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HomeMy WebLinkAbout1770 - RECOMMEND APPROVAL OF NP, UP. MD, AND DA, AND ADOPT STATEMENT OF OVERRIDING CONSIDERATIONS__1107 JAMBOREE ROADRESOLUTION NO 1770 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH RECOMMENDING APPROVAL OF PARCEL MAP NO. 2007 -003, USE PERMIT NO. 2005 -046, MODIFICATION PERMIT NO. 2007 -095, AND DEVELOPMENT AGREEMENT NO. 2005 -002, AND ADOPTION OF A STATEMENT OF OVERRIDING CONSIDERATIONS FOR THE HYATT REGENCY NEWPORT BEACH HOTEL EXPANSION AND TIMESHARE PROJECT LOCATED AT 1107 JAMBOREE ROAD (PA2005 -212). WHEREAS, an application was filed by Ken Cruse, on behalf of Sunstone Hotels, requesting approval of Parcel Map No. 2007 -003, Use Permit No. 2005 -046, Modification Permit No. 2007 -095, and Development Agreement No. 2005 -002, with respect to property located at 1107 Jamboree Road, and legally described as Parcels 1 and 2 as shown on a Parcel Map recorded in Book 17, Page 3, of Maps in the Office of the County Recorder of Orange County, to expand the existing Hyatt Regency Newport Beach hotel. Proposed improvements include the addition of 88 timeshare units, a new 800 -seat ballroom facility, a new 10,072- square -foot spa and fitness center, a new housekeeping and engineering building, and a two -level parking garage. Project implementation requires the demolition of 12 existing hotel rooms, the existing 3,190 - square -foot Terrace ballroom, and the existing engineering and maintenance building, and removal of the existing nine -hole golf course; and WHEREAS, public hearings were held on October 23, 2008, and November 6, 2008, in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time, place and purpose of the meeting was given in accordance with the Municipal Code. Evidence, both written and oral, was presented to and considered by the Planning Commission at this meeting; and WHEREAS, the Final Environmental Impact Report (State Clearinghouse No. 2006121052) recommended for certification by the Planning Commission identifies potential significant impacts to the environment and certain mitigation measures designed to reduce or avoid these impacts to a less than significant level, with the exception of one significant unavoidable impact that will require the adoption of a Statement of Overriding Considerations; and WHEREAS, 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; and Planning Commission Resolution No. Page 2 of 31 WHEREAS, the Land Use Element of the General Plan designates the project site as Visitor Serving Commercial (CV), which is intended to provide for accommodation, goods, and services intended to primarily serve visitors to the City. The project site, in particular, is allocated a maximum development limitation of 479 hotel rooms (Anomaly No. 52). The demolition of the 12 traditional hotel rooms and construction of the 88 new timeshare rooms results in a total room count of 479 rooms, consistent with maximum development limitation for the site. The Land Use Element does not establish a maximum square footage development limit for the proposed hotel's ancillary uses (i.e. ballroom, spa, and clubhouse); and WHEREAS, the proposed project is consistent with Land Use Policy 5.2.1 that requires that new development within existing commercial districts centers and corridors complement existing uses and exhibit a high level of architectural and site design in consideration of a number of design principles. The proposed project has been designed to exhibit high - quality architecture and site design. The timeshare buildings and ballroom facility would include modulated building masses and rooflines that would provide visual relief and aesthetically pleasing building facades. The inclusion of architectural elements such as balconies, tower features, and ornamental windows and the variation in building elevations and protrusions would also enhance the visual quality of the buildings. The proposed lighting scheme would also provide a means for highlighting building details. The proposed project also includes a comprehensive landscaping plan that would include existing mature and proposed trees, shrubs, and ornamental ground cover and a lighting plan for highlighting of prominent landscaping elements; and WHEREAS, the proposed project is consistent with Land Use Policy 5.2.2 that requires commercial uses adjoining residential neighborhoods be designed to be compatible and minimize impacts through a number of techniques. The proposed project has been designed in a manner that would be compatible with the surrounding residential uses through the use of high - quality architecture, a comprehensive landscape plan and lighting plan, and an access and circulation plan that would adequately serve the existing and proposed hotel uses on- and off -site. The existing parking area light poles would be removed and replaced with modern light poles designed with full cut -off features that would cast light downwards and minimize light spillage and glare impacts. The proposed architecture would complement the surrounding architecture, including the Bayview Landing Senior Apartments to the south. The proposed project would also provide a comprehensive landscape plan that would include existing mature and proposed trees and shrubs. The dense landscaping components would adequately buffer buildings, structures, and parking areas from surrounding areas and roadways; and WHEREAS, the Coastal Land Use Plan (CLUP) of the Local Coastal Program sets forth goals, objectives, and policies that govern the use of land and water in the coastal zone and addresses land use and development, public access and recreation, and coastal resources protection in accordance with the California Coastal Act. The proposed subdivision is consistent with the CLUP for the following reasons: Planning Commission Resolution No. Page 3 of 31 1. The site is designated as Visitor- Serving Commercial (CV -B). This designation is intended to provide for accommodations, goods, and services intended for visitors to the City. The proposed timeshare units are visitor serving as they provide overnight lodging accommodations and other services to visitors to the coastal zone. The proposed project will provide expanded accommodations and services in the City and result in a total gross floor area of 374,104 square feet. This equates to a 0.34 floor area to land area ratio, which is below the 0.50 to 1.25 floor area ratio permitted under the CV -B land use designation. 2. The project has been designed so that grading and required fuel modification activities would completely avoid disturbance of all off -site delineated coastal sage scrub (CSS) vegetation and that a minimum 50 -foot buffer would be provided between the proposed timeshare structures and the CSS vegetation. To ensure project lighting along the northern perimeter of the site does not cause a significant impact to nesting gnatcatchers, a mitigation measure has been proposed requiring all lighting within 100 feet of the CSS to consist of low intensities, directed away from the CSS habitat, and review of the lighting plans by a qualified biologist. 3. The project design proposes the use of native, fire- resistant species, planted exclusively in the Special Treatment Zone that is the 50 -foot buffer between the environmentally sensitive habitat areas (ESHAs) and the proposed buildings. The native vegetation would be low- growing grasses and forbs that would require only periodic minor maintenance that would not result in any degradation of the adjacent ESHA. The species selected are native to the coastal ecosystem of Central Orange County and would provide transitional habitat for foraging for a wide suite of native species that also utilize the adjacent coastal sage scrub ESHA. 4. The proposed project will not impact coastal resources nor the ability of the public to reach, use or view the shoreline of coastal waters or inland coastal recreation areas and trails. 5. The project includes 916 parking spaces, which exceeds the minimum parking requirements of the Zoning Code and exceeds the projected peak parking demands as illustrated by the traffic analysis prepared for this project. 6. Policies 4.4.1 -1 through 4.4.2 -3 of the CLUP pertain to the design of structures to protect public coastal views and preserve or enhance the visual qualities of the coastal zone. Coastal views from designated roads are to be protected and enhanced. There are two such coastal view roads in close proximity to the project site: Back Bay Drive and a short segment of Jamboree Road north of the project site. The coastal views from Back Bay Drive are to the Back Bay and not the project site; therefore, there is no impact. Visual Simulation 1 (Figure 5.1 -2 of the DEIR) is from a vantage point nearest the Jamboree Road segment; the simulation indicates that no coastal views currently exist from this location. The Planning Commission Resolution No. Page 4 of 31 DEIR also includes view simulations from other public vantage points (Visual Simulations 2 through 9) in the immediate vicinity of the site and concludes that project implementation will not impact any public views. WHEREAS, the proposed sales, management, and contingency plans adequately address the purpose of Section 20.84.040 of the Zoning Code, and in conjunction with the recommended conditions of approval, should not negatively impact surrounding uses; and WHEREAS, Section 20.84.050 of the Zoning Code requires that the City and the operator of a timeshare project enter into a development agreement relating to the amount of tax payable to the City by a timeshare owner for the right of occupancy of any timeshare unit. In exchange for vested rights to construct the project, the applicant has agreed to the following terms: • Timeshare Development- Payment of an in -lieu transient occupancy tax fee of Three Million Dollars ($3,000,000). The first half of the fee shall be paid at the time of recording the final parcel map or issuance of the first timeshare building permit, which ever is sooner. The second half of the fee shall be paid at the issuance of the first timeshare building permit. • Visitor and Recreational FaciI!ties /Marinapark- As a public benefit, a visitor and recreational facilities fee of Two Million Dollars ($2,000,000) shall be paid at the time of issuance of the first timeshare building permit. This fee shall be used for improvements that provide visitor and recreational facilities at Marinapark or at any other site designated by the City, at its sole discretion. The fee may be used by the City to provide public access to Newport Bay, public parking, picnic areas, playground equipment, basketball and tennis courts, concessions, and recreational programs. • Off -Site Water Quality Improvements- As a public benefit, payment of One Million Dollars ($1,000,000) for off -site water quality improvements shall be paid at the time of recording the final parcel map or the issuance of the first timeshare building permit, which ever is sooner. The City shall use the fee to pay for specific water quality improvements identified in the draft agreement. The City retains discretion to select the specific improvements for implementation from the list, or to identify other water quality improvements adjacent to Upper Newport Bay and the Dunes Resort and in the general vicinity of the property as may be deemed appropriate by the City. • Cancellation of CIOSA Agreement- The CIOSA Agreement shall automatically terminate on the effective date of the proposed development agreement. • Maintenance of CIOSA Pre -Paid Transportation Fund- The cancellation of CIOSA terminates the parties' remaining rights and obligations under the CIOSA, Planning Commission Resolution No. Page 5 of 31 including any obligation of the City to repay funds that were provided pursuant to the CIOSA. The City may retain any balance of pre -paid transportation funds the City may be holding as a result of unused CIOSA mitigation. The City may use any such remaining balance of prepaid transportation funds for transportation improvements in accordance with the Protocol Agreement for CIOSA. WHEREAS, the Development Agreement is consistent with provisions of state law (California Government Code sections 65864 - 65869.5) and local law (Municipal Code chapter 15.45) that authorize binding agreements that: (i) encourage investment in, and commitment to, comprehensive planning and public facilities financing; (ii) strengthen the public planning process and encourage private implementation of the local general plan; (iii) provide certainty in the approval of projects in order to avoid waste of time and resources; and (iv) reduce the economic costs of development by providing assurance to the property owners that they may proceed with projects consistent with existing policies, rules, and regulations. More specifically, the Development Agreement is consistent and has been approved consistent with provisions of California Government Code section 65867 and Municipal Code chapter 15.45; and WHEREAS, the Zoning Code does not permit the utilization of tandem parking for commercial uses unless a modification permit is approved for the deviation in access of parking spaces. Also, pursuant to Section 20.65.070.A (Exceptions to Height Limits) of the Zoning Code, architectural features such as, but not limited to, cupolas, weathervanes, open protective railings for stairways, and other roof -top features of an open nature may be permitted in excess of the height limits subject to the approval of a modification permit. Section 20.93.030 of the Zoning Code requires the Planning Commission to make certain mandatory findings in order to approve a modification permit. Such findings and facts to support such findings are as follows: 1. Finding: The granting of the application is necessary due to practical difficulties associated with the property and that the strict application of the Zoning Code results in physical hardships that are inconsistent with the purpose and intent of the Zoning Code. Facts in Support of Finding: a. Strict application of the parking requirements would only require a total of 396 spaces, which could be accommodated on -site without the need for tandem parking; however, as illustrated by the peak parking demand analysis prepared for this project, the proposed 912 parking spaces is consistent with the project's total parking needs. This number of parking spaces cannot be accommodated on -site without the extensive use of tandem parking, unless the construction of a much larger parking structure is proposed. The applicant opted to construct a smaller, less visually intrusive parking structure and expand the use of tandem parking throughout the site. This increased parking meets the intent of the Code Planning Commission Resolution No. Page 6 of 31 by ensuring sufficient parking is being provided for the expanded uses, while the proposed valet operation will insure efficient and safe parking management for the hotel and banquet guests b. General Plan Land Use Element Policy LU 5.2.1 (Architecture and Site Design) requires that new development within existing commercial districts centers and corridors complement existing uses and exhibit high quality architectural and site design in consideration of a number of design principles. One principle in particular requires modulation of building masses, elevations, and rooflines to promote visual interest. Use Permit No. 3161 permitted a cupola over the main hotel entry measuring a total height of 52 feet 9 inches, which was used to establish an identifying feature for the hotel visible from Jamboree Road. This was similar to the ballroom cupola proposed with this project and intended to serve a similar function. The proposed architectural cupola and tower feature is intended to complement the existing hotel and cupola, create visual interest, and establish a separate identifiable feature for the ballroom building. Strict application of the height limits would eliminate the ability to provide this enhanced architectural treatment of the ballroom structure. 2. Finding: The requested modification will be compatible with the existing development in the neighborhood. Facts in Support of Finding: The following facts support compatibility of the proposed project with the existing neighborhood: a. The existing hotel and banquet facilities currently operate primarily with valet service utilizing tandem parking (previously approved by Use Permit No. 3161). Proposed operations will not change significantly from current operations, with the exception of the increased utilization of tandem parking spaces. Continued valet parking service will ensure guests arriving for large banquet events can be parked more efficiently and safely than can be achieved though self - parking. Several self- parking spaces (non- tandem) will remain available for guests seeking short-term parking for use of the spa, restaurants, shops, or meeting facilities without having to utilize valet service. b. To minimize the visual impact of the parking areas as viewed from the adjacent right -of -ways and properties, the parking areas will remain extensively screened from view with the use of proposed and existing groundcover, hedges, and trees. c. The ballroom's proposed cupola and tower feature is 57 feet 6 inches in height with an additional 5- foot -high finial on top. This is approximately 10 feet higher than the height of the existing cupola located at the hotel entrance. Within the context of a 25 -acre site, the cupola and tower feature is a rather minor Planning Commission Resolution No. Page 7 of 31 projection and is consistent with the height of the existing cupola over the hotel entrance (exclusive of the finial). 3. Finding: The granting of such an application will not adversely affect the health or safety of persons residing or working in the neighborhood of the property and will not be detrimental to the general welfare or injurious to property or improvements in the neighborhood. Facts in Support of Finding: a. The existing hotel and banquet facilities were previously approved and currently operate primarily with valet service utilizing tandem parking. To date, the utilization of a tandem parking with valet service has not proven detrimental to persons residing or working in the neighborhood. It should also be noted that several other large hotels in the City, such as the Island Hotel and Fairmont Hotel, operate exclusively with valet service utilizing tandem parking and have also not proven detrimental. b. The use of valet parking will provide guests with direct access to the hotel uses, eliminates the need for guests to park a significant distance from the hotel entry, and enhances safety for guests by eliminating the need to walk through parking lot areas, separating them from vehicles circulating the parking lots, particularly during large banquet events where guests tend to arrive simultaneously. c. To ensure that the valet parking services needed to effectively utilize the large number of tandem spaces do not result in a significant impact, particularly during large wedding, banquet, conference, and special events, preparation of, and compliance with, a valet parking management plan has been included as a mitigation measure d. The proposed cupola and tower feature will be visible from Jamboree Road and Back Bay Drive, as well as the adjacent Sea Island residential community and the Bayview Landing senior apartment complex; however, above the maximum height limit, the edges of the tower are tapered, and arched openings (5.5 feet wide x 8 feet high) exist on each of its four sides, visually reducing the mass of the tower feature and allowing it to remain open in nature. The cupola and tower feature will not block any private or public views, but will project into the panoramic views of the site, similar to the existing cupola over the main hotel structure which has not been detrimental to the visual quality of the area. e. A condition of approval has been included to limit the illumination of the cupola to soft accent lighting at night so as not to become a nuisance to the adjacent residents. Planning Commission Resolution No. Page 8 of 31 WHEREAS, the is located in the 26/35 -foot height limitation zone that permits buildings and structures to exceed the 26 -foot height limit up to a maximum of 35 feet through the approval of a use permit. Ridges of pitched roofs are permitted to exceed the height limit by 5 additional feet. The proposed project exceeds the 26 -foot base height limit. The proposed roof midpoints of the timeshare buildings are at 35 feet and the ridges are at 40 feet, as measured from the finished pad elevation. The proposed roof midpoints of the ballroom building is 31 feet 6 inches and the ridge is 36 feet 6 inches (exclusing cupola), as measured from the finished pad elevation.. Section 20.65.055 of the Zoning Code requires the Planning Commission to make certain mandatory findings in order to approve a use permit to exceed the base height limit. Such findings and facts to support such findings are as follows: 1. Finding: The increased building height would result in more public visual open space and views than is required by the basic height limit in any zone. Particular attention shall be given to the location of the structure on the lot, the percentage of ground cover, and the treatment of all setback and open areas. Facts in Support of Finding: a. The proposed timeshare buildings are to be located on a portion of the site with the highest grade elevations and most visible from the Newport North View Park to the north. Currently, development is not visible from this location. Maintaining the 26 -foot height limit would not allow the design of structures greater than two- levels in height, resulting in the need to create much larger building pads in order to develop the remaining entitled rooms. This required increase in horizontal dimensions of these structures would reduce the amount of open space and landscaping that can be provided on the site. Instead, the proposed project clusters the taller, three -level buildings throughout the site to provide increased public visual open space, not only by allowing a significant amount of open space to remain around the timeshare structures as viewed from the Newporter North View Park, but also by allowing approximately 40.4 percent of the site to remain as open space and visually enhanced with landscaping. b. The proposed ballroom consists of a single level; however, increasing the height limitation for the ballroom accommodates ceiling heights approximate to the size of the 800 -seat capacity ballroom. An alternative to developing one large ballroom, which can be divided up into smaller ballrooms and meeting rooms, would be to simply construct three or four smaller ballroom structures that can be designed with lesser ceiling heights consistent with the base 26- foot height limit. It is important to note, however, that the consolidation of smaller ballroom /meeting spaces into one grand ballroom structure, results in the consolidation of the support uses, such as kitchens, storage rooms, restrooms, pre- function areas, trash areas, etc. Consolidation reduces the Planning Commission Resolution No. _ Page 9 of 31 amount of floor area and lot coverage that would otherwise be dedicated to these various support uses. The development of one large ballroom also allows for the retention of increased setbacks from Jamboree Road (approx. 379 feet) and Back Bay Drive (approx. 94 feet), whereas, smaller detached ballrooms would likely have reduced setback distances. 2. Finding: The increased building height would result in a more desirable architectural treatment of the building and a stronger and more appealing visual character of the area than is required by the basic height limit in any zone. Facts in Support of Finding: Maintaining the 26 -foot height limit would result in increased lot coverage. Clustering the proposed buildings throughout the site and around the existing buildings, which are approximately 9 feet lower in height, would create variation in roof heights. This would enhance the visual character of the area. The additional height would also allow significant use of sloping roof planes, which would add visual interest. The alternative would be to utilize flatter roofs and low sloping roofs to achieve higher ceilings, similar to the existing hotel buildings. 3. Finding: The increased building height would not result in undesirable or abrupt scale relationships being created between the structure and existing developments or public spaces. Particular attention shall be given to the total bulk of the structure including both horizontal and vertical dimensions. Facts in Support of Finding: The proposed project, which consists of one, two, and three -story structures, is consistent with the development of the existing hotel structures. Due to the distance between the project site and adjacent neighborhoods, and the significant amount of mature landscaping on the site, impacts to surrounding neighborhoods are negligible and property owners will retain most of their current views. The proposed heights of the buildings are only approximately 9 feet higher than the existing buildings on -site, and are comparable in height to the adjacent Bayview Landing Senior Apartments; therefore, the proposed building heights will not result in an abrupt scale relationship with the existing developments in the area. 4. Finding: The structure shall have no more floor area than could have been achieved without the use permit. Facts in Support of Finding: The proposed structures will have no more floor area than could have been achieved without requesting the increased height. The structures could have been designed to comply with the height limit; however to achieve the same room count, the buildings would be enlarged horizontally increasing horizontal bulk and reducing open space. Planning Commission Resolution No. Page 10 of 31 WHEREAS, the applicant is requesting the approval of a tentative parcel map to reconfigure two existing lots, allowing the timeshares to remain on one parcel and the hotel on the other, and to establish finished grades for the purposes of measuring height. Pursuant to Section 19.12.070 of the City Subdivision Code, certain findings and facts in support of such findings shall be made for approval of a tentative tract map. Such findings and facts to support such findings are as follows: 1. Finding: That the proposed map and the design or improvements of the subdivision are consistent with General Plan and any applicable specific plan, and with the applicable provisions of the Subdivision Map Act and the City Subdivision Code. Facts in Support of Finding: a. The project is consistent with the General Plan. The Public Works Department has reviewed the proposed tentative map and believes that it is consistent with the Newport Beach Subdivision Code (Title 19) and applicable requirements of the Subdivision Map Act. b. The proposed finished grades, as shown on the proposed site grading plan and site section (Sheets C -2 and A -3 of Project Plans), are not unreasonable given the variable topography of the site. A majority of the natural grade elevations will actually be lowered, particularly the highest portions of the site where the proposed timeshare buildings are proposed. Overall, 24,000 cubic yards of earth are proposed to be exported (40,000 c.y of cut — 16,000 c.y. of fill). The proposed finished grade beneath the ballroom is approximately 7 feet higher than the underlying existing grade because proposed storm drain improvements will eliminate the need for the existing drainage swale. The ballroom's finished floor was set at an elevation convenient for handicapped accessibility and for management of storm water runoff. c. Conditions of approval have been included to ensure compliance with Title 19. 2. Finding: That the site is physically suitable for the type and density of development. Facts in Support of Finding: a. The proposed project is consistent with the maximum General Plan development limitation established for the site and significantly below the applicable maximum floor area limit established by the CV -B coastal land use designation. Planning Commission Resolution No. Page 11 of 31 b. The site is currently utilized as a resort-style hotel complex. The hotel expansion and addition of the 88 timeshare units will not change the principal use of the site. c. The project is not on a site that is included on a list of hazardous materials sites. d. No releases of hazardous substances that would require investigation and /or remediation have been identified at the site. e. As designed, the proposed project would not result in significant biological resource impacts and would protect existing resources through the use of native vegetation. f. A geotechnical feasibility study was prepared by Kleinfelder, which concludes that the site can be developed as planned from a geotechnical perspective. Although the project requires excavation for subterranean parking, the results of the study conclude that excavation required for the timeshare structures would not encounter any groundwater. The project is located within a Special Fire Protection Area as defined by the City's Fire Department. A Fire Protection Plan prepared by Dudek, and preliminarily approved by the Fire Department, concludes that through code and mitigation requirements, the buildings can be designed to be defensible from wildfire and, in turn, do not represent a significant threat of ignition source from the adjacent native habitat. Finding: 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: An Environmental Impact Report has been prepared and concludes that the proposed development will not result in a significant environmental impact with respect to fish, wildlife, or their habitat. The project has been designed so that grading and required fuel modification activities would completely avoid disturbance of all off -site delineated coastal sage scrub vegetation and compliance with mitigation measures will ensure impacts to wildlife within the adjacent environmentally sensitive habitat area are minimized. Planning Commission Resolution No. Page 12 of 31 4. Finding: 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:. a. The project consists of 479 hotel/timeshare units and ancillary eating, drinking, banquet, and spa facilities as permitted by the Zoning Code and the General Plan. b. No evidence is known to exist that would indicate that the proposed project will generate any serious public health problems. c. All mitigation measures will be implemented as outlined in the Draft EIR to ensure the protection of the public health. 5. Finding: 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: a. No public easements for access through the property currently exist or have been retained for use by the public at large. b. Several existing public easements exist on -site, including utility, sewer, water, drainage, and traffic signal maintenance easements. Project implementation will require modification of the sewer, water, and storm drain easements to avoid constructing permanent improvements over said easements. 6. Finding: 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: The site is not subject to a Williamson Act contract; therefore, this finding is not applicable. Planning Commission Resolution No. _ Page 13 of 31 7. Finding: 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: The subject property is not located within the boundaries of a specific plan; therefore, this finding is not applicable. 8. Finding: 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: Title 24 of the California Building Code requires new construction to meet minimum heating and cooling efficiency standards depending on location and climate. The Newport Beach Building Department enforces Title 24 compliance through the plan check and field inspection processes 9. Finding: 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: The site is designated for Visitor Serving Commercial land uses by the General Plan and Coastal Land Use Plan. Residential development is not proposed or permitted on the site; therefore, this finding is not applicable 10. Finding: 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: a. Waste discharge into the existing sewer system will be consistent with commercial use of the property which does not violate Regional Water Quality Control Board (RWQCB) requirements. b. The RWQCB has not provided any comments related to the proposed Draft EIR during the 45 -day review period. Planning Commission Resolution No. Page 14 of 31 11. Finding: 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: The project has been designed and conditioned for consistency with the City's Local Coastal Program Land Use Plan. WHEREAS, a use permit to allow the proposed expansion of the existing hotel use has been prepared and approved in accordance with Section 20.91.035 of the Newport Beach Municipal Code based on the following findings and facts in support of such findings: 1. Finding: That the proposed location of the use is in accord with the objectives of this code and the purposes of the district in which the site is located of the use is in accord with the objectives of this code and the purposes. Facts in Support of Finding: The subject property is located within the Retail and Service Commercial (RSC) Zoning District. Hotels and timeshares are considered visitor accommodations that are permitted land uses with the approval of a use permit. The proposed expansion of the existing hotel uses and addition of the 88 timeshare units is consistent with the RSC District. With the exception of the use permit request for increased height, and modification request for the commercial tandem parking and increased height of the architectural tower element, all required development regulations of the RSC zoning regulations have been met. 2. Finding: That the proposed location of the use permit and the proposed conditions under which it would be operated or maintained will be consistent with the General Plan and the purpose of the district in which the site is located; will not be detrimental to the public health, safety, peace, morals, comfort, or welfare of persons residing or working in or adjacent to the neighborhood of such use; and will not be detrimental to the properties or improvements in the vicinity or to the general welfare of the city. Facts in Support of Finding: The project has been conditioned to regulate the design and operation of the use to minimize impacts to adjacent uses and to guests of the hotel and timeshare development. Specifically, the project will not be detrimental to the public for the following reasons: a. All potential environmental impacts have been analyzed in the Initial Study and Draft EIR and were found not to be significant with the incorporation of specific mitigation measures, with the exception of temporary construction noise impacts to nearby noise - sensitive uses. No feasible mitigation measures exist that would reduce these impacts to less than significant levels; however, the benefits of the project outweigh the unavoidable adverse Planning Commission Resolution No. Page 15 of 31 environmental effects and a Statement of Overriding Considerations must be adopted. b. The proposed conditions of approval and mitigation measures for this project will ensure that all conflicts with surrounding land uses are minimized to the greatest extent possible or eliminated. c. The project has been designed to avoid disturbances to the adjacent ESHA. d. Adequate off - street parking and related vehicular circulation are being provided in conjunction with the proposed project. e. A contingency parking plan for additional off -site parking will provide sufficient parking for those special occasions in hotel operation when demand for parking exceeds the number of available on -site parking spaces. f. A traffic analysis has determined that the increased traffic generated as a result of project implementation will not result in significant impacts to intersections or traffic circulation in the City of Newport Beach, and more specifically, within the vicinity of the project site. g. The project has been conditioned so as to control and reduce excess lighting and to avoid off -site light spillage. 3. Finding: That the proposed use will comply with the provisions of this Code, including any specific condition required for the proposed use in the district in which it would be located. Facts in Support of Finding: The Zoning Code requires the approval of a use permit for hotel and timeshare uses. The sales, management, and contingency plans required per Section 20.84.040 adequately address the purpose of each required plan. NOW THEREFORE, THE PLANNING COMMISSION HEREBY RESOLVES AS FOLLOWS: Section 1. Statement of Overridinq Considerations. Pursuant to CEQA Guidelines Section 15093, the Planning Commission has reviewed and hereby recommends adoption of the Statement of Overriding Considerations to adverse environmental impacts, attached also as Exhibit "A" entitled "Statement of Overriding Considerations," which exhibit is incorporated herein by reference. Section 2. Based on the aforementioned findings, the Planning Commission hereby recommends to the City Council approval of Parcel Map No. 2007 -003, Use Permit No. 2005 -046, Modification Permit No. 2007 -095, and Development Agreement Planning Commission Resolution No. _ Page 16 of 31 No. 2005 -002, all subject to the Conditions of Approval in Exhibit "B" attached hereto and made hereof. PASSED, APPROVED AND ADOPTED THIS 6th DAY OF NOVEMBER, 2008. AYES: Eaton Unsworth Hawkins, Peotter and Toerge NOES. McDaniel and Hillgren ABSENT: None BY: Scott Peotter, Chairma BY: �<J Barry aton cretary Planning Commission Resolution No. _ Page 17 of 31 Exhibit "B" CEQA STATEMENT OF OVERRIDING CONSIDERATIONS REGARDING THE FINAL ENVIRONMENTAL IMPACT REPORT FOR THE HYATT REGENCY NEWPORT BEACH EXPANSION STATE CLEARINGHOUSE NO. 2006121052 BACKGROUND CEQA requires decision makers to balance the benefits of the proposed project against its unavoidable environmental risks when determining whether to approve the project. If the benefits of the project outweigh the unavoidable adverse effects, those effects may be considered "acceptable" (State CEQA Guidelines Section 15093[a]). CEQA requires the agency to support, in writing, the specific reasons for considering a project acceptable when significant impacts are infeasible to mitigate. Such reasons must be based on substantial evidence in the Final EIR or elsewhere in the administrative record (State CEQA Guidelines Section 15093 [b]). The agency's statement is referred to as a "Statement of Overriding Considerations." The following sections provide a description of the each of the project's significant and unavoidable adverse impacts and the justification for adopting a statement of overriding considerations. A. SIGNIFICANT AND UNAVOIDABLE ADVERSE IMPACTS The following adverse impacts of the project are considered significant and unavoidable based on Draft EIR and the findings discussed in Sections 2.0 and 3.0 of this document. The following effects of the project have been determined to be significant, adverse and unavoidable after implementation of feasible mitigation measures. Noise- Due to the length of construction activities (approximately 23 months) and level of noise from the combination of construction activities (ranging from 58 to 88 dBA), project - related construction noise at the nearby residential and recreational receivers would be significant. B. CONSIDERATIONS IN SUPPORT OF THE STATEMENT OF OVERRIDING CONSIDERATIONS After balancing the specific economic, legal, social, technological, and other benefits of the proposed project, the City of Newport Beach has determined that the unavoidable adverse environmental impact identified above may be considered "acceptable" due to Planning Commission Resolution No. Page 18 of 31 the following specific considerations, which outweigh the unavoidable, adverse environmental impact of the proposed project. Economic Development and Additional Meeting Space The proposed project would enhance the City's fiscal health through the expansion of the existing hotel uses, including a new 800 -seat ballroom facility, 88 new timeshare units, and other ancillary amenities such as a new spa, fitness and swim facility, and a timeshare clubhouse. The proposed uses would attract additional visitors to the City by expanding the destination services and uses currently provided on -site and in the coastal areas of Newport. For example, the expansion of the hotel's destination services and uses would provide a great means for visitors to take advantage of the hotel's adjacency (south and southwest of the project site across Back Bay Drive) to the Upper Newport Bay and Newport Dunes. A preliminary study of the potential market demand for a conference or convention center was conducted, which evolved into a revenue enhancement study for Transient Occupancy Tax for the City. PKF Consulting conducted the Revenue Enhancement Study on behalf of the City of Newport Beach and the Newport Beach Conference and Visitors Bureau. The study's primary findings included the potential opportunity for expanded ballroom facilities or conference centers in existing hotels to assist in meeting conference need for the City of Newport Beach. The study provided an example of Public- Private partnerships that could allow for the development of a large ballroom or conference center at one of the existing hotels which would allow the City of Newport Beach to increase its level of rooms demand by appealing to group demand segments not currently able to be accommodated within the community. The proposed project, more specifically the development of a new, larger ballroom facility, will assist in meeting the conference need for the City of Newport Beach." Storm Drainage Improvements The proposed project would introduce new storm drainage improvements in the project area. These improvements would include a new storm drain on the north side of Jamboree Road, which would connect to a new storm drain that would traverse the southwestern portion of the site beneath the parking lot adjacent to Back Bay Drive and would discharge to an existing storm drain at the northwestern corner of the site at Back Bay Drive. A system of grated inlets and curb opening catch basins at sump locations would capture and direct flows to the new drains. Flows from the north and northeastern portion of the site would be collected in a separate storm drain system that would outlet to an existing concrete ditch at the northeast corner of the site. A new storm drain would also be provided along the northern portion of Back Bay Drive, adjacent to Timeshare Building TS -7, and would discharge into an existing public storm drain system. The project will provide upgraded drainage facilities and water quality best management practices (BMPs) that would in fact Planning Commission Resolution No. Page 19 of 31 improve existing conditions. Additionally, drainage flows from the project site would be decreased under the proposed project conditions, as compared to the existing conditions. This would be accomplished through a combination of site - design and treatment - control BMPs, such as various media filters, bioswales, and filtration trenches. Planning Commission Resolution No. Page 20 of 31 Exhibit "B" Conditions of Approval Parcel Map No. 2007 -003, Use Permit No. 2005 -046, Modification Permit No. 2007 -095, and Development Agreement No. 2005 -002 (Project - speck conditions noted in italics) Planning Department 1. The following conditions herein replace and supersede all conditions of previous discretionary approvals for the 1107 Jamboree Road project site, except for Use Permit No. 1697 and Use Permit No. 2001 -031. 2. The project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval. 3. The development shall be in substantial conformance with the approved project plans stamped with the date of this approval. (Except as modified by applicable conditions of approval.) 4. Excepting the Summer Jazz Series events conducted pursuant to Use Permit No. 2001 -031, a Special Events Permit is required for any event or promotional activity outside the normal operational characteristics of the approved use, as conditioned, or for those occasions when the existing or proposed banquet/meeting rooms are used by large outside groups which will generate a level of activity that will require additional off -site parking spaces, that would attract large crowds, include any form of on -site media broadcast, or any other activities as specified in the Newport Beach Municipal Code to require such permits. 5. Excepting the Summer Jazz Series events conducted pursuant to Use Permit No. 2001 -031, any event or activity staged by an outside promoter or entity, where the applicant, operator, owner or his employees or representatives share in any profits, or pay any percentage or commission to a promoter or any other person based upon money collected as a door charge, cover charge or any other form of admission charge, including minimum drink orders or sale of drinks is prohibited. 6. The project shall maintain a minimum of 912 parking spaces. 7. That valet parking service shall be provided 24 hours a day. (1985 Condition) 8. A minimum of 25 spaces shall be maintained in self - parking areas in the upper lot to provide self - parking for hotel guests and patrons of retail, restaurant and service uses. (1985 Condition) Planning Commission Resolution No. Page 21 of 31 9. The following disclosure statement of the City of Newport Beach's policy regarding the John Wayne Airport should be included in all leases or subleases for space in the project and shall be included in any Covenants, Conditions and Restrictions which may be recorded against the property. (1985 Condition) Disclosure Statement a) The John Wayne Airport may not be able to provide adequate air service for business establishments which rely on such services; b) When an alternate air facility is available, a complete phase out of jet service may occur at the John Wayne Airport; c) The City of Newport Beach will continue to oppose additional commercial air service expansions at the John Wayne Airport,, d) Lessee, his heirs, successors and assigns will not actively oppose any action taken by the City of Newport Beach to phase out or limit jet air service at the John Wayne Airport. 10. Only native, fire- resistant plant species shall be planted within the 50 -foot buffer area between the identified environmentally sensitive habitat area (ESHA) and Timeshare Building Nos. TS -1 and TS -2, as illustrated on the approved plans. 11. All employees shall park their vehicles on -site except during special events when off - site parking arrangements are implemented and authorized, in which case employees shall park either on -site or at such authorized off -site facilities. 12.All mechanical equipment shall be screened from view of adjacent properties and adjacent public streets, and shall be sound attenuated in accordance with Chapter 10.26 of the Newport Beach Municipal Code, Community Noise Control. 13. Prior to the issuance of building permits, approval from the California Coastal Commission is required. 14. Prior to the recordation of the parcel map, approval from the California Coastal Commission is required. 15. Prior to the issuance of a permit or within 30 days of receiving a final notification of costs, the applicant shall be responsible for the payment of all administrative costs identified by the Planning Department. 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 Department, General Services Department, and Fire Department. Except as otherwise may be required for fuel modification and ESA buffer zones, all planting areas shall be provided with a permanent underground automatic sprinkler irrigation system of a design suitable for the type Planning Commission Resolution No. _ Page 22 of 31 and arrangement of the plant materials selected. The irrigation system shall be adjustable based upon either a signal from a satellite or an on -site moisture- sensor. Planting areas adjacent to vehicular activity shall be protected by a continuous concrete curb or similar permanent barrier. Landscaping shall be located so as not to impede vehicular sight distance to the satisfaction of the Traffic Engineer. 17.AII landscape materials and landscaped areas 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. 18.Water leaving the project site due to over - irrigation of landscape shall be prohibited. If an incident such as this is reported, a representative from the Code and Water Quality Enforcement Division of the City Manager's Office shall visit the location, investigate, inform and notice the responsible party, and, as appropriate, cite the responsible party and /or shut off the irrigation water. 19.Watering shall be done during the early morning or evening hours (between 4:00 P.M. and 9:00 A.M.) to minimize evaporation. 20.AII leaks shall be investigated by a representative from the Code and Water Quality Enforcement Division of the City Manager's Office and the applicant shall complete all required repairs. 21.Water should not be used to clean paved surfaces such as sidewalks, driveways, parking areas, etc. except to alleviate immediate safety or sanitation hazards. 22.Reclaimed water shall be used whenever available, assuming it is economically feasible. 23. Prior to the issuance of a Certificate of Occupancy, the applicant shall schedule an inspection by the Code and Water Quality Enforcement Division to confirm that all landscaping was installed in accordance with the approved plan. 24.This Use Permit may be modified or revoked by the City Council or the Planning Commission should they determine that the proposed uses or conditions under which it is being operated or maintained is detrimental to the public health, welfare or materially injurious to property or improvements in the vicinity or if the property is operated or maintained so as to constitute a public nuisance. 25.Any change in operational characteristics, hours of operation, expansion in area, or other modification to the approved plans, shall require an amendment to this Use Permit or the processing of a new Use Permit. Planning Commission Resolution No. Page 23 of 31 26. This approval was based on the particulars of the individual case and does not in and of itself or in combination with other approvals in the vicinity or Citywide constitute a precedent for future approvals or decisions. 27. Use Permit No. 2005 -046 and Modification Permit 2007 -095 shall expire unless exercised within 24 months from the effective date of approval as specified in Section 20.91.050 and Section 20.93.050 of the Newport Beach Municipal Code, unless an extension is otherwise granted. 28. Parcel Map No. 2007 -003 shall expire if the map has not been recorded within 3 years of the effective date of approval, unless an extension is granted by the Planning Director in accordance with the provisions of Section 19.16 of the Newport Beach Municipal Code. 29. Should this business be sold or otherwise come under different ownership, any future owners or assignees shall be notified in writing of the conditions of this approval by the current owner or leasing company. 30. The operator of the facility shall be responsible for the control of noise generated by the subject facility including, but not limited to, noise generated by patrons, food service operations, and mechanical equipment. All noise generated by the proposed use shall comply with the provisions of Chapter 10.26 and other applicable noise control requirements of the Newport Beach Municipal Code 31. No outside paging system shall be utilized in conjunction with this establishment 32. Lighting shall be in compliance with applicable standards of the Zoning Code. Exterior on -site lighting shall be shielded and confined within site boundaries. No direct rays or glare are permitted to shine onto public streets or adjacent sites or create a public nuisance. "Walpak" type fixtures are not permitted. Parking area lighting shall have zero cut -off fixtures, utilize high pressure sodium lamps, and light standards shall not exceed 20 feet in height. 33.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 Planning Director, the illumination creates an unacceptable negative impact on surrounding land uses or environmental resources. The Planning Director may order the dimming of light sources or other remediation upon finding that the site is excessively illuminated. 34. 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 Department. The plan shall show that lighting values would be 1- foot - candle or less at all property lines. Planning Commission Resolution No. Page 24 of 31 35. Any proposed illumination of the new ballroom cupola and tower feature shall consist of soft accent lighting so as not to become a visual disturbance to the views of the adjacent residents, and shall be prohibited between the hours of 10:00 p.m. and 6:00 a.m. 36. Prior to issuance of the certificate of occupancy or final of building permits. the applicant shall schedule an evening inspection by the Code and Water Quality Enforcement Division to confirm control of light and glare specified in condition of approval Nos. 32, 33, and 35. 37.AII proposed signs shall be in conformance with the provision of Chapter 20.67 of the Newport Beach Municipal Code and shall be approved by the City Traffic Engineer if located adjacent to the vehicular ingress and egress. 38.AII signs shall conform to the provisions of Chapter 20.67 of the Municipal Code. No temporary "sandwich" signs or similar temporary signs shall be permitted, either on -site or off -site, with the exception of temporaray parking signs on the site during events at the hotel. 39.Temporary signs shall be prohibited in the public right -of -way unless otherwise approved by the Public Works Department in conjunction with the issuance of an encroachment permit or encroachment agreement. 40.The final location of the signs shall be reviewed by the City Traffic Engineer and shall conform to City Standard 110 -L to ensure that adequate sight distance is provided. 41 -Trash receptacles for patrons shall be conveniently located both inside and outside of the establishment, however, not located on or within any public property or right - of -way. 42.The exterior of the business shall be maintained free of litter and graffiti at all times. The owner or operator shall provide for daily removal of trash, litter debris and graffiti from the premises and on all abutting sidewalks within 20 feet of the premises. 43-The applicant shall ensure that the trash dumpsters and /or receptacles are maintained to control odors. This may include the provision of either fully self - contained dumpsters or periodic steam cleaning of the dumpsters, if deemed necessary by the Planning Department. Cleaning and maintenance of trash dumpsters shall be done in compliance with the provisions of Title 14, including all future amendments (including Water Quality related requirements). 44. Prior to the issuance of building permits. the trash enclosure design shall be approved by the Planning Department. The trash enclosure shall be enclosed by three walls, a self closing, self latching gate and have a have a decorative, solid roof for aesthetic Planning Commission Resolution No. _ Page 25 of 31 and screening purposes. The design of the enclosure shall be integrated with the design of the other on -site buildings and structures. 45. Deliveries of food products shall be prohibited between the hours of 10:00 p.m. and 7:00 a.m., daily. All other deliveries and refuse collection for the facility shall be prohibited between the hours of 10:00 p.m. and 8:00 a.m., daily, unless otherwise approved by the Planning Director, and may require an amendment to this use permit. 46.A covered wash -out area for refuse containers and kitchen equipment, with minimum useable area dimensions of 36- inches wide, 36- inches deep and 72- inches high, shall be provided, and the area shall drain directly into the sewer system, unless otherwise approved by the Building Director and Public Works Director in conjunction with the approval of an alternate drainage plan. 47.The construction and equipment staging area shall be located in the least visually prominent area on the site and shall be properly maintained and /or screened to minimize potential unsightly conditions. 48.A six - foot -high screen and security fence shall be placed around the construction site during construction. 49. Construction equipment and materials shall be properly stored on the site when not in use. 50.The applicant shall comply with SCAQMD Rule 403 requirements as follows: Land Clearing /Earth - Moving a. Exposed pits (i.e., gravel, soil, dirt) with 5 percent or greater silt content shall be watered twice daily, enclosed, covered, or treated with non -toxic soil stabilizers according to manufacturers' specifications. b. All other active sites shall be watered twice daily. C. All grading activities shall cease during second stage smog alerts and periods of high winds (i.e., greater than 25 mph) if soil is being transported to off -site locations and cannot be controlled by watering. d. All trucks hauling dirt, sand, soil, or other loose materials off -site shall be covered or wetted or shall maintain at least two feet of freeboard (i.e., minimum vertical distance between the top of the load and the top of the trailer). Planning Commission Resolution No. Page 26 of 31 e. Portions of the construction site to remain inactive longer than a period of three months shall be seeded and watered until grass cover is grown or otherwise stabilized in a manner acceptable to the City. f. All vehicles on the construction site shall travel at speeds less than 15 mph. g. All diesel - powered vehicles and equipment shall be properly operated and maintained. h. All diesel - powered vehicles and gasoline - powered equipment shall be turned off when not in use for more than 5 minutes. j. The construction contractor shall utilize electric or natural gas - powered equipment instead of gasoline or diesel - powered engines, where feasible. Paved Roads k. All construction roads internal to the construction site that have a traffic volume of more than 50 daily trips by construction equipment, or 150 total daily trips for all vehicles, shall be surfaced with base material or decomposed granite, or shall be paved. I. Streets shall be swept hourly if visible soil material has been carried onto adjacent public paved roads. M. Construction equipment shall be visually inspected prior to leaving the site and loose dirt shall be washed off with wheel washers as necessary. Unpaved Staging Areas or Roads n. Water or non -toxic soil stabilizers shall be applied, according to manufacturers' specifications, as needed to reduce off -site transport of fugitive dust from all unpaved staging areas and unpaved road surfaces. 51.Construction activities which produce loud noise that disturb, or could disturb a person of normal sensitivity who works or resides in the vicinity, shall be limited to the weekdays between the hours of 7:00 a.m. and 6:30 p.m., and Saturdays between the hours of 8:00 a.m. and 6:00 p.m. No such noise occurrences shall occur at anytime on Sundays or federal holidays. 52.Noise- generating equipment operated at the project site shall be equipped with effective noise control devices (i.e., mufflers, lagging, and /or motor enclosures). All equipment shall be properly maintained to assure that no additional noise, due to worn or improperly maintained parts, would be generated. Planning Commission Resolution No. Page 27 of 31 53. To the fullest extent permitted by law, applicant shall indemnify, defend and hold harmless City, its City Council, its boards and commissions, officials, officers, employees, and agents from and against any and all claims, demands, obligations, damages, 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 Hyatt Regency Newport Beach hotel expansion and timeshare project including, but not limited to, the approval of the Parcel Map No. 2007 -003, Use Permit No. 2005- 046, Modification Permit No. 2007 -095, and Development Agreement No. 2005 -002, and /or the City's related Califomia Environmental Quality Act determinations, the certification of the Environmental Impact Report, the adoption of a Mitigation Monitoring Program, and /or statement of overriding considerations for Hyatt Regency Newport Beach hotel expansion and timeshare project. 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 enforoing 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. Building Department 54. The applicant is required to obtain all applicable permits from the City Building and Fire Departments. 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. 55. Strict adherence to maximum occupancy limits is required. 56. 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. 57. 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 Department and Code and Water Quality Enforcement Division. The Planning Commission Resolution No. _ Page 28 of 31 WQMP shall provide appropriate Best Management Practices (BMPs) to ensure that no violations of water quality standards or waste discharge requirements occur. 58.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. Fire Department 59. The existing 14 -foot fire road between the Main Building and the Terrace Building shall be maintained, unless otherwise approved by the Fire Department. 60. Fire sprinklers shall be provided for all new buildings. 61. Fire hydrants shall be provided every 300 feet along the main access driveway through the timeshare development. 62. The porte cochere on the new ballroom shall have a minimum vehicle clearance of 13 feet 6 inches high. 63. The proposed fire access road shall not exceed a grade of 10 percent. 64.AII elevators shall be gurney accommodating in accordance with Chapter 30 of the California Building Code. 65.A11 gates to the property shall be automatic opening and provided with knox key switch and approved strobe. 66. Fire alarm systems in all buildings shall be tied into the main panel in the existing Catalina building. 67. Smoke detectors shall be provided in all sleeping areas and shall be powered through the fire alarm panel. 68. Class 1 standpipes shall be provided in all stairwells of the timeshare buildings. 69.A 20 -foot minimum fire access road shall be provided between the Lido and Catalina buildings. Planning Commission Resolution No. Page 29 of 31 Public Works Department 70.A parcel Map shall be recorded. The Map shall be prepared on the California coordinate system (NAD83). Prior to recordation of the Map, the surveyor /engineer preparing the Map shall submit to the County Surveyor and the City of Newport Beach a digital - graphic file of said map in a manner described in Section 7 -9 -330 and 7 -9 -337 of the Orange County Subdivision Code and Orange County Subdivision Manual, Subarticle 18. The Map to be submitted to the City of Newport Beach shall comply with the City's CADD Standards. Scanned images will not be accepted. 71. Prior to recordation of the parcel 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 s 7 -9 -330 and 7 -9 -337 of the Orange County Subdivision Code and Orange County Subdivision Manual, Subarticle 18. Monuments (one inch iron pipe with tag) shall be set On Each Lot Corner unless otherwise approved by the Subdivision Engineer. Monuments shall be protected in place if installed prior to completion of construction project. 72. The required number of handicapped parking spaces shall be designated within the on -site parking area and shall be used solely for handicapped self parking and shall be identified in a manner acceptable to the City Traffic Engineer. Said parking spaces shall be accessible to the handicapped at all times. One handicapped sign on a post shall be required for each handicapped space. (1988 Condition) 73. Valet and parking management operations shall be reviewed and approved by the City of Newport Beach Planning and Public Works Departments. (1985 Condition) 74.The project shall comply with the City's sight distance standard for driveway /public street intersections and internal roadways. 75. Curb cuts no longer in use shall be abandoned and plugged per City Standards. 76. Cul -de -sacs shall be designed per City Standard STD -102 -L and STD - 103 -L. 77. Ramp slopes shall comply with City Standards. 78. Final parking and circulation plans shall be subject to further review by the City Traffic Engineer. 79. Prior to the issuance of a building permit and/or recordation of the parcel map, the applicant shall resolve all easement issues to the satisfaction of the Public Works Department. No permanent ground improvements such as buildings, walls, etc. shall be built over any active easements or underground utilities. Planning Commission Resolution No. Page 30 of 31 80. The existing Street, Storm Drain, and Traffic Signal Easements along the Jamboree Road and Back Bay Drive frontages shall be maintained, unless otherwise approved by the Public Works Department. 81. If it is desired to record the Map or obtain a building permit prior to completion of the public improvements, the applicant will provide the City through the Public Works Department with either a refundable deposit or Material/Labor /Performance bonds to guarantee satisfactory completion of the required public improvement. 82.All new water, sewer, and storm drain facilities constructed on -site to serve the development shall be privately owned and maintained. 83.A water demand, a storm drain system capacity, a sanitary sewer system capacity study shall be submitted to the Public Works Department along with the first building plan check submittal. The recommendations of these studies shall be incorporated as part of the submitted plans. 84. Double backflow preventers shall be installed to serve the site. 85. The cost of reconstructing existing City facilities such as water, storm drain, sewer, traffic signals, etc. to resolve interference issues shall be borne by the site owner. 86. Street, drainage, and utility improvements to be owned and maintained by the City shall be submitted on the City standard improvement plan formats. All of the plan sheets shall be wet sealed, dated, and signed by the Califomia registered professionals responsible for the designs shown on said plans. 87. All on -site runoff shall be intercepted by on -site runoff retention devices. 88.All on -site runoff not captured by on -site runoff retention devices shall be treated by industrial -grade clarifier(s) prior to discharge through curb drains onto Back Bay Drive. Direct connection to existing underground storm drain pipes is not allowed. 89.ADA compliant pedestrian paths shall be provided throughout the development to serve each building. 90.All existing and new curb returns along Jamboree Road and Back Bay Drive frontages shall be constructed or reconstructed with ADA compliant curb access ramps. 91. The driveway decorative pavers proposed within the public right -of -way will be subject to additional conditions during the plan check process. The execution of an encroachment agreement(s) will be required if the installation of said decorative pavers is approved by the City. Planning Commission Resolution No. Page 31 of 31 92.AII new landscaping within the public right -of -way and adjacent to driveway approaches shall be approved by the General Services Department and the Public Works Department for sight distance conformance. 93. County Sanitation District fees shall be paid prior to issuance of any building permits. 94. Public Works Department improvement plans plan check and inspection fees shall be paid prior to encroachment permit issuance. 95. 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. 96.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. 97.A construction traffic control plan shall be approved by the City prior to the issuance of the encroachment permit. Said plan shall be wet sealed, signed, and dated by a California Registered Traffic Engineer. 98. Staging and /or queuing of construction vehicles shall be allowed within the project site but shall be prohibited within the public right -of -way. 99. Prior to any proposed street closures, the applicant shall submit an application for a temporary street closure permit and an encroachment permit. No street closures shall be permitted until such permits are issued by the Public Works Department. Mitigation Measures 100. The applicant shall comply with all mitigation measures and standard conditions contained within the approved Mitigation Monitoring and Reporting Program of the Final Environmental Impact Report (SCH No. 2006121052) for the project.