent with the
legislative intent of Title 20 of the NBMC. The proposed project may prove detrimental
to the community.
2. The Planning Commission determined, in this case, that the proposed Site
Development Review for 45 residential condominium units is not consistent proposed
with the General Plan policies due to the incompatible land use, architectural style,
fagade treatments, and height of the proposed project.
3. The design, location, size, and characteristics of the proposed project are not
compatible with the residential and commercial uses in the vicinity. The project may
result in negative impacts to residents and businesses in the vicinity and would not be
compatible with the enjoyment of the nearby residential properties.
Tract Map
A tentative tract map is requested for residential condominium purposes, to create 23
condominium units. The map would also serve to consolidate six parcels and portions of
adjacent vacated alleys into one lot.
The Planning Commission may approve a tentative tract map only after making each of the
required findings set forth in Section 19.12.070 (Required Findings for Action on Tentative
Maps. In this case, the Planning Commission was unable to make the required findings
based upon the following:
1. The Planning Commission determined, in this case, that the proposed map for 49
residential condominium units and associated improvements of the subdivision are
inconsistent with the General Plan and the legislative intent of Title 19 of the NBMC.
The proposed project may prove detrimental to the community.
2. That the site is not physically suitable for the type and density of development.
3. The design, location, size, and characteristics of the proposed subdivision are not
compatible with the surrounding development pattern in the vicinity.
03-03-2015
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Planning Commission Resolution No. ####
Page 4 of 4
PASSED, APPROVED, AND ADOPTED THIS 18TH DAY OF AUGUST, 2016.
AYES:
NOES:
ABSTAIN:
ABSENT:
BY:
Kory Kramer, Chairman
BY:
Peter Zach, Secretary
03-03-2015
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Attachment No. PC 3
Planning Commission Packet from
July 21, 2016
(Available separate due to bulk)
http://ecros.newportbeachca.govNVeb/0/do
c/850970/Page1.aspx
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Attachment No. PC 4
Draft Planning Commission Minutes from
July 21, 2016
129
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NEWPORT BEACH PLANNING COMMISSION MINUTES 7/21/16
S: Dunlap, Hillgren, Kramer, Lawler, Koetting,Weigand
NOES: None
ABSTAIN: ne
ABSENT: Zak
VII. PUBLIC HEARING ITEMS
2. TROESH RESIDENCE APPEAL (PA2015-122)
Site Location: 336 Catalina Drive and 333 La Jolla Drive
Continued to August 18, 2016 under Request for Continuances.
O150 NEWPORT CENTER(PA2014-213)
Site Location: 150 Newport Center Drive Summary:
Community Development Director Brandt introduced the item.
Associate Planner Nova presented a PowerPoint presentation outlining the legislative applications,
changes since the June 23, 2016 study session, vicinity map of the project site, existing residential
development in Statistical Area L-1, Zoning Code Amendment and requested Planned Community
Development Plan with 10-acre minimum waiver, proposed project height, existing building heights in
the south end of the Newport Center area, building setbacks, view impacts, and public comments. She
noted the applicant has decreased the number of units to 45 and reduced the height of the proposed
project to 6 stories (65 feet 6 inches to top of roof) from 7 stories (75 feet 6 inches to top of roof).
Additionally, staff is recommending a further reduction in height to 5 stories(55 feet to the top of roof).
Community Development Director Brandt presented a PowerPoint presentation explaining Charter
Section 423, (Greenlight and/or Measure S analysis) with regard to a major General Plan amendment.
She discussed the threshold calculation and trigger for voter approval. She stated the primary question
before the Planning Commission was whether a General Plan Amendment(GPA) is appropriate for the
property.
Chair Kramer stated the Commission would be reviewing the legislative issues, GPA, code amendment
and planned community development plan. He explained that the site development review, tentative
tract map, Development Agreement (DA) and Environmental Impact Report (EIR) would be considered
at the next hearing.
In response to Vice Chair Koetting, Associate Planner Nova described the extent of the North Newport
Center Planned Community. She explained the application requested by the Irvine Company in 2009 to
incorporate the central portion of Block 100 into the North Newport Center Planned Community. Vice
Chair Koetting questioned why all of Block 100 was not included. He asked about the vision for Fashion
Island. Community Development Director Brandt stated Fashion Island was a regional shopping
destination. She explained the concentration and intensity of development in the upper half of Newport
Center. Vice Chair Koetting questioned why the City previously approved the height increase for Block
100. Associate Planner Nova explained that this was an individual application request made by the
property owner of the middle of Block 100 whereas the other parcels are under a different property
ownership. For this application, she explained staffs consideration of height limits and existing building
heights in the area as a range of heights in Newport Center when preparing a recommendation as to
whether a height increase is appropriate for the area.
Chair Kramer stated it was necessary to determine what was best for Block 100. He discussed
inconsistencies and anomalies in the surrounding blocks. He indicated support for mixed use and
suggested the possibility of a Mixed Use (MU) designation. Associate Planner Nova stated the
applicant requested RM and MU which could be denser. Chair Kramer expressed concern with the
waiver of 10-acre minimum for a planned community district and suggested 150 Newport Center be
incorporated into an existing planned community. Associate Planner Nova stated the project could be
incorporated as a subarea of North Newport Center. Community Development Director Brandt
Page 2 of 8
131
NEWPORT BEACH PLANNING COMMISSION MINUTES 7/21/16
recommended incorporating it into North Newport Center because it is contiguous. Chair Kramer
discussed existing grade and proposed height. Associate Planner Nova stated staff had suggested a
50-foot height limit to the applicant. She explained that by removing one additional floor, the project
height would be 55 feet and the overall height would be 61 feet with appurtenances. Chair Kramer
expressed concern with the setbacks and driveway issues. He stated it was necessary to determine the
appropriate number of units and height.
Commissioner Weigand discussed responses to the EIR and read a portion of the Irvine Company
letter. He requested copies of the responses. Associate Planner Nova explained that responses were
being prepared for CEQA related comment letters and would be available for the August 4, 2016
meeting.
In response to Commissioner Dunlap, Associate Planner Nova stated the project was 1.3 acres. She
stated the EIR considered 49 units and 7 stories.
In response to Commissioner Lawler, Associate Planner Nova explained that the existing 12 planned
community waivers in the City ranged from 0.76 acres to 9.63 acres, with half of those under 2 acres in
area. She explained the benefits of a planned community which provides more flexible development
standards. Community Development Director Brandt clarified the 20 percent reduction in units for prior
General Plan Amendments that applies under Section 423.
In response to Commissioner Hillgren, Community Development Director Brandt stated staff would bring
back options for combining 150 Newport Center in other planned communities within Newport Center
and a breakdown and background of existing planned communities with a waiver of the 10-acre
minimum.
Chair Kramer requested historical background on the 32-foot height limit for properties in Newport
Center.
Commissioner Hillgren discussed height restrictions in relation to the cascading master plan and view
protection. He suggested a taller and thinner rather than a short and wide project.
In response to Vice Chair Koetting about the 100 dwelling unit threshold, Community Development
Director Brandt clarified that there are only 5 unbuilt/unentitled dwelling units remaining in Newport
Center and the proposed application requires an increase in units currently allowed under the General
Plan. She explained that the 100 unit threshold is tied to Charter Section 423 and the trigger for voter
approval. She stated the threshold applies over a rolling 10-year period. Vice Chair Koetting asked if
there were any potential residential sites. Associate Planner Nova stated there is a current application
at the Orange County Museum House site,which consists of 100 proposed dwelling units.
Chair Kramer opened the public hearing.
Mike Lutton, representing the applicant, stated the initial project was for a seven-story building with no
environmental impacts. He explained the reduction to six stories.
Elaine Linhoff stated the opponents had to prove why changing the law was bad. She expressed doubt
about the applicants statement that traffic would be reduced. She stated the only benefit of the project
was increased revenue. She suggested the amendment be denied.
Enrique Gonzalez suggested implementation of the Specific Plan. He suggested recycled water be
required for car washes.
Tom Fredericks asked if displacement of car wash customers were included in the car trip calculations.
He stated the residents would drive to and from the project. He questioned the less than minimal
footprint increase.
Jeffery Stephan stated he was the former carwash owner. He stated the carwash recycled water and it
was a good business.
Page 3 of 8
132
NEWPORT BEACH PLANNING COMMISSION MINUTES 7/21/16
Dennis Baker, representing SPON, read comments from their letter sent to the Planning Commission
regarding the DEIR, highlighting the inappropriateness of a Planned Community Development(PCD)as
an egregious example of spot zoning and precedent for relaxing height limitations and use of PCD for
small parcels.
Beth Kiley expressed concern about setting a bad precedent. She stated the project was a 34-unit per
acre development, which would change the lifestyle in Newport Beach. She urged the Commission to
retain the General Plan vision.
Debbie Stevens expressed appreciation for staff and Planning Commission review of the project. She
stated she did not support the waiver for a Planned Community nor the height. She requested the
opportunity to review the response to comments on the EIR.
Lorian Petry discussed the City Hall location which was initially intended to be a freeway exit. She
described the City's General Plan as a desired end through 2025 and urged the Commission to
implement the vision.
Allan Beek discussed development measures and stated the people did not want the development. He
stated that staff had thoroughly analyzed whether the project could be approved but urged the Planning
Commission to carefully consider whether the project should be approved.
Jean Watt expressed disagreement with the application of prior land use changes toward the current
Section 423 thresholds and concern about the "domino effect' of increased project heights. She stated
the precedent setting resulted in different landscape in Newport Center.
Cindi Schwartz, owner of Muldoon's, discussed the 200 block of Newport Center. She questioned why
the applicant was not sensitive to blocking the views from Muldoon's. She stated the scale, height and
width of the development must be considered. She urged the Commission to implement the General
Plan and retain the commercial zoning. She suggested two or three stories should be adequate.
Jim Warren suggested that the parameters for the property have been set and that the applicant should
make the project fit within the rules.
Susan Skinner suggested that the project should consider increases due to traffic diverted to other car
washes. She expressed concern about the project acting as a tipping point for more intense
development characteristic of Los Angeles and requested the Commission deny the proposed
development. She stated the project required a Greenlight vote as a result of the 79 dwelling units
associated with the San Joaquin Plaza project and emphasized that the ballot box provides residents
with a powerful voice and recourse for the bad choices of City leaders.
Nancy Skinner commended the Commission for its thoughtful consideration of the project. She
expressed concern with development exceeding the 2006 General Plan and impacting the charm and
character of the community. She stated the project was too tall and massive. She urged the
Commission to deny the exceptions and enforce the General Plan.
Carl Cassidy urged the Commission to take a holistic approach with fiscal responsibility. He discussed
potential litigation when going against the public.
Jim Mosher stated the planning staff did not realize the City's rigid limitations on structure height. He
discussed the 50-foot height limits for Block 100. He discussed conversion of units and the Greenlight
policy.
Chair Kramer closed the public hearing.
Mr. Lutton discussed outreach and efforts to benefit the community. He stated they owned and
operated the car wash and new carwashes were opening at nearby gas stations.
Page 4 of 8
133
NEWPORT BEACH PLANNING COMMISSION MINUTES 7/21/16
Community Development Director Brandt corrected the typographical error on page 4 stating it should
read 69.2% rather than 60.2%. She acknowledged the time needed to review the response to
comments on the EIR and recommended continuing the matter to August 18, 2016.
Chair Kramer stated the proposed continuance seemed reasonable. Mr. Lutton concurred.
Commissioner Weigand stated the Museum House study session was tentatively scheduled for August
18, 2016 as well.
Commissioner Lawler discussed existing planned community development waivers of the 10-acre
minimum and requested further analysis of these waivers.
In response to Commissioner Hillgren, Associate Planner Nova discussed the possibility of incorporating
the project into the North Newport Center Community.
Chair Kramer stated the issues were height, number of units, and intensity.
Vice Chair Koetting thanked the Commission, staff, and public for its input. He stated there was work to
be done on the project.
Commissioner Dunlap stated he was also impressed with the public comment. He stated he heard the
community did not want residential on the site. He discussed alternatives which could be worse. He
agreed with looking into the possibility of tying the project into another planned community.
Chair Kramer stated he did not see a problem with changing the zoning to residential. He stated the
issue was the zoning code amendment and opportunity for planned community.
Motion made by Chair Kramer and seconded by Commissioner Weigand to continue the hearing to August 18,
2016.
AYES: Dunlap, Hillgren, Kramer, Lawler, Koetting,Weigand
NOES: None
ABSTAIN: None
ABSENT: Zak
RECESS
Chair Kramer called a recess at 9:03 p.m. The meeting reconvened at 9:09 p.m.with all Commissioners
present except Commissioner Zak.
VIII. RENT BUSINESS
ITEM NO. WEST NEWPROT MESA STREETSCAPE MASTER PLAN (PA2015-138)
Location: West Newport Mesa
Associate P er Ben Zdeba gave a brief introduction of the project and introduced the
consultant for the ter Plan, Brian Hannegan of RRM Design Group.
Mr. Hannegan explained the Is of the Master Plan, outreach efforts, and existing and
proposed improvements.
In response to Vice Chair Koetting's comment a t undergrounding utilities in the area, Mr.
Hannegan noted that would not be part of the prop d improvements; however, should
undergrounding be completed, the Master Plan would sti applicable to the increased
parkway area.
Mr. Hannegan discussed proposed trees and shrubs and the near-term phase.
Page 5 of 8
23.4
Attachment No. PC 5
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Attachment No. PC 6
Residential Development in Statistical
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