HomeMy WebLinkAbout06 - DA 16 - Koll Center Newport Office Site BJuly 24, 2001
Agenda Item No. 6
ORDINANCE NO. 2001-11
AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF NEWPORT BEACH APPROVING A
DEVELOPMENT AGREEMENT FOR KOLL
CENTER NEWPORT OFFICE SITE B
[DEVELOPMENT AGREEMENT NO. 161
WHEREAS, Koll Center Newport Number A ( "Developer "), 1900 Main Street,
Suite 350, Irvine, California, has applied to the City of Newport Beach ( "City') for a
General Plan Amendment (GPA 97 -3(B)) and a Planned Community Amendment for
"Office Site B" of the Koll Center Newport (KCN) Planned Community in order to allow
future additional development on Parcel I of PMB 1 14/22 -24 and Parcels 1, 2, and 7 of
PMB 181/13 -19; and
WHEREAS, the GPA 97 -3(B) would increase the allowable building floor area
of KCN Office Site B by 250,000 gross square feet, to a maximum of 1,310,898 gross
square feet; and
WHEREAS, a Development Agreement was prepared, attached hereto as Exhibit
"DA -I "; and
WHEREAS, the Development Agreement provides for certain rights, obligations,
and assurances on the parts of both the City and the Developer; and
WHEREAS, on August 3 and September 7, 2000 and June 7, 2001, the Planning
Commission held duly- noticed public hearings, and, at the conclusion of the hearing and
after considering the evidence and arguments submitted by the City staff, Developer, and
all interested- parties, adopted a resolution recommending that the City Council approve
the Development Agreement; and
WHEREAS, on June 26, 2001, the City Council held a public hearing and
considered the Development Agreement, the recommendation of the Planning
Commission, and the evidence and arguments submitted by the City staff, Developer, and
all interested parties A notice of time, place and purpose of the public hearing was duly
given and testimony was presented to and considered by the City Council at the public
hearing.
THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH DOES HEREBY
ORDAIN AS FOLLOWS:
SECTION 1: ENVIRONMENTAL REVIEW. Pursuant to CEQA and the
CEQA Guidelines, an Environmental Impact Report (EIR) has been prepared for the
project addressed by the Development Agreement. Subsequent to the preparation and
distribution of the Draft EIR for public review and comment, the City of Newport Beach
and the project applicant mutually agreed to enter into a Development Agreement for the
proposed project. The Development Agreement provides additional mitigation for project
impacts in the form of fees for road improvements and other items. Although this
discretionary action was not identified in the project description contained in the Draft
EIR, a review of its implications on the environmental analysis conclusively shows that
its implementation will not result in any additional significant impacts beyond those
addressed in the Draft EIR, result in a substantial increase in the severity of any
significant impacts addressed in the Draft EIR, and/or require the incorporation of
additional mitigation measures. Therefore, the environmental analysis presented in the
Draft EIR adequately evaluated all of the potential impacts of project implementation,
including those related to the approval and implementation of the Development
Agreement. After reviewing the EIR, all comments received during the public review
process, and all responses to those comments, the City Council has certified the EIR as
complete, reflecting the independent judgment of the City of Newport Beach. All records
pertaining to preparation, review, and comment on the EIR are retained in the Planning
Department of the City of Newport Beach.
SECTION 2: DEVELOPMENT AGREEMENT.
a. The Development Agreement is, assuming voter approval of GPA 97 -3(B), consistent
with the objectives, policies, general land uses, and programs of the General Plan of
the City..
b. The City Council hereby approves and adopts the Development Agreement, attached
hereto as Exhibit "DA -1". The Mayor is hereby authorized to execute the Agreement,
and, assuming voter approval of GPA 97 -3(B), the City Clerk shall cause a copy
thereof to be recorded with the Orange County Recorder.
SECTION 3: The Mayor shall sign and the City Clerk shall attest to the passage
of this Ordinance. This Ordinance shall be published once in the official newspaper of
the City, and the same shall not become effective until the City Clerk certifies to the City
Council that the GPA 97 -3(B) has been approved by the electorate pursuant to Section
423 of the City Charter.
This Ordinance was introduced at a regular meeting of the City Council of the City of
Newport Beach held on July 10, 2001 and adopted on July 24, 2001 by the following vote,
to wit:
AYES, COUNCIL MEMBERS
NOES, COUNCIL MEMBERS
ABSENT COUNCIL MEMBERS
MAYOR
ATTEST:
CITY CLERK
Recording Requested By and
When Recorded Return to:
City Clerk
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92660
DEVELOPMENT AGREEMENT
BETWEEN
THE CITY OF NEWPORT BEACH
R► p
KOLL CENTER NEWPORT NUMBER A
Approved July 24, 2001
Ordinance No. 2001 -11
DEVELOPMENT AGREEMENT
This Development Agreement ( "Agreement ") is executed as of
2001, ( "Approval Date ") by and between the CITY OF NEWPORT BEACH ( "CITY "), and
KOLL CENTER NEWPORT NUMBER A ( "OWNER ").
1. RECITALS.
1.1 Property /Ownership Status. OWNER owns all of the real property
( "Property") described on Exhibit "A" and depicted on Exhibit "B," consisting of
approximately five (5) acres.
1.2 Planning Status. The Property comprises a portion of Office Site B"
known as "Professional and Business Office Site B" of the Koll Center Newport
Planned Community, which is currently entitled with approximately one million
(1,000,000) square feet of office development.
1.3 Project OWNER has asked CITY to approve a general plan amendment,
zoning amendment and related permits that would authorize the construction of
approximately two hundred and thirty-five thousand (235,000) square feet of additional
office use on the Property.
1.4 Hearings. The Newport Beach Planning Commission (Planning
Commission) and the Newport Beach City Council (City Council) have conducted all
required public hearings on the Project and certified an Environmental Impact Report for
the Project that is in full compliance with CEQA and the CEQA Guidelines. All of these
hearings were duly noticed in accordance with applicable provisions of State law and
the Newport Beach Municipal Code.
1.5 General Findings. The Planning Commission and City Council have
determined that the Project and all Project Approvals are consistent with all elements of
the Newport Beach General Plan, the Newport Beach Municipal Code, CEQA and the
CEQA Guidelines. The Project and all Project Approvals are also consistent with all
other relevant plans, policies, ordinances, resolutions and regulations of the CITY.
1.6 Affordable Housing. The CITY and OWNER have determined that the
Project does not constitute a residential development subject to the terms and
conditions of the CITY's Housing Element. Accordingly, no present or subsequently
enacted affordable housing requirement or housing in lieu fee shall be required of
OWNER.
1.7 Purpose of Agreement. The purposes of this Agreement are as follows:
F:\userskcatXshared\BumhamkKoll\DA062601.doc
(a) To provide for the orderly completion of development of the
Property consistent with the Project Approvals, Project Conditions
and this Agreement.
(b) To provide the CITY and OWNER with certainty that the Project will
be developed and maintained as contemplated by the Project
Approvals, Project Conditions and the Development Plan.
(c) To provide assurance to OWNER that OWNER may proceed with
the Project, subject to compliance with Project Conditions, in
accordance with the laws, policies, rules, ordinances, resolutions
and regulations of the CITY in effect as of the Approval Date.
(d) To strengthen the public planning process, encourage private
participation in comprehensive planning, reduce the economic cost
of development, mitigate the impacts of development, and provide
public benefits in excess of those normally secured through the
planning process.
1.8 Authorization. This Agreement is authorized by, and is consistent with,
the provisions of §§ 65864 et seq. of the Government Code of the State of California,
and Chapter 15.45 of the Newport Beach Municipal Code.
1.9 Police Power. The City Council has determined that this Agreement:
(a) Is in the best interests of the health, safety and general welfare of
the CITY, its residents and the public;
(b) Was entered into pursuant to, and is a valid exercise of, the CITY's
police power; and
(c) Has been approved in accordance with the provisions of State and
local law that establish procedures for the approval of development
agreements.
1.10 City Ordinance. On , 2001, after giving appropriate notice
and holding all appropriate public hearings, the City Council conducted the first reading
of Ordinance No. authorizing the CITY to enter into this Agreement. The City
Council approved the Adopting Ordinance on , 2001, after giving
appropriate notice and holding all appropriate public hearings. The Adopting Ordinance
shall be considered effective as specified in Section 8.1.
1.11 CEQA Review. The City Council has independently reviewed, approved
and certified the EIR for the Project. In so doing, the City Council determined, among
other things, that the EIR was prepared in full compliance with CEQA and the CEQA
Guidelines. The City Council also adopted all feasible mitigation measures, made
appropriate findings and adopted a statement of overriding considerations with respect
to any significant effect that could not be mitigated to a level of insignificance. The City
Council also adopted a Mitigation Monitoring Program for the Project as required by
CEQA and the CEQA Guidelines.
2. DEFINITIONS.
2.1. "Adopting
Ordinances" refers to:
(a)
Ordinance No. 2001- adopted by the City Council on
2001, approving Zoning Amendment No. 905 and
this Agreement;
(b)
Resolution No. 2001- adopted by the City Council on
2001, approving GPA 97 -3(B);
(c)
Resolution No. 2001- adopted by the City Council
on , 2001, approving Traffic study No. 119 and making
findings pursuant to Chapter 15.40 of the Code;
(d)
Resolution No. 2001- adopted by the City Council
on , 2001 certifying the EIR as fully compliant with CEQA
and the CEQA Guidelines, adopting all feasible mitigation
measures, and containing the statement of overriding
considerations.
2.2. "Agreement" refers to this Development Agreement.
2.3 "Annual Review" refers to the review of OWNER's and CITY's good faith
compliance with this Agreement, as set forth in Section 7.
2.4 "Approval Date" means 2001, the date on which the City
Council approved the Adopting Ordinances.
2.5 "Assign" means all forms of use of the verb "assign" and the nouns
"assignment' and "Assignee" shall include all contexts of hypothecation, sales,
conveyances, transfers, leases, and assignments.
2.6 "CEQA" and the "CEQA Guidelines" refers to the California
Environmental Quality Act and the CEQA Guidelines promulgated by the Secretary of
Resources of the State of California.
2.7 "CITY" refers to the City of Newport Beach, California.
2.8 "City Council" refers to the City Council of the CITY.
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2.9 "Cure Period" refers to the period of time during which a Default may be
cured pursuant to Article 10.
2.10 "Day" or "days" refers to a calendar day, unless expressly stated to be a
business day.
2.11 "Default" refers to any material default, breach, or violation of the
provisions of this Agreement. A "CITY Default" refers to a Default by the CITY, while
an "OWNER Default" refers to a Default by OWNER.
2.12. "Develop" means all forms of use of the verb "develop" and the noun
"Development ", whether or not capitalized, means the improvement of the Property for
the purposes 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 buildings and structures; and the installation of landscaping and parking
facilities and improvements. "Develop" or "Development" also includes the
maintenance, repair, alteration, reconstruction or redevelopment of any building,
structure, improvement, landscaping or facility after the initial construction and
completion so long as consistent with the Project Approvals, the Development Plan and
this Agreement. "Develop" or "Development" also includes the use of the Property in a
manner consistent with the permitted general, primary, and secondary uses as set forth
in the PC Text and the Development Plan.
2.13. "Development Plan" means and constitutes the plan for the development
of the Property, as embodied and stated in the Project Approvals, Project Conditions
and this Agreement.
2.14. "Effective Date" shall be the date this Agreement becomes effective as
specified in Section 8.1.
2.15. "EIR" refers to Environmental Impact Report 158 (State Clearinghouse
No. 99091120) prepared for the Project and certified as fully compliant with CEQA and
the CEQA Guidelines by the CITY Council on the Approval Date.
2.16. "Estoppel Certificate" refers to the document certifying the status of this
Agreement required by Section 7.4.
2.17. "Exhibit" refers to an Exhibit to this Agreement. All Exhibits are
incorporated as a substantive part of this Agreement. The Exhibits to this Agreement
are as follows:
Exhibit : Description:
A Legal Description of the Property
B Map depicting the Property
C Project Approvals comprising the Development Plan
D List of Project Conditions
2.18. "Existing General Regulations" means those General Regulations
approved by the CITY on or before the Approval Date (irrespective of their Effective
Date) and not rescinded or superseded by CITY action taken on or before the Approval
Date.
2.19. "Future General Regulations" means those General Regulations
adopted or approved by the CITY in any way, after the Approval Date.
2.20. "General Plan" refers to the CITY's General Plan in effect on the
Approval Date, plus all amendments to the General Plan adopted by the CITY on or
before the Approval Date as part of the Project Approvals, Project Conditions or the
Development Plan.
2.21. "General Plan Amendment" or "GPA" means General Plan Amendment
97 -3(B) amending the General Plan of the CITY as approved by the City Council on
, 2001 if and when approved by the voters pursuant to Section 423 of the City
Charter.
2.22. "General Regulations "means all laws, ordinances, resolutions, codes,
rules, regulations and official policies of CITY governing the development and permitted
uses of land, including, without limitation, the permitted use of land, the density or
intensity of use, subdivision requirements, the maximum height and size of proposed
buildings, the provisions for reservation or dedication of land for public purposes, and
the design, improvement and construction standards and specifications applicable to
the development of the Property and provisions relating to applicable fees, charges,
assessments and levies. The foregoing includes the Traffic Phasing Ordinance (TPO),
the Fair Share Traffic Contribution Fee Ordinance (Fair Share Ordinance) and water
and sewer connection fee ordinances. General Regulations do not include any CITY
ordinance, resolution, code, rule, regulation or official policy identified in or governing
the following ( "Governmental Exceptions "):
(a) The provisions of Titles 1, 3, 5, 6, 7, 9, 10, 11, 12, 13, 14, 15
(except Chapters 15.38 and 15.40) and of the Newport Beach
Municipal Code;
(b) Property taxes and assessments;
(c) The control and abatement of Nuisances (subject to the provisions
of Section 3.4);
(d) The exercise of the power of eminent domain;
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(e) The provision of, or charges for, water, sewer, refuse, police, fire
and other municipal services that are generally applicable to all
owners or lessees of commercial property in the CITY; and
(f) The manner in which property is used that are related to the
amount and time of noise from permitted activities, the use of
alcohol, and the nature and timing of special events.
2.23. "Governmental Reservations" refers to those actions that CITY may
take that may affect the Project or the operation of the Project, as follows:
(a) Enforcement of the specific provisions, limitations and restrictions
contained in the Project, Project Approvals, Development Plan and
Project Conditions;
(b) Enforcement of the provisions and conditions of this Agreement;
(c) Enforcement of, or pursuant to, Governmental Exceptions or
Governmental Reservations; and
(d) Enforcement of Existing General Regulations
2.24. "Include" and all contexts and forms of the words "includes" and
"including" shall be interpreted to also state "but not limited to."
2.25. "OWNER" refers to Koll Center Newport Number A, a California general
partnership.
2.26. "Mortgagee" refers to the holder of a beneficial interest under any
mortgage, deed of trust, sale - leaseback agreement, or other transaction under which all
or a portion of OWNER's interest in the Property is used as security.
2.27. "Notice" refers to any written notice or demand between the Parties
required or permitted by this Agreement.
2.28. "Parties" refers to the CITY and OWNER and a "Party" refers to the CITY
or OWNER.
2.29. "PC Text" refers to the "Koll Center Newport Planned Community
Development Plan" as amended by the City Council on the Approval date and any
subsequent modification of the PC Text with respect to the Property that are approved
by the City Council and to which OWNER consents. Except for the modifications
expressly permitted by the terms of this Agreement, OWNER shall be under no
obligation to consent to modifications of the PC Text
2.30. "Planning Commission" refers to the Planning Commission of the CITY.
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2.31. " Project" refers to the existing and proposed development of the Property
pursuant to, and consistent with the Project Approvals, consistent with and subject to
Project Conditions, and as described in the Development Plan. The Project includes
those improvements existing on the Property as of the Approval Date.
2.32. "Project Approvals" refers to all approvals, amendments, permits,
licenses, consents, rights and privileges, and other actions required or authorized to be
approved, issued or taken by CITY in connection with development of the Property,
including but not limited to the following discretionary actions:
(a) General Plan Amendment No. 97 -3(B);
(b) Zoning Code Amendment No. 898 (Koll Center Newport Planned
Community Development Plan);
(c) Traffic Study No. 119; and
(d) Environmental Impact Report No. 158 (State Clearinghouse No.
99091120).
Project Approvals also means any grants of easements, vacations, subdivisions,
resubdivisions, lot line adjustments or other actions necessary to the implementation of
the Project. Project Approvals also include any and all discretionary or ministerial
permits related to construction of the Project including grading permits, building permits,
and occupancy permits.
2.33. "Project Conditions" means all conditions to OWNER's right to proceed
with Development pursuant to the Project Approvals, including the provisions of this
Agreement, the PC Text, the mitigation measures identified in the EIR and adopted by
the City Council, conditions to approval of the Traffic Study, conditions to Project
Approvals, Existing General Regulations and Governmental Reservations. The Project
Conditions are generally described in Exhibit D. The term Project Conditions does not
included the requirement for voter approval pursuant to Section 423 of the City Charter.
2.34. "Pro e " refers to the real property described on Exhibit "A" and
depicted on Exhibit "B ".
2.35. "Subsequent Development Permits" means all Project Approvals
granted or issued by the CITY subsequent to the Approval Date in connection with
development of the Property.
2.36. "Vested Entitlement" or "Entitlement" refers to the development rights
granted OWNER pursuant to this Agreement and the Project Approvals that are subject
to Project Conditions.
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3. DEVELOPMENT OF THE PROPERTY
3.1 Development Program. Upon the Effective Date, this Agreement vests
OWNER's right to proceed with the development described in the Project Approvals and
Development Plan. OWNER acknowledges that its right to proceed with the Vested
Entitlement is subject to the Project Conditions. OWNER acknowledges that City grants
no assurance that OWNER will receive necessary permits or approvals from any other
public agency with jurisdiction over the Project or that Project Approvals will not be
subject to and affected by legal or other challenges or procedures initiated by third
parties.
(a) Permitted Uses. The Property shall be used and developed only
in the manner provided in the Project Approvals and the
Development Plan. CITY acknowledges that, from time to time,
OWNER may seek and obtain, in accordance with applicable
provisions of State and local law, minor amendments to the
Development Plan and the Project Approvals. The Planning
Director of the CITY ( "Planning Director") shall determine, subject
to appeal by OWNER to the Planning Commission, whether a
proposed amendment is a "minor amendment" for purposes of this
Agreement. A minor amendment is one that does not increase
vehicular trips or other environmental impacts associated with
Project Approvals or the Development Plan.
(b) Permitted Density of Development. OWNER shall have the
vested right to develop the Property and receive the CITY's
approval of all Project Approvals consistent with the permitted
density and level of intensity authorized by the Project Approvals
and as described in the Development Plan. The CITY shall not
impose any condition on any Project Approval that reduces the
permitted density and level of intensity allowed in the Development
Plan and discretionary Project Approvals. CITY acknowledges that
the boundaries of the parcels shown on the Development Plan and
the Project Approvals are approximate and are subject to minor
variation prior to recordation of final map(s) for the Project, provided
OWNER complies with the applicable procedures for subdivision
maps. CITY may impose standard conditions of approval on any
subdivision or resubdivision requested by OWNER so long as the
condition(s) do not reduce the permitted density or intensity, or
substantially increase the cost of the development, allowed in the
Project Approvals and described in the Development Plan.
(c) Maximum Height and Size of Structures. OWNER shall have the
vested right to develop the Property with the maximum height and
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size of structures as set forth in the Development Plan and the
Project Approvals.
3.2 Compliance with Project Conditions. OWNER acknowledges that City
Council approval of the Project Approvals, the Development Plan and this Agreement is
subject to compliance with the Project Conditions. The Project Conditions are, among
other things, designed to minimize or eliminate any adverse impacts of the Project and
protect and enhance the environment. In certain instances, the Project Conditions
exceed those that might otherwise be appropriate under "nexus" and "rough
proportionality" tests recently articulated by the courts. By entering into this Agreement,
OWNER agrees to be bound by, and waives any protest of, any Project Conditions.
Any Project Conditions imposed by the CITY after the Effective Date shall be consistent
with the Project Approvals, Development Plan and this Agreement. Owner also agrees
to abide by any conditions or modifications to the design of the Project resulting from
Project Conditions that authorize review by the City subsequent to the Approval Date.
3.3 Compliance with General Regulations. OWNER shall comply with the
Existing General Regulations. Except as otherwise specified in this Agreement,
OWNER shall not be obligated to comply with any Future General Regulations that are
in conflict with the Development Plan or this Agreement. Any Future General
Regulation(s) that are inconsistent with this Agreement and /or the Development Plan
and which do not fall within the definition of Governmental Reservations or
Governmental Exceptions shall not be applicable to the development or use of the
Property. With respect to Existing General Regulations that require the payment of
fees, costs, and expenses, the applicable fee, cost, or expense shall be that in effect
on the Approval Date subject to any automatic increases or decreases mandated by
the text of the Existing General Regulation as of the Approval Date. OWNER shall,
however, comply with: (a) any Future General Regulation that does not impair or affect
its ability to develop the Property in accordance with the Development Plan or increase
OWNER's cost or cause delays in timing. OWNER shall also comply with all provisions
of the Uniform Codes for building, fire, plumbing, mechanical and electrical, whether
adopted before or after the Approval Date by the CITY, which are in effect at the time
applications for specific Project Approvals are submitted.
3.4 Public Health and Safety /Uniform Codes. This Agreement shall not
prevent the CITY from adopting, and applying to the Project, Future General
Regulations, including Uniform Codes (as referred to above), that are based on
recommendations of a multi -state professional organization relating to the specifications
for the constructions of improvements ( "Building Codes ") and become applicable
throughout CITY. This Agreement shall not prevent the CITY from adopting, and
applying to the Project, conditions inconsistent with the Development Plan or Project
Approvals, when the conditions are adopted by the City Council after a noticed public
hearing and pursuant to a determination by the City Council that the conditions are
necessary to abate a public nuisance (Nuisance). In no event shall the CITY impose
any condition pursuant to a determination of Nuisance unless the OWNER has been
given notice of, and the right to present evidence at, a public hearing. Any
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determination of Nuisance, and the rational relationship between the Nuisance and the
conditions imposed, must be supported by substantial evidence in the record of the
hearing.
4. BENEFITS TO OWNER.
4.1 Right to Develoa. Upon the Effective Date and during the term of this
Agreement, OWNER shall have a vested right to develop, and receive building and
occupancy permits for construction on, the Property to the full extent permitted by the
Project Approvals and the Development Plan subject to the Project Conditions. CITY
shall only take action with respect to the Property that complies and is consistent with
the Project Approvals and the Development Plan unless OWNER gives its written
consent to the action or CITY is permitted to take the action pursuant to this Agreement.
OWNER may refuse to grant consent in OWNER's sole and absolute discretion. CITY
shall not impose or increase any condition or requirement (whether in the form of a fee,
tax, requirement for dedication or reservation of and, or any other type of exaction) on
the Project, except as expressly permitted by this Agreement, Existing General
Regulations, Governmental Reservations or Governmental Exceptions. However, CITY
may impose or increase a condition or requirement when such action is required (as
opposed to permitted) by State or federal law and then only to the minimum extent and
duration necessary to comply with State or federal law. Except as otherwise provided
by this Agreement, the ordinances, plans, resolutions, and policies governing the
permitted use and development of the Property shall be those described in the Project
Approvals and the Development Plan.
4.2 Reservations or Dedications of Land. No dedication or reservation of
any portion of the Property shall be required of OWNER in conjunction with the
application or issuance of any Project Approval except as may be provided in the
Project Approvals, Project Conditions, Development Plan or this Agreement.
4.3 No Additional Traffic Related Fees or Conditions. OWNER's
satisfaction of the provisions of Article 5 shall be deemed full compliance with all
Existing General Regulations, Future General Regulations and CEQA relative to traffic
impacts or traffic fees. Except as provided in Article 5, CITY shall not impose or
increase the amount of any traffic- related fee, charge, dedication, or improvement
relative to, or as a condition to, development of the Project.
4.4 Storm Drain. The CITY shall provide storm drain capacity to the exterior
boundaries of the Property to the extent, and subject to the same conditions, that
capacity is provided to similarly situated commercial property in the CITY. OWNER
agrees to accept, during the term of this Agreement, all storm drain inflow from facilities
in place as of the Effective Date.
4.5 Park Fees. OWNER and CITY acknowledge that the Project may
generate some incidental demand for, and usage of, park and open space land within
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the CITY but that the Project is exempt from the Park Dedication Ordinance (Chapter
19.50 of the Newport Beach Municipal Code) and any Existing General Regulation
relating to the dedication of land for park or open space purposes or the payment of
park or open space fees.
4.6 Future Impact Fees. Conditions. and Exactions. So long as OWNER is
not in default under this Agreement, CITY will not impose, or increase the amount of,
any impact fee, condition, mitigation measure, or exaction other than as expressly
required by the Project Approvals, Project Conditions, Existing General Regulations, the
Development Plan, or this Agreement. CITY shall not, without the written consent of
OWNER, form, or cause the formation of, any new governmental entity for the purpose
of imposing fees, conditions or exactions the CITY could not directly impose pursuant to
this Section. CITY may form or cause the formation of an assessment district (or similar
vehicle) comprised of the Property and other property in the area for the purpose of
funding public improvements that provide a special benefit to the Property. However,
CITY may not include the Property in any assessment district formed to fund
construction of public improvements that CITY is prohibited from imposing on OWNER
because of this Agreement.
4.7 Time for Construction and Completion of Project. OWNER shall have
the right to develop the Project in the manner and at the time that OWNER deems
appropriate in the exercise of its business judgment. The Parties acknowledge that
OWNER cannot predict the timing of the development of the Project because of
numerous factors not within the control of OWNER, such as market demand, economic
conditions, interest rates and competition. Subject to compliance with the provisions of
this Agreement and Project Conditions, OWNER shall, at any time during the term of
this Agreement, be entitled to apply for, and receive, Project Approvals consistent with
the Development Plan.
4.8 Development Standards. Because the Development Plan has been
prepared to meet the unique design parameters of this Project, the City Council has
determined that rigid consistency with the Existing General Regulations and Future
General Regulations is neither necessary nor appropriate. The terms and provisions of
the Project Approvals, Development Plan or this Agreement shall prevail in the event of
any conflict with Existing General Regulations or Future General Regulations.
4.9 Tentative Maps.
(a) Improvement Security. As a condition of approving a final
subdivision map or any future resubdivision for all or a portion of
the Property, the CITY may require the furnishing of appropriate
and reasonable improvement agreements and security pursuant to
the Municipal Code and the Subdivision Map Act. Nothing in this
Agreement shall be construed as altering or relieving OWNER of
any obligation imposed pursuant to the Municipal Code or the
Subdivision Map Act. The improvement requirements, exactions or
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other conditions of approval of a subdivision map, parcel map or lot
line adjustment shall be consistent with this Agreement but CITY
may impose standard conditions of approval generally applicable to
similar projects subject to the provisions Section 3.1(b).
(b) Expiration. Any current or future tentative maps for resubdivision
of the Property shall expire concurrently with the termination of this
Agreement or after the maximum period for the expiration of
tentative maps authorized by Government Code § 66452.6,
whichever is later. Should the time periods authorized by
Government Code § 66452.6 be lengthened after the execution of
this Agreement, OWNER shall be entitled to further extensions of
any tentative subdivision map applicable to the Property, to the
maximum extent authorized by law.
(c) Resubdivisions. The Parties acknowledge that resubdivisions, lot
line adjustments, or similar modifications may be necessary to
develop the Project and are contemplated by this Agreement.
These modifications or adjustments shall be approved provided
they are in substantial conformance with the Development Plan and
the Project Approvals.
4.10 Processing and Issuance of Permits.
(a) Processing of Permits. As a material term of this Agreement
benefiting OWNER, the CITY shall promptly accept for
processing /review, and expeditiously approve, permit applications
for the development and use of the Property that are in substantial
conformance with the Project Approvals, Development Plan,
Existing General Regulations, and this Agreement.
(b) Issuance of Ministerial Proiect Approvals. CITY shall issue to
OWNER all necessary use, building, occupancy, and other permits
and approvals upon request, provided that applications are
submitted in accordance with the Existing General Regulations and
are in substantial conformance with the Project Approvals,
Development Plan and this Agreement.
(c) Vesting of Prolect Approvals. Any permit, license or approval
issued pursuant to this Agreement shall be vested and deemed a
Project Approval when granted.
4.11 Future Approvals. The future approval or issuance of any Project
Approval that is consistent with the Development Plan, including any permit, license or
authorization to proceed, subdivisions, resubdivisions, lot line adjustments, vacations
and similar actions shall not require an amendment of this Agreement
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5. PUBLIC IMPROVEMENTS
5.1 Regional Transportation Facilities Fees. OWNER acknowledges that
CITY is bound by provisions of ordinances, agreements, rules and regulations related to
the financing, construction and operation of major transportation improvements that
benefit large areas of Orange County including the Property. OWNER shall comply with
the provisions of all such ordinances, agreements, rules and regulations, including the
payment of fees required by the San Joaquin Hills Transportation Corridor Joint Powers
Agreement and/or the Transportation Corridor Agency (collectively, the "TCA ").
OWNER acknowledges that it is required to comply with Chapter 15.42 of the Newport
Beach Municipal Code. OWNER shall have the right to appeal or contest the imposition
and/or amount of fees through any procedure adopted or used by the TCA for that
purpose. OWNER shall also have the right to commence litigation relative to the
amount, method of calculating or timing of any fees or the procedure utilized by the TCA
or other agency to resolve disputes relative to fees. OWNER shall hold CITY harmless
with respect to any loss, damage claim or liability arising out of any litigation
commenced by OWNER that is related to this Section. OWNER agrees that satisfaction
of the provisions of this Section is a condition to any discretionary or ministerial Project
Approval. CITY shall not be required to Issue any discretionary or ministerial Project
Approval until OWNER provides proof that all fees required to be paid to the TCA,
whether pursuant to ordinance, settlement or judgment, have been paid.
5.2 Fair Share Traffic Fees. OWNER shall pay two hundred and thirty-five
thousand, five hundred and seventy dollars ($235,570) in fees required pursuant to
Chapter 15.38 of the Code (Project Fair Share Fees). The Project Fair Share Fees are
based on the one thousand seven hundred and seventy (1770) additional average daily
trips generated by the Project multiplied by the current per trip fee of one hundred thirty
three dollars and nine cents ($133.09). The Project Fair Share Fees shall be paid at the
time specified in Chapter 15.38 of the Code.
5.3 TPO Improvements. OWNER shall contribute funds to be used by CITY
for the construction of the circulation system improvements identified in Traffic Study
119 (TPO Improvements). OWNER's contributions to the funding of the TPO
Improvements equal or exceed the requirements of the TPO and OWNER's
contributions to the funding of the TPO Improvements is in addition to all other fees,
charges or contributions required by this Agreement and/or existing General
Regulations. OWNER's contribution to the TPO Improvements shall be the sum of
seventy thousand dollars ($70,000) to fund construction of a second northbound
(MacArthur) left turn lane, the construction of a second southbound (MacArthur) left turn
lane and the construction of a second northbound (MacArthur) right turn lane at the
MacArthur /Jamboree intersection (MacArthur Project). City has prepared preliminary
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plans, specifications and cost estimates for the MacArthur Project. The MacArthur
Project fully mitigates the impacts of Project trips at the MacArthur /Jamboree
intersection as required by the TPO. The MacArthur Project is anticipated to cost one
million seven hundred and sixty thousand dollars ($1,760,000). OWNER's contribution
to the MacArthur Project represents four percent (4 %) of the cost of the TPO
improvements and has been calculated as specified in the TPO. CITY agrees to
provide any supplemental funds necessary to ensure that construction of the MacArthur
Project is complete no later than one year after occupancy of any development
authorized by the Project Approvals.
5.4 Long Range Traffic Improvements.
(a) Introduction. The EIR evaluated the "long term" impacts of the
Project on major intersections in Newport Beach and Irvine (Long -range
Analysis). The Long -range Analysis assumed construction of all
entitlement and all circulation system improvements authorized in the
Land Use and Circulation Elements of the Newport Beach General Plan
(including the TPO Improvements). The Long -range Analysis also
assumed the construction of entitlement and circulation system
improvements contemplated for the year 2020 in the Land Use and
Circulation Elements of the Irvine General Plan. The Long- range
Analysis concluded that the Project would, depending on the construction
of the J5 Ramp, have significant long -range adverse traffic impacts on four
(4) or five (5) major intersections. The potential cost of mitigating the long -
range impacts of the Project on intersections in the airport area could be
significant. For example, mitigation of the impact of Project trips on
service levels may require the construction of a grade separation and
access ramps at the MacArthur /Jamboree intersection. The CITY has
prepared conceptual plans for a grade separation at the
Jamboree /MacArthur intersection and very preliminary cost estimates
indicate that improvement costs, exclusive of right -of -way could be in the
range of fifteen million dollars ($15,000,000) to twenty million dollars
($20,000,000). Moreover, the approval of the Project will result in an
increase in average daily trips in the vicinity of the Project that may require
other property owners to make improvements pursuant to the TPO that
would not be necessary but for the Project.
(b) OWNER Commitments. OWNER agrees to do the following:
(i) Pay the CITY, within sixty (60) days after the Effective Date,
forty-five cents ($.45) per square foot of additional entitlement
granted pursuant to the Project Approvals to be used by the CITY
solely for the purpose of funding a Planning Study for the Airport
Area.
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(ii) Pay the CITY the sum of eight dollars ($8.00) per square
foot of additional entitlement authorized by the Project Approvals
(Mitigation Fee). In the event a building permit is not issued within
twelve (12) months after the Effective Date, the amount of the
Mitigation Fee shall be increased by fifty cents ($.50) every twelve
months after the Effective Date.
(c) Payment. OWNER shall pay the Mitigation Fee prior to the
issuance of any building permit for the Project.
(d) Compliance. OWNER's compliance with the provisions of this
Section shall relieve OWNER of any obligation to participate in any
circulation system funding program developed and implemented by the
CITY including a specific area plan or major thoroughfare program for the
airport area. OWNER's compliance with the provisions of this Article shall
constitute full and complete satisfaction of any obligation to make or fund,
in whole or in part, any CITY circulation system improvement as a
condition to development of the Project.
5.5 Fire Station Fee. The EIR concludes that fire suppression service to the
Project will not meet CITY response time standards in the event of the closure of OCFA
Station 27. CITY has conducted studies of fire service needs in the airport area and
options for providing fire suppression and paramedic services consistent with CITY
standards. The options for providing fire suppression and paramedic services include
the construction, equipping and staffing a new fire station in the airport area or
immediately south of Bristol Street in Santa Ana Heights (New Fire Station). The
current estimated cost of constructing and equipping a New Fire Station is two million
dollars ($2,000,000). OWNER shall pay CITY a fire suppression impact fee (FSIF) of
sixty thousand dollars ($60,000) to be used solely to fund the acquisition of a fire station
site, the construction of the New Fire Station, and/or the equipping /staffing of the
station. OWNER shall pay the FSIF within ten (10) days after obtaining any permit for
grading or construction on the Property pursuant to this Agreement. Payment of the
FSIF shall fully discharge OWNER from any obligation to pay any fee pursuant to fire
suppression facility impact fee program (Program) for area served by the New Fire
Station.
5.6 Circulation Study. Prior to the issuance of a building permit, OWNER
shall prepare a study to evaluate the adequacy of on -site circulation and the impact of ,
that circulation and vehicle ingress and egress on traffic flow on or through adjacent
roadways and intersections. The study shall be conducted under the direction, and to
the satisfaction, of the Transportation and Development Services Manager. OWNER
shall, at OWNER's sole cost and prior to occupancy, incorporate all feasible study
recommendations relative to ensuring adequate on -site circulation. OWNER shall also,
at OWNER's sole cost and prior to occupancy, make all feasible improvements to
mitigate any significant impact of vehicle stacking on traffic flow on or through adjacent
roadways or intersections.
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6. SPECIAL PROVISIONS
6.1 Sales Tax Principles. OWNER has the right, pursuant to the Bradley
Burns Uniform Local Sales and Use Tax Law (Tax Law) to make a direct sales or use
tax (Tax) payment through a "direct pay permit" for certain purchases, leases and sales
(Eligible Transactions). CITY receives substantially more Tax from OWNER if OWNER
directly pays the Tax on all Eligible Transactions.
6.2 Tax Program. OWNER shall, within thirty (30) days after the Effective
Date, prepare, and submit to the Revenue Manager of CITY for approval, a Sales and
Use Tax Program (Program) that, at a minimum, has the following components:
(a) OWNER's commitment to, during the term of this Agreement,
maintain a direct pay permit or similar authorization to directly pay Tax on
all Eligible Transactions;
(b) procedures that Owner will implement to maximize the amount of
Tax paid to the City with respect to construction of the Project.
(c) procedures pursuant to which OWNER will provide City with
information identifying all buyers and sellers with whom OWNER and /or
OWNER's contractors do business.
The Program shall also contain other information relevant to OWNER's compliance with
the terms and conditions of this Agreement pertaining to the direct payment of Tax.
OWNER shall, within thirty (30) days after the Effective Date, submit the Program to the
Revenue Manager of CITY for approval. OWNER shall modify the Program in
accordance with any and all reasonable recommendations of the Revenue Manager
that are consistent with the intent of this Section. OWNER shall, during the term of this
Agreement, fully implement the Program approved by the Revenue Manager.
7. ANNUAL REVIEW.
7.1 CITY and OWNER Responsibilities. Each Party shall review the other
Party's good faith substantial compliance with this Agreement once each year (the
"Annual Review"). As part of the Annual Review, OWNER shall submit to CITY an
annual review statement describing its actions in compliance with this Agreement and
the Development Plan.
7.2 Procedure. In connection with the Annual Review, each Party shall have
a reasonable opportunity to advise the other of alleged or potential breaches of this
Agreement or the Development Plan, to explain the basis for that Party's position, and
to receive from the other Party a statement of its position. A Party may issue a written
"Notice of Non - Compliance" specifying the factual basis for the notice if, on the basis of
the Annual Review, that Party concludes that the other Party has not complied in good
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faith with the terms of this Agreement or the Development Plan. The Party receiving a
Notice of Non - Compliance shall have thirty (30) days to respond in writing. If a Notice
of Non - Compliance is contested, the Parties shall have up to sixty (60) days to arrive at
a mutually acceptable resolution of the matter(s) occasioning the Notice. In the event
that the Parties are not able to arrive at a mutually acceptable resolution of the matter(s)
by the end of the sixty (60) day period, the Party alleging the non - compliance may
pursue the remedies provided in this Agreement.
7.3 Mitigation Monitoring. The Annual Review shall include an analysis of
compliance with the various conditions and mitigation measures related to the Project.
7.4 Estoppel Certificate. Either Party may at any time deliver written Notice
to the other Party requesting an estoppel certificate (the "Estoppel Certificate ") stating:
(a) The Agreement is in full force and effect and is a binding obligation
of the Parties.
(b) The Agreement has not been amended or modified either orally or
in writing or, if amended, identifying the amendments.
(c) To the best of the signing Party's knowledge, no Default in the
performance of the requesting Party's obligations under the Agreement
exists or, if a Default does exist, the nature of the Default.
A Party receiving a request for an Estoppel Certificate shall provide a signed certificate
to the requesting Party within thirty (30) days after receipt of the request. The City
Manager may sign an Estoppel Certificate on behalf of the CITY.
7.5 Failure to Conduct Annual Review. The failure to conduct an Annual
Review shall not constitute a Default of either Party or be asserted as a Default by
either Party.
8. GENERAL PROVISIONS
8.1 Effective Date. This Agreement shall bind the Parties as of the Approval
Date subject to the Adopting Ordinance becoming effective. The Parties acknowledge
and agree that none of the Project Approvals becomes effective unless the voters
approve GPA 97 -3(B) pursuant to the provisions of Section 423 of the City Charter. The
Adopting Ordinances shall be deemed effective when and if the City Clerk certifies to
the City Council the results of any election conducted pursuant to Section 423 of the
City Charter.
8.2 Term of Aareement. The term of this Agreement (the 'Term ") shall begin
on the Effective Date and continue for a term of twenty-five (25) years unless otherwise
terminated or modified pursuant to this Agreement, or extended pursuant to the
provisions and conditions of Section 11.
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8.3 Assignment. OWNER has the absolute right to assign its rights and /or
delegate its obligations under this Agreement and the Development Plan as part of an
assignment of all or a portion of the Property. Any assignment shall be subject to the
provisions of this Agreement. As long as OWNER owns/leases any part of the
Property, OWNER may (at its election) assign the benefits of this Agreement without
delegating the obligations for the portion of the Property assigned. If that occurs,
however, the benefits assigned shall remain subject to the performance by OWNER of
the corresponding obligations. Upon any assignment of all or a portion of the Property,
OWNER shall be released from all obligations under this Agreement that relate to the
portion of the Property being transferred as of the date the assignment is effective.
Where an assignment includes the delegation of the corresponding obligations, those
obligations become solely the obligations of the Assignee. If an Assignee is in Default,
then as to OWNER or any Assignees not in Default, the Default shall not: (i) constitute
their Default; (ii) give grounds for termination of their rights under this Agreement; or (iii)
be a basis for an enforcement action against them.
8.4 Amendment of Agreement.
(a) Consent. Subject to the provisions of Subsection 8.4(b), this
Agreement may be amended from time to time by the mutual consent of
the Parties, or their successors in interest, but only in the manner provided
by the Government Code, the Newport Beach Municipal Code and this
Agreement. After any amendment, the term "Agreement" shall refer to the
amended Agreement.
(b) Amendments. The Parties acknowledge that OWNER may
determine that amendments to the Development Plan and /or Project
Approvals are appropriate and desirable. In such event, OWNER may
apply in writing for an amendment to prior Project Approvals or the
Development Plan. CITY shall process and act on the application. CITY
shall have no obligation to grant any application that amends the permitted
land uses, the overall intensity or density of the Project, or otherwise is an
amendment of the Development Plan that could have one or more
significant adverse environmental impacts. Any approved amendment
shall be incorporated into this Agreement by reference and may be further
amended from time to time as provided in this Section.
8.5 Enforcement. This Agreement is enforceable by each of the Parties and
their respective successors and assigns, provided, however, in the event of a Default
the remedies shall be limited to those specified in Section 10.7.
8.6 Termination. This Agreement shall be deemed terminated and of no
further effect upon the occurrence of any of the following events:
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(a) Expiration of the term in accordance with Section 8.2;
(b) Entry, after all appeals have been exhausted, of a final judgment or
issuance of a final order directing the CITY to set aside, withdraw, or
abrogate the CITY's approval of this Agreement or any material part of the
Project or Project Approvals; or
(c) The effective date of a Party's election to terminate the Agreement
as provided in Section 10.3 of this Agreement.
8.7 Right to Terminate Upon Specified Events. Notwithstanding any other
provision of this Agreement, OWNER retains the right to terminate this Agreement upon
thirty (30) days written notice to CITY in the event that OWNER reasonably determines
that continued development of the Project consistent with the Development Plan has
become economically infeasible due to changed market conditions, increased
development costs, burdens imposed by the CITY or other governmental entity as
conditions to future discretionary approvals of the Project consistent with this
Agreement, the CITY's exercise of the Governmental Reservations in a way deemed by
OWNER to be inconsistent with the Development Plan, or similar factors.
9. CONFLICTS OF LAW.
9.1 Conflict with State and Federal Laws and Regulations. Where State
or federal law or regulation prevents compliance with one or more provisions of this
Agreement, those provisions shall be modified to the minimum extent necessary to
comply with the State or federal laws or regulations, and the modified Agreement shall
remain in effect, subject to the following:
(a) The CITY shall not request modification of this Agreement pursuant
to this provision unless and until the City Council makes a finding, based
on substantial evidence in the record of a public hearing where OWNER
has notice and an opportunity to present evidence, that the modification is
required (as opposed to permitted) by State and federal law or regulation;
(b) The modifications must be limited to those required (as opposed to
permitted) by the State or federal law or regulation;
(c) The modified Agreement must be consistent with the State or
federal law or regulation requiring the modification;
(d) The intended material benefits of this Agreement must still be
received by each of the Parties after modification; and
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(e) The modification and any applicable local, State, or federal law or
regulation does not render the modified Agreement impractical to enforce;
9.2 Controlling Law. This Agreement shall be governed by the laws of the
State of California.
10. DEFAULT, REMEDIES AND TERMINATION.
10.1 General Provisions. In the event of a Default the Party alleging a Default
shall give the other Party a written Notice of Default. The Notice of Default shall specify
the nature of the alleged Default, and a reasonable manner and sufficient period of time
(not less than thirty (30) days) 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 the Agreement or institution of legal proceedings. If the
alleged Default is cured within the Cure Period then a Default shall be deemed not to
exist. Neither Party shall initiate nor pursue legal proceedings if the Default in question
is not susceptible of cure within the applicable Cure Period, and the Defaulting Party
commences its cure within the Cure Period and diligently pursues the cure to
completion.
10.2 Option to Institute Legal Proceedings or to Terminate. The noticing
Party must give the Defaulting Party a Notice of intent to terminate this Agreement if the
noticing Party intends to terminate the Agreement and the alleged Default is not cured
within the Cure Period. The City Council shall, no later than forty -five (45) days after a
Notice of intent is served on either Party, hold a public hearing in the manner specified
in the Government Code and /or the Municipal Code to consider and review the alleged
Default.
10.3 Notice of Termination. After the public hearing described in Section
10.2, the Party alleging the Default, at its option, may give written Notice of termination
of the Agreement to the other Party. The Agreement shall be terminated immediately
upon giving the Notice. A termination shall be valid only if good cause exists and a
preponderance of the evidence presented to the City Council at the public hearing
establishes the continued existence of a Default after the Cure Period. The findings of
the City Council as to the existence of a Default shall have no weight in any legal
proceeding brought to determine the existence of a Default. The validity of any
termination may be challenged pursuant to Section 12.17, in which case the court shall
render an independent judgment as to the existence of a Default and good cause for
termination. Termination may result only from a material Default of a material provision
of this Agreement.
10.4. Waiver. Failure or delay in giving Notice of Default shall not waive a
Party's right to give future Notice of the same or any other Default.
10.5 Default by OWNER. Subject to and after termination of this Agreement in
compliance with Sections 10.1 through 10.3, if OWNER Defaults, the CITY shall have
21
no obligation to perform any of CITY's obligations under this Agreement (as opposed to
the CITY's obligations under the Development Plan and the General Regulations),
unless otherwise ordered by a court of competent jurisdiction. The CITY's election not
to perform as permitted by this provision shall not constitute a Default.
10.6 Default by the CITY. Subject to and after termination of this Agreement
in compliance with Sections 10.1 through 10.3, if the CITY Defaults, OWNER shall have
no obligation to perform any of OWNER's obligations under this Agreement, unless
otherwise ordered by a court of law. However, OWNER shall not be entitled to receive
Project Approvals or take any other action inconsistent with provisions of the
Development Plan, the Newport Beach General Plan, or relevant zoning ordinances
unless otherwise permitted by law. OWNER's election not to perform as permitted by
this provision shall not constitute a Default.
10.7 Specific Performance.
(a) The Parties agree that, except as provided in Subsection 9.7.b., the
loss by either of them of their respective rights under this Agreement
would not be compensable through monetary damages. Therefore, the
remedy for a Default for each Party shall be limited to specific
performance and /or injunctive relief.
(b) Notwithstanding the foregoing, in the event any development fees
or taxes are imposed on development of the Property other than those
authorized pursuant to this Agreement or the Development Plan, OWNER
shall be entitled to recover from CITY restitution of all improperly assessed
fees or taxes, together with interest thereon at the maximum allowable
non - usurious rate from the date such sums were paid to CITY to the date
of restitution.
10.8 Effect of Termination. The termination of this Agreement shall not affect
the rights, duties and obligations, if any, of any successor to OWNER to comply with the
Project Approvals. .
11. ENCUMBRANCES AND RELEASES ON PROPERTY.
11.1 Discretion to Encumber. This Agreement shall not prevent or limit
OWNER, in any manner, at OWNER's sole discretion, from encumbering the Property
or any portion thereof or any improvement on the Property by any mortgage, deed of
trust, or other security device securing financing with respect to the Property or its
improvements.
11.2 Entitlement to Written Notice of Default. A Mortgagee shall, upon
written request to CITY, be entitled to receive from CITY written notification of any
default by Owner of the performance of OWNER's obligations under this Agreement
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which has not been cured within thirty (30) days following the date of the Notice of such
default.
(a) Notwithstanding OWNER's default, this Agreement shall not be
terminated by CITY as to any Mortgagee to whom Notice is to be given
and to which either of the following is true:
(i) The Mortgagee cures any default by OWNER involving the
payment of money within sixty (60) days after the Notice of default;
provided, however, that if any such default cannot, with diligence,
be cured within the sixty (60) day period, then the Mortgagee shall
have additional time as may be reasonably necessary to cure the
default if the Mortgagee commences the cure within the sixty (60)
day period and diligently pursues the cure to completion.
(ii) As to defaults requiring title or possession of all or a portion
of the Property to cure: (i) the Mortgagee agrees in writing, within
sixty (60) days after receipt from CITY of the written Notice of
default, to perform the proportionate share of OWNER's obligations
under this Agreement allocable to that part of Property in which the
Mortgagee has an interest conditioned upon the Mortgagee's
acquisition of the required portion of the Property by foreclosure
(including a trustee sale) or by a deed in lieu of foreclosure; (ii) the
Mortgagee commences foreclosure proceedings to reacquire title to
the Property or applicable portion thereof within the sixty (30) days
and thereafter diligently pursues foreclosure to completion; and (iii)
the Mortgagee promptly and diligently cures the default after
obtaining title or possession. Subject to the foregoing, in the event
of any Mortgagee records a Notice of default as to its mortgage or
deed of trust, CITY shall consent to the assignment of all of
OWNER's rights and obligations under this Agreement to the
Mortgagee or to any purchaser of OWNER's interest at a
foreclosure or trustee sale and OWNER shall remain liable for such
obligations unless released by CITY or unless the applicable
portion of OWNER's Property is transferred.
(b) Notwithstanding Subsection 11.2.a. of this Agreement, if any
Mortgagee is prohibited from commencing or prosecuting foreclosure or
other appropriate proceedings including by any process of injunction
issued by any court or by reason of any action by any court having
jurisdiction of any bankruptcy or insolvency proceedings involving
OWNER, the times specified in Subsection 11.2.a of this Agreement for
commencing or prosecuting foreclosure or other proceedings shall be
tolled during the period of the prohibition.
(c) OWNER's execution or breach of this Agreement shall not defeat,
render invalid, diminish or impair the lien of any existing or future
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mortgage or deed of trust on OWNER's Property made in good faith and
for value.
11.3. Mortgagee Not Obligated. Except as provided in this Agreement, no
Mortgagee shall have an obligation or duty under this Agreement to perform the
obligations of OWNER or other affirmative covenants of OWNER or to guarantee such
performance. No Mortgagee shall be liable for any Default or monetary obligations of
OWNER arising prior to acquisition of title to the Property by the Mortgagee or their
respective successors or assigns. However, to the extent any covenant to be
performed by OWNER is a condition to the performance of a covenant by CITY, the
performance shall continue to be a condition precedent to CITY's performance. In the
event a Mortgagee elects to develop the Property in accordance with the Development
Plan, the Mortgagee shall be required to assume and perform the obligations or other
affirmative covenants of OWNER under this Agreement.
12. MISCELLANEOUS PROVISIONS.
12.1 Notices. All Notices shall be written and delivered by personal delivery
(including Federal Express and other commercial express delivery services providing
acknowledgments or receipt), registered, certified, or express mail, or telegram to the
addresses set forth below. Receipt shall be deemed complete as follows:
(a) For personal delivery, upon actual receipt; and,
(b) For registered, certified, or express mail, upon the delivery date or
attempted delivery date as shown on the return receipt.
Notices shall be addressed as follows:
To the CITY: City Manager - City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92660
Attention: City Manager
To OWNER: Koll Center Newport Number A
4343 Von Karman Ave.
Newport Beach, CA 92660
Attn: Don Koll
CC: Starpointe Ventures
Either party may give the other a "Notice of a New Address" to modify this Subsection.
12.2 Enforcement Delay: Extension of Time of Performance. Neither Party
shall be deemed to be in Default where delays or non - performance are due to war,
insurrection, strikes, walkouts, riots, floods, earthquakes, fires, oil spills, casualties, acts
of nature, unavailability of materials, governmental restrictions imposed or mandated by
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governmental entities other than CITY, suspension of rights in accordance with the
existence of unforeseen circumstances, governmental moratorium other than a
moratorium enacted by CITY, litigation, or siml'lar bases for excused performance. An
extension of time for performance shall be deemed granted for the period of the delay,
or longer as may be mutually agreed upon, but in no case shall the extension of time for
performance exceed six (6) months.
12.3 Severability. If any material part of the Agreement is found by a court to
be invalid, void, or illegal, the Parties shall modify the Agreement to implement the prior
intent of the Parties. These steps may include the waiver by either of the Parties of their
right under the unenforceable provision. If, however, the Agreement objectively cannot
be modified to implement the prior intent of the Parties and the Party substantially
benefited by the material provision does not waive its rights under the unenforceable
provisions, the entire Agreement shall become void. For purposes of this Section, and
without excluding the possible materiality of other provisions of this Agreement, all
provisions of Sections 3, 4 and 5 are deemed "material ".
12.4 Entire Agreement. This Agreement constitutes the entire understanding
and Agreement of the Parties regarding the subject matter. This Agreement
supersedes all negotiations and previous offers and understandings between the
Parties regarding the subject matter.
12.5 Waivers. All waivers of the provisions of this Agreement must be in
writing and signed by the Party making the waiver.
12.6 Incorporation of Recitals. The Recitals in Section 1 are part of this
Agreement.
12.7 Covenant of Good Faith and Fair Dealing. Neither Party shall do
anything that has the effect of harming or injuring the right of the other Party to receive
the benefits of this Agreement.
12.8 Covenant of Cooperation. The CITY shall cooperate with OWNER to
obtain any permits from other public agencies that may be required for development of
the Project. OWNER may challenge any ordinance, measure, moratorium, or other
limitation in a court of law if litigation is necessary to protect the development rights
vested in the Property pursuant to this Agreement.
12.9 Justifiable Reliance. CITY acknowledges that, OWNER will reasonably
be relying on CITY's performance of its covenants in this Agreement when OWNER
invests money and effort in construction of the Project.
12.10 Further Actions and Instruments. Upon the request of either Party, the
other Party shall promptly execute documents, with acknowledgment or affidavit if
reasonably required, and take any other action reasonably necessary to implement the
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terms and conditions of this Agreement or permit development of the Project in
accordance with the Development Plan.
12.11 Successors and Assigns. Subject to Section 8.3 above, the burdens of
this Agreement shall be binding upon, and the benefits of the Agreement inure to, all
successors -in- interest and assigns of the Parties.
12.12 Construction of Agreement. All language in all parts of this Agreement
shall be construed as a whole and given its fair meaning. The captions of the Sections
and Subsections are for convenience only and shall not be considered or referred to in
resolving questions of construction. This Agreement does not, and is not intended to,
impermissibly contract away the police power, legislative authority or governmental
functions of the CITY in general or with respect to the Property.
12.13 Authority to Execute. The person executing this Agreement on behalf of
OWNER warrants and represents that he /she has the authority to do so and the
authority to bind OWNER to the performance of OWNER's obligations under this
Agreement.
12.14 Consent. Any consent required by the Parties in carrying out the terms of
this Agreement shall not be unreasonably withheld.
12.15 Effect on Title. This Agreement shall not continue as an encumbrance
against any portion of the Property as to which this Agreement has terminated.
12.16 Recording. The City Clerk shall cause a copy of this Agreement to be
executed by the CITY and recorded in the Official Records of Orange County no later
than ten (10) days after the Effective Date. The recordation of this Agreement s is a
ministerial act and the failure of the CITY to record the Agreement as required by this
Section and Government Code § 65868.5 does not make the Agreement void or
ineffective.
12.17 Institution of Legal Action. In addition to any other rights or remedies,
either Party may institute legal action to cure, correct, or remedy any Default, to enforce
any provision of this Agreement, to enjoin any threatened or attempted violation of this
Agreement, or to obtain any remedies consistent with the purpose of this Agreement.
Legal actions shall be instituted in the Superior Court of the County of Orange, State of
California.
12.18 Attorneys' Fees. In any arbitration, quasi - judicial, administrative, or
judicial proceeding between the Parties initiated with respect to this Agreement, the
prevailing party shall be entitled to reasonable attorneys' fees and all costs, expenses,
and disbursements in connection with such action.
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12.19 Relationship of the Parties. The contractual relationship between CITY
and OWNER arising out of the Agreement is one of independent contractor and not
agency. This Agreement does not create any third party beneficiary rights.
12.20 Indemnification. OWNER and CITY agree to cooperate in the defense of
any legal action filed and prosecuted by any person or entity other than the Parties that
challenges the validity or manner of approval of this Agreement, the Project Approvals
or the Project Conditions (Third Party Lawsuit). CITY will promptly notify OWNER of
any Third Party Lawsuit upon service. CITY may retain counsel to defend the Third
Party Lawsuit and, in such event, OWNER shall pay all attorneys fees and costs
incurred by the CITY in the defense of the Third Party Lawsuit. OWNER shall also
indemnify and hold harmless the CITY and its officers and employees with respect to
any costs, expenses, judgment, damages or award, including an award of attorney fees
and /or costs to any third party, arising out of any Third Party Lawsuit. OWNER
acknowledges and agrees that CITY has fully complied with all applicable statutes,
ordinances, including the provisions of CEQA, the State Zoning and Planning Act, and
Existing General Regulations in the initiation, processing, evaluation and approval of all
Project Approvals. OWNER's obligations pursuant to this Section shall commence as of
the Approval Date and continue for the period specified in Section 8.2 or until this
Agreement terminates, whichever occurs first. The obligation of OWNER to defend,
indemnify and hold CITY harmless shall not apply to the fraud or willful misconduct of
the CITY or its officers or employees that occurred on or before the Approval Date. The
obligation of OWNER to defend, indemnify and hold CITY harmless shall not apply to
the fraud, willful misconduct or violation of law by the CITY or its officers and employees
that occurs after the Approval Date.
12.21 Payments. Any payment due pursuant to this Agreement shall bear
interest at the rate of ten percent (10 %) per annum on the unpaid balance from the date
due until paid with interest compounded monthly.
Dated: 2000
Dated: 2000
27
CITY OF NEWPORT BEACH
A
Mayor
KOLL CENTER NEWPORT NUMBER A
a
Its:
ORDINANCE NO. 2001 -12
AN ORDINANCE.OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH APPROVING A ZONING
AMENDMENT INCREASING THE MAXIMUM
ALLOWABLE BUILDING SQUARE FOOTAGE IN OFFICE
SITE B OF THE KOLL CENTER NEWPORT PLANNED
COMMUNITY [ZONING AMENDMENT 9051 .
WHEREAS, Koll Center Newport Number A ( "Developer "), 1900 Main Street, Suite 350,
Irvine, California, has applied to the City of Newport Beach ( "City ") for a General Plan
Amendment (GPA 97 -3(B)) and a Zoning Amendment for "Office Site B" of the Koll
Center Newport (KCN) .Planned Community in, order to allow future additional
development on Parcel 1 of PMB 114/22 -24 and Parcels 1, 2, and 7 of PMB 181/13 -19;
and
WHEREAS, the proposed Amendment to the Koll Center Newport Planned Community
text would increase the maximum allowable building floor area in KCN Office Site B to a
total of 1,201,349 net square feet while eliminating restaurant and retail - service uses;
and
WHEREAS, on August 3 and September 7, 2000 and June 7, 2001, the Planning
Commission held duly- noticed public hearings, and, at the conclusion of the hearing and
after considering the evidence and arguments submitted by the City staff, Developer,
and all interested parties, adopted a resolution recommending that the City Council
approve the Zoning Amendment; and
WHEREAS, on June 26, 2001, the City Council held a public hearing and considered
the Zoning Amendment, the recommendation of the Planning Commission, and the
evidence and arguments submitted by the City staff, Developer, and all interested
parties a notice of time, place and purpose of the public hearing was duly given and
testimony was presented to and considered by the City Council at the public hearing.
THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH DOES HEREBY ORDAIN
AS FOLLOWS:
SECTION 1: ENVIRONMENTAL REVIEW. Pursuant to CEQA and the CEQA
Guidelines, an Environmental Impact Report (EIR) has been prepared for this project.
After reviewing the EIR, all comments received during the public review process, and all
responses to those comments, the City Council has certified the EIR as complete,
reflecting the independent judgment of the City of Newport Beach. All records pertaining
to preparation, review, and comment on the EIR are retained in the Planning
Department of the City of Newport Beach.
SECTION 2: FINDINGS. The City Council finds as follows with regard to Zoning
Amendment 905:
1. The amendment is consistent with the General Plan assuming that GPA 97 -3(B)
Is approved by the electorate pursuant Section 423 of the City Charter in that it
provides for an increase in square footage commensurate with that allowed by
GPA 97 -3(B).
2. The internal consistency of the Planned Community text will be retained in that all
development square footages and open space acreages have been adjusted to
retain appropriate development and open space percentages.
SECTION 3: ZONING AMENDMENT.
1. The City Council hereby adopts, by reference, the CEQA- required "Statement of
Findings ", attached as Exhibit "EIR -1" to the resolution certifying the project
Environmental Impact Report (EIR). The Statement of Findings constitutes a set
of binding obligations effective upon this project approval. Pursuant to Section
15091 of the State CEQA Guidelines, the Statement of Findings summarizes the
impacts of the project, the mitigation measures required to avoid or substantially
lessen each of those impacts, and the "substantial evidence in the record"
supporting the finding of each such impact which will be avoided or substantially
lessened.
2. The City Council hereby adopts, by reference, the "Statement of Overriding
Considerations ", attached as Exhibit "EIR -2" to the resolution certifying the
project Environmental Impact Report. The EIR identifies certain environmental
impacts of the project which cannot be avoided or substantially lessened. The
City Council has balanced these significant adverse environmental impacts
against environmental benefits and other benefits resulting from approval of the
proposed Project, which are identified in the Statement of Overriding
Considerations, and hereby finds that the benefits override the identified adverse
environmental impacts.
3. The City Council hereby adopts, by reference, the "Mitigation Monitoring and
Reporting Program" (MMRP), attached as Exhibit "EIR -3" to the resolution
certifying the project Environmental Impact Report, and directs that mitigation
measures be implemented in accordance with the MMRP.
4. In light of the preceding findings and actions, the City Council hereby approves
Zoning Amendment 905, consisting of the amendments to the Koil Center
Newport Planned Community Development Standards specified in Exhibit 'ZA -1 ",
attached hereto, subject to the mitigation measures identified in the
Environmental Impact Report and listed in Exhibit "EIR -5" as conditions of
approval of the Zoning Amendment, as stipulated in Exhibit "ZA -1 ".
SECTION 4: The Mayor shall sign and the City Clerk shall attest to the passage of this
Ordinance. This Ordinance shall be published once in the official newspaper of the
City, and the Ordinance shall become effective upon certification by the City Clerk to the
City Council that GPA 97 -3(8) has been approved by the electorate pursuant to Section
423 of the City Charter.
This Ordinance was introduced at a regular meeting of the City Council of the City of
Newport Beach held on July 10, 2001 and adopted on July 24, 2001 by the following vote,
to wit:
AYES, COUNCIL MEMBERS
NOES, COUNCIL MEMBERS
ABSENT COUNCIL MEMBERS
MAYOR
ATTEST:
CITY CLERK
EXHIBIT ZA -1:
KOLL CENTER NEWPORT PLANNED COMMUNITY
TEXT AMENDMENT (AMENDMENT NO. 905)
The Planned Community Development Standards for Koll Center Newport is amended as follows:
Page 1:
DEVELOPMENT CONSIDERATIONS
First Two Paragraphs: [No changes]
Insert New Third Paragraph: "All development and land use within the Kell Center Newport
Planned Community shall be subject to implementation of the
mitigation measures specified in the applicable Environmental
Impact Report Mitigation Monitoring and Reporting Program
(MMRP) for that project and /or land use (including, but not limited
to, the MMRP related to EIR No. 158 for the Koll Office Site B
expansion project)." (TBD)
Remainder of Section on [No changes]
"DEVELOPMENT
CONSIDERATIONS"
Pages 1416:
PART II. COMMERCIAL
Section I. Site Area and Building Area
Interior noise shall be mitigated to the levels prescribed in the Airport
Environs Land Use Plan and the City of Newport Beach General Plan Noise
Element. Also, rooftop obstruction lighting shall be provided for buildings ten
stories or higher in accordance with Federal Aviation Administration
standards.
Group 1. PROFESSIONAL & BUSINESS OFFICES
Acreages shown are net buildable land area, including landscape
setbacks with property lines. (4)
A. Building Sites [No changes]
B. Allowable Building Area
Note: Building areas shown in this Part II are net floor areas,
excluding non - habitable space such as equipment rooms,
elevator shafts, stairwells, etc. (Net floor areas shall generally
be taken as 95 percent of gross floor area.)
n
Site A:
340,002 square feet (16)
Site B:
1,201,349 square feet (13)(16) (TBD)
Site C:
674,800 square feet (10)(15)
Site D:
240,149 square feet (8)(13)
Site E:
32,500 square feet (4)
Site F:
24,300 square feet (4)
Site G:
45,000 square feet (8)
2,558,100 square feet (15) (TBD)
C. Statistical Analysis (4)
The following statistics are for information only. Development may
include but shall not be limited to the following:
Story heights shown are average heights for possible development.
The buildings within each parcel may vary.
Assumed Parking Criteria:
a. [No changes]
b. For Sites A, B and C, the Parking Pool Exception of Part
III, Section I -B shall apply: (11) (TBD)
• For the first 125,000 square feet, parking shall be
provided at one space per 250 square feet of net floor
area.
• For the next 300,000 square feet, parking shall be
provided at one space per 300 square feet of net floor
area.
• For any additional floor area, parking shall be provided
at one space per 350 square feet of net floor area.
C. Parking structures within commercial and office sites shall
incorporate the following design features in order to soften
their visual impacts:
• The sides of parking structures open to public view shall
be textured and colored or faced with brick or other
material consistent with the structure's associated
buildings. Exposed, uncolored concrete sides shall be
avoided.
• Linear planters and /or trellises with shrubs and
cascading vines shall be provided along the outside of
parking levels visible from public roadways.
• For the two -level parking structure in Office Site B
nearest the intersection of MacArthur boulevard and
5
Jamboree Road, trees within planters and /or trellis
structures with trailing vines shall be provided within the
interior of the top parking level. Also, the finish grade of
the top level of this parking structure shall substantially
match and follow the pre - existing surface grade and shall
not extend more than two feet above the pre - existing
surface grade at any point.
In Office Site B, in order to ensure implementation of the
preceding design features, site, grading, landscape, and
architectural plans for both parking structures in that Site
shall be submitted by the developer to the Planning
Commission for review and approval prior to the
issuance of any building permits. These plans shall
conform to the preceding design requirements and the
applicable development agreement.
Site A [No changes]
2. Site B
Allowable Building Area: 1,201,349 net square feet (13)(16) (TBD)
Site Area: 43.703 acres (4X11)
a. Building Height
Two story development
Three story development
Four story development
Five story development
Six story development
Seven story development
Eight story development
Nine story development
Ten story development
Eleven story development
Twelve story development
b. Parking
3,719 cars
c. Landscaped Open Space
Two story development
Three story development
Four story development
Five story development
Six story development
Seven story development
Eight story development
Nine story development
Ten story development
Eleven story development
Land Coverage (16)(TBD)
13.93 acres
9.29 acres
6.97 acres
5.57 acres
4.64 acres
3.98 acres
3.48 acres
3.10 acres
2.79 acres
2.53 acres
2.32 acres
Land Coverage (11)(13)(16)(TBD)
19.35 acres
(11) Land Coverage (11)(13)(16)(TBD)
10.42 acres
15.06 acres
17.38 acres
18.78 acres
19.71 acres
20.37 acres
20.873 acres
21.25 acres
21.56 acres
21.82 acres
Group V
Twelve story development 22.03 acres
[No changes in remainder of Paragraph C]
Pages 21 -24:
RESTAURANTS (1)(4)
A. Building Sites
Maximum acreages for Site 2 shall not exceed 1.25 (18)
acres. Maximum acreage for Site 3: 1.765 acres. Maximum
acreages for Sites 4 and 5 shall not exceed 3.0 acres.
Maximum acreage for Sites 6 and 7 shall not exceed 2.2
acres. (8)
(The following acreages are for information only.)
Site 1 Deleted (see Group VII) (18)
Site 2 transferred to office use (TBD)
Site 3 1.765 acres
Site 4 1.50 acres
Site 5 1.50 acres
Site 6 1.50 acres (8)
Site 7 0.70 acres (8) 6.965 acres (TBD)
Site 1 Deleted see Group VII Private Club (18)
Site 3 located within Office Site "F". (4)
Sites 4 and 5 located within Office Site "B ". (4) (16) (TBD)
Sites 6 and 7 located within Office Site "G. (8)
Any portion or all of the restaurant, bar, theater /nightclub acreage for
Sites 4, 5, 6, or 7 not utilized for that purpose shall revert to
professional and business office use. Any portion or all of the
restaurant acreage for Site 3 not utilized for that purpose shall revert
to either professional and business office use or service station
use.(4)(8) (18)
The following statistics are for information only. Development may
include but shall not be limited to the following:
B. Building Area (4)
Site 3
10,000 sq. ft.
0.22 acres
Site 4
7,000 sq. ft.
0.16 acres
Site 5
7,000 sq. ft.
0.16 acres
Site 6 (8)
7,000 sq. ft.
0.16 acres
Site 7 (8)
3,000 sq. ft.
0.07 acres
Total:
34,000 sq. ft.
0.78 acres(8)(18)(TBD)
C. Parking
7
Q
E.
Criteria:
300 occupants /10,000 sq. ft.
1 space/3 occupants and 120 cars per acre.
Site 3
100 cars 0.84 acres
Site 4
70 cars 0.58 acres
Site 5
70 cars 0.58 acres
Site 6 (8)
70 cars 0.58 acres
Site 7 (8)
30 cars 0.25 acres
Total:
340 cars 2.83 acres(8K18)(TBD)
Landscaped Open Space (4)
Site 3
0.70 acres
Site 4
0.76 acres
Site 5
0.76 acres
Site 6 (8)
0.76 acres
Site 7 (8)
0.38 acres
Total:
3.36 acres (8)(18)(TBD)
Building Height
Building height of structures shall be limited to a height of thirty -five
(35) feet.
Group VI. RETAIL & SERVICE CENTER
/_\
A
C.
9
Building Sites (4) (5) (TBD)
Site 1: 5.026 acres
5.026 acres
Allowable Building Area (5) (TBD)
"Retail Site No.1 (sq. ft.) 102,110 sq. ft. (14)
[No changes in remainder of Paragraph B.]
Landscape Area (5)
Twenty -five (25) percent of the 5.026 acres constituting retail and
service center Site No. 1 shall be developed as landscape area.
If twenty -five (25) percent of the 5.026 acres constituting retail and
service center Site No. 1 is not developed as landscape area, a
specific site plan shall be submitted to the City of Newport Beach
Planning Commission for approval prior to the issuing of a building
permit.
Statistical Analysis (5)
The following statistics are for information only. Development may
include but shall not be limited to the following.
A
Assumed parking criteria: One (1) space per 200 square feet of net
building area at 120 cars per acre.
1. Site 1. [No change]
2. Site 2 (TBD)
E. Building Height
Building height of structures shall be limited to a height of
thirty-five (35) feet above mean existing grade as shown on
Exhibit "B". (5)
Page 52:
[in PART W, Add the following amendment footnote.]
(TBD) Planned Community Text revisions (Amendment No.905, adopted
Ordinance_) including the following changes:
a. Increase the allowable building area in Professional and Business Office
Site 'B"
by 237,500 net square feet.
b. Convert Restaurant Site 2 (5,000 net square feet) to professional and
business office use within Office Site "B ".
c. Convert Retail and Service Center Site 2 (10,000 net square feet) to
professional and business office use within Office Site "B ".
F:\users\cat\shared\da\Ordinance\KoliZoningClean.doc
E
July 17,2001
City Council of Newport Beach
3300 Newport Blvd.
Newport Beach CA 92660
Honorable Mayor and Members of the City Council:
RECEIVED
'01 JUL 18 A10.20
OFFICE OF THE CITY CLERK
CITY OF NEWPORT BEACH
The timing of the Koll expansion is all wrong. The City is in the process of updating the
General Plan and creating a Specific Area Plan for the airport area. This expansion
beyond the current General Plan should not be granted until these updates are completed.
The City is desperately trying to extend the caps on John Wayne Airport. It does not
make sense to , at the same time, approve a project of this magnitude in the airport area
which will increase demand for air travel from John Wayne Airport. What fodder for the
propangandists who want the expansion of JWA!
How can you figure fair share costs of a fire station until the SAP is completed showing
what development will be allowed? What traffic improvements do you intend to buy
with 3 '/3 million dollars? How much does a graded intersection cost? Traffic is already
congested at Jamboree/MacArthur, according to Mayor Adams. He said he had an idea
to alleviate the problem, but he did not share it with the public. Planning Director Patty
Temple stated that the project will result in unmitigated traffic problems, and EQAC
raised several questions about traffic and parking that have gone unanswered.
For all of these reaasons, I urge you to deny the Koll project without prejudice pending
completion of the SAP for the airport area.
Sincerely yours,
Elaine Linhoff
1760 E. Ocean Blvd.
Balboa CA 92661
o - -7
COIUINCIL AGENDA
ORDINANCE NO. 2001-11 r<,
IF
401
AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF NEWPORT BEACH APPROVING A
DEVELOPMENT AGREEMENT FOR KOLL
CENTER NEWPORT OFFICE SITE B
[DEVELOPMENT AGREEMENT NO. 161
WHEREAS, Koll Center Newport Number A ( "Developer"), 1900 Main Street,
Suite 350, Irvine, California, has applied to the City of Newport Beach ( "City ") for a
General Plan Amendment (GPA 97 -38)1 and a Planned Community Amendment for
"Office Site B" of the Koll Center Newport (KCN) Planned Community in order to allow
future additional development on Parcel 1 of PMB 114/22 -24 and Parcels 1, 2, and 7 of
PMB 181/13 -19; and
WHEREAS, the GPA 97 3(Bl pF paw4-�D e w would
increase the allowable building floor area of KCN Office Site B by 250,000 gross square
feet, to a maximum of 1,310,898 gross square feet; and
WHEREAS, a Development Agreement was prepared, attached hereto as Exhibit
"DA-l"; and
WHEREAS, the Development Agreement provides for certain rights, obligations,
and assurances on the parts of both the City and the Developer; and
WHEREAS, on August 3 and September 7, 2000 and June 7, 2001, the Planning
Commission held duly- noticed public hearings, and, at the conclusion of the hearing and
after considering the evidence and arguments submitted by the City staff, Developer, and
all interested. parties, adopted a resolution recommending that the City Council approve
the Development Agreement; and
WHEREAS, on June 26, 2001, the City Council held a public hearing and
considered the Development Agreement, the recommendation of the Planning
Commission, and the evidence and arguments submitted by the City staff, Developer, and
all interested parties A notice of time, place and purpose of the public hearing was duly
given and testimony was presented to and considered by the City Council at the public
hearing.
THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH DOES HEREBY
ORDAIN AS FOLLOWS:
SECTION 1: ENVIRONMENTAL REVIEW. Pursuant to CEQA and the
CEQA Guidelines, an Environmental Impact Report (EIR) has been prepared for the
project addressed by the Development Agreement. Subsequent to the preparation and
distribution of the Draft EIR for public review and comment, the City of Newport Beach
and the project applicant mutually agreed to enter into a Development Agreement for the
proposed project. The Development Agreement provides additional mitigation for project
impacts in the form of fees for road improvements and other items. Although this
discretionary action was not identified in the project description contained in the Draft
EIR, a review of its implications on the environmental analysis conclusively shows that
its implementation will not result in any additional significant impacts beyond those
ad F dressed in the Draft EIR, result in a substantial increase in the severity of any
significant impacts addressed in the Draft EIR, and/or require the incorporation of
additional mitigation measures. Therefore, the environmental analysis presented in the
Draft EIR adequately evaluated all of the potential impacts of project implementation,
including those related to the approval and implementation of the Development
Agreement. After reviewing the EIR, all comments received during the public review
process, and all responses to those comments, the City Council has certified the EIR as
complete, reflecting the independent judgment of the City of Newport Beach. All records
pertaining to preparation, review, and comment on the EIR are retained in the Planning
Department of the City of Newport Beach.
SECTION 2: DEVELOPMENT AGREEMENT.
a. The Development Agreement is, assuming voter approval of GPA 97 -3(B), consistent
with the objectives, policies, general land uses, and programs of the General Plan of
the City,' _ _ asseeimed geaeral
miaoi}E�.;i;d 981 iag raixEH�ac ,�.§48h p "'••:a.. &r land ass desigamiei s afid-
..tl,ef .. ..e..tS 344;..1. -- :..t....t .. «t1. the !_e..e.el Plan as ...i...7
b. The City Council hereby approves and adopts the Development Agreement, attached
hereto as Exhibit "DA -P. The Mayor is hereby authorized to execute the Agreement,
wand, assuming voter approval of GPA 97 -3B1
the City Clerk shall cause a copy thereof to be recorded with the Orange County
Recorder.
SECTION 3: The Mayor shall sign and the City Clerk shall attest to the passage
of this Ordinance. This Ordinance shall be published once in the official newspaper of
the City, and the same shall not become effective until the City Clerk certifies to the City
Council that the GPA 97 -3B1 has been approved by the electorate Pursuant to Section
423 of the City Charter *w'• I'm days ^4^.41,,. a^,^ ^f: +,. ^a^.,.:^.
This Ordinance was introduced at a regular meeting of the City Council of the City of
Newport Beach held on July lo, ffe-3- , 2001 and adopted on July 2414, 2001 by the J
following vote, to wit:
AYES, COUNCIL MEMBERS
NOES, COUNCIL MEMBERS
ABSENT COUNCIL MEMBERS
MAYOR
ATTEST:
CITY CLERK
ORDINANCE NO. 2001-12
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH APPROVING A ZONING
AMENDMENT INCREASING THE MAXIMUM
ALLOWABLE BUILDING SQUARE FOOTAGE IN OFFICE
SITE B OF THE KOLL CENTER NEWPORT PLANNED
COMMUNITY [ZONING AMENDMENT 9051
WHEREAS, Koll Center Newport Number A ( "Developer "), 1900 Main Street, Suite
350, Irvine, California, has applied to the City of Newport Beach ( "City') for a General Plan
Amendment (GPA 97 -3(B)) and a Zoning Amendment for "Office Site B" of the Koll Center
Newport (KCN) Planned Community in order to allow future additional development on Parcel 1
of PMB 114/22 -24 and Parcels 1, 2, and 7 of PMB 181/13 -19; and
WHEREAS, the proposed Amendment to the Koll Center Newport Planned Community
text would increase the maximum allowable building floor area in KCN Office Site B to a total
of 1,2bl,349 net square feet while eliminating restaurant and retail- service uses; and
WHEREAS, on August 3 and September 7, 2000 and June 7, 2001, the Planning
Commission held duly - noticed public hearings, and, at the conclusion of the hearing and after
considering the evidence and arguments submitted by the City staff, Developer, and all interested
parties, adopted a resolution recommending that the City Council approve the Zoning
Amendment; and
WHEREAS, on June 26, 2001, the City Council held a public hearing and considered the
Zoning Amendment, the recommendation of the Planning Commission, and the evidence and
arguments submitted by the City staff, Developer, and all interested parties a notice of time,
place and purpose of the public hearing was duly given and. testimony was presented to and
considered by the City Council at the public hearing.
THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH DOES HEREBY ORDAIN AS
FOLLOWS:
SECTION 1: ENVIRONMENTAL REVIEW. Pursuant to CEQA and the CEQA
Guidelines, an Environmental Impact Report (EIR) has been prepared for this project. After
reviewing the EIR, all comments received during the public review process, and all responses to
those comments, the City Council has certified the EIR as complete, reflecting the independent
judgment of the City of Newport Beach. All records pertaining to preparation, review, and
comment on the EIR are retained in the Planning Department of the City of Newport Beach.
SECTION 2: FINDINGS. The City Council finds as follows with regard to Zoning
Amendment 905:
1. The amendment is consistent with the General Plan assuming that GPA 97 -3(B) is
approved by the electorate pursuant Section 423 of the City Charter in that it provides
for an increase in square footage commensurate with that allowed by GPA 97 -3(B).
2. The internal consistency of the Planned Community text will be retained in that all
development square footages and open space acreages have been adjusted to retain
appropriate development and open space percentages.
SECTION 3: ZONING AMENDMENT.
1. The City Council hereby adopts, by reference, the CEQA - required "Statement of
Findings ", attached as Exhibit "EIR -1" to the resolution certifying the project
Environmental Impact Report (EIR). The Statement of Findings constitutes a set of
binding obligations effective upon this project approval. Pursuant to Section 15091 of
the State CEQA Guidelines, the Statement of Findings summarizes the impacts of the
project, the mitigation measures required to avoid or substantially lessen each of
those impacts, and the "substantial evidence in the record" supporting the finding of
each such impact which will be avoided or substantially lessened.
2. The City Council hereby adopts, by reference, the "Statement of Overriding
Considerations ", attached as Exhibit "EIR -2" to the resolution certifying the project
Environmental Impact Report. The EIR identifies certain environmental impacts of
the project which cannot be avoided or substantially lessened. The City Council has
balanced these significant adverse environmental impacts against environmental
benefits and other benefits resulting from approval of the proposed Project, which
are identified in the Statement of Overriding Considerations, and hereby finds that
the benefits override the identified adverse environmental impacts.
2
3. The City Council hereby adopts, by reference, the "Mitigation Monitoring and
Reporting Program" (MMRP), attached as Exhibit "EIR -3" to the resolution
certifying the project Environmental Impact Report, and directs that mitigation
measures be implemented in accordance with the MMRP.
4. In light of the preceding findings and actions, the City Council hereby approves
Zoning Amendment 905, consisting of the amendments to the Koll Center Newport
Planned Community Development Standards specified in Exhibit "ZA -1 ", attached
hereto, subject to the mitigation measures identified in the Environmental Impact
Report and listed in Exhibit "EIR -5" —as conditions of approval of the Zoning
Amendment, as stipulated in Exhibit "ZA -I ".
SECTION 4: The Mayor shall sign and the City Clerk shall attest to the passage of this
Ordinance. This Ordinance shall be published once in the official newspaper of the City, and the
Ordinance sage shall become effective upon certification by the City Clerk to the City Council
that C,PA 97 -3(B) has been approved by the electorate pursuant to Section 423 of the City
�eee��errf�ra :r�ss!��sz+e�rr.�rese:re!�
This Ordinance was introduced at a regular meeting of the City Council of the City of Newport
Beach held on July I One-24, 2001 and adopted on July L444,2001 by the following vote, to wit:
ATTEST:
AYES, COUNCIL MEMBERS
NOES, COUNCIL MEMBERS
ABSENT COUNCIL MEMBERS
3
MAYOR
Testimony on the proposed General Plan
amendment for the Koll Center
Greenlight
Philip L. Arst
Spokesperson
July 10, 2001
The Koll proposal to increase its building
entitlements by 15X should be rejected
• Adds 1700 auto trips a day contributing to
unsatisfactory and admittedly unmitigatable traffic
congestion, pollution
Creates more demand for airport usage/expansion
• Provides no real economic benefits — and exposes the city
to huge potential economic liabilities
The City Council should not sell off
resident's quality of life for $30 per resident
and a sweetheart deal for the developer!!
2
Why?
• grant developer a 15X entitlement increase so it can
increase traffic congestion?
• grant developer an up to $15M windfall?
• create one of the highest density building sites
in the City?
• rely upon the developers traffic analysis that is
outmoded by the City's own proposal to increase the
allowable passenger cap at John Wayne Airport?
• when the city is spending $1M for a General Plan
Update, permit the developer to gain a major
entitlement that may not be granted in the pending
General Plan Update when completed?
The City's fiscal analysis of developer's project
is badly skewed
Claimed $50,000 per year city net revenues at best $10,000
per year and more realistically a net loss of $10,000 per year
There is really no measurable financial benefit to the city!
Prolect analvsis done in constant vear 2000 dollars
Annual net revenues to city projected by Staff as $51,878
Correct methodology is in adlusted inflated dollars (Per NB standard re D. Kiff)
• Property Tax collections increase at average of 1.9 0/./year
• Cost of city services increases at CPI of 5%
• Cumulative 30 year* net revenues to city = $296,500
• Average annual net revenues to city = $9,900
It i� realistic to not expect needs for expanded government services, and /or
requirements in the future — Add an industry standard 10% contineency
• Average annual net revenues to city with industry standard 10% industry
contingency fee = <$9,500
•30 year analysis period based upon anecdotal evidence reflects foci that turnovers ojo)7ice
buildings are very much longer than residential property turnovers.
Why is Newport Beach charging Koll so much
less than the City of Irvine would?
• $2.45M contribution is still 17% less than charged by Irvine
• The city is giving Koll a development entitlement windfall that could
cost it up to $15M if it was building in the City of Irvine!
Charges (sq. fl.)
Newport
Irvine IBC
Development Fee
$8.00
$10.70
System Dev. (Planning)
$ 0.45
$0.96
TPO, Fair Share Fees
$1.46
0
Transfer Devel. Rights Fee
0
$0.23
Transfer Right Purchase(SM)•
0
so- $15M•-
TOTAL / sq. R.
$9.91
511.89 + so -$ISM
TOTAL
$2.45 M
$2.97M +$0-$15M
- i ramler uevetopmenI nights in Irvine Business Complex (IBC) must be purchased from current
pronercy owners in IBC. This is equivalent to buying their property entitlemena. Three purchases, while
private, arc analogous to outright purchase of sufficiently entitled land.
**The purchase price of commercial land will vary with market conditions. An estimate of comparable
land purchases prices is appr. 530/sgfl rimes 11.5 acres (Q FAR 0.5) equivalent land needed.
Regional Transportation charges arc deemed equal for both tides. 5
The Koll Project represents a potential loss and future
multi- million dollar liability to to the City!
City
Income
( +) $2.45 rot
+)
Project Payments to City
($30 per resident)
(
Annual income
$10,000 per year
costs
S1.7M city expenditure on McArthur /Jamboree that
(-) $1.7M
may be scrapped by future mitigation project (5.4a)
Costs of provision of storm drain hookups (DA 4.4)
Undefined City cost
Assumption by City of State/Federal Law
O to `Muhl - Millions^
unknown revenue loss
change risks of Project (DA 9.1)(12.3)
Liability
—�
Exempts future traffic fees/assessments for traffic
"x"% of $I5-20M for
mitigation caused by Projed_(DA 43) (Contributes to
McArthur /Jamboree plus
requirement for grade separation at Jamboree/
costs for mitigation of 3-4
McArthur and 3.4 other unsal intersections)
other intersections
City assumption of risks of conformance to DA if
Potential future liability
benefils/obligalionssssigned l0 3rd parties (DA 4.11)
unknown
Koll is exempt from future impact fees that may be
Some exclusions but
levied by the city
6
on all property owners (DA 4.6)
unknown revenue loss
The Koll Project receives preferential
treatment at taxpayer expense
Requires expeditious approval of
Unfair to homeowners/ small businesses
Koll's permit processing, ( 4.10(a,b) )
waiting for their permits to be processed
Required compliance with city laws,
Preferential treatment as all other
regulations, ordinances and
taxpayers have to conform beyond
resolutions is frozen at signing (1.7 c)
signing date
Exempts Koll from responsibility if
Koll can sell the project and is released
Koll assigns (sells) the project (8.3)
from certain liabilities under the DA
Exempts Koll from normal city
Over -rides existing laws (TPO) and is
commencement & completion time
unfair to those who have to conform to
limitations (4.7)
construction time limits (15.45.030)
Koll has no duty to build in a timely
Municipal Code (15.45.060) contem-
manner. Their cost of $2.45M in year
plates time limits in DA's so that
2000 dollars binds city Councils and
future City Councils are not bound and
City operations for 25 years (8.2)
can react to changed conditions
Exempts from DA any future sub-
Actions that are not consistent with the
divisions, resubdivisions, lot line
DA are exempted unduly benefiting Koll
adjustments, vacations, etc. (4.11)
Project contributes to significant long -range i.e.
year 2020 impacts at five main intersections and
adds 1% or more traffic to five others
MacArthur blvd/Jamboree Road (pm peak hour)
Irvine Ave/Mesa Drive (pm peak hour)
Jamboree Road/Bristol St. am & pm peak hours)
Jamboree Road /Campus Drive (pm peak hour0
- Jamboree road/I405 NB ramps (am peak hour)
Regarding: MacArthur BlvdJJamboree Road and Jamboree Road /Campus
Drive
"It is staffs opinion that these intersection impacts are significant and
unavoidable."
City sWffrepart Long Range rea]Tc Analysis
4
The Koll Proposal to expand its entitlement
by 15 times should be rejected
EIR/Traffic findings are that the Project contributes to significant irrepar-
able traffic and pollution and under State Law would ordinarily be denied.
The City is relying on a claim of "overriding considerations" to pass the
project. The only basis for this is money (530 /resident) paid by developer:
However the project is detrimental to:
Public Health: * Creates unmitigatatabie traffic congestion, pollution
Public Safety: * Slows response times of emergency vehicles
and hospital access
Public Welfare: * Encourages expansion of JWA Airport
* Provides little, if any, annual net revenues and exposes
city taxpayers to potential multi - million dollar liabilities
- Federal/State Law changes
- City Law changes
- Fully mitigating traffic congestion
The Koll GPA Proposal should be rejected (2)
Detriments to Public Welfare (cont'd)
• Piecemeal planning will lower resident's Quality of Life
• Initial economic benefits offset by costs of scrapping initial short term
improvements to McArthur /Jamboree intersection
* Charges developer 17% less than a similar project in the Irvine Business
Complex and grants them an equivalent of up to a $15M property
enhancement entitlement
* The City gives Koll Center unfair preferential treatment at the expense
of taxpayers and other business owners
No benefits to residents, only detriments!
The sum of all of these problems is that the project
proposal cannot be patched to be acceptable
10
The Koll proposal to increase its building
entitlements by 15X should be rejected
• Adds 1700 auto trips a day contributing to
unsatisfactory and admittedly unmitigatable traffic
congestion, pollution
• Creates more demand for airport usage /expansion
Provides no real economic benefits — and exposes the city
to huge potential economic liabilities
The City Council should not sell off
resident's quality of life for $30 per resident
and a sweetheart deal for the developer!!
A possible alternative to project rejection
Mindful of the $ IM General Plan Update effort that is currently
underway that:
- may include or exclude project
- will do a comprehensive analysis of the entire city
- will be subject to voter approval if found to meet voter messages
regarding traffic and retaining the environmental and residential
character of Newport Beach
Greenlight suggests a moratorium on all "For profit commercial
projects" requiring GPA's until the General Plan update is approved.
u
0
Swains Data Service
`"
875 a
949- 675 -5206 07, 2CC1 : J, '5:-- 9
"RECEIVED AFTER AGENDA
PRINTED :"
July 10, 2001
John S. and Mona L. Swain
308 Apolena Avenue
Balboa Island, CA 92662
(949)675 -5206
monaswain @aol.com
Dear Honorable Garold Adams and
Members of the Newport Beach City Council:
We believe you should re -think any vote in favor of the Koll project. If
you are against expansion of the Orange County Airport, yet vote to
allow large development in this area, this will only encourage more
flights and thus necessitate expansion of the airport.
Can you explain this contradiction of how you vote and your stance on
the airport?
Sincerely,
C3
nT
�T
T
john and Mona Swain
To
/V
m
m
'tic
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p
m
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s�
July 10, 2001
Agenda Item No. 7
ORDINANCE NO. 2001-11
(REVISED PER THE 6 -26 -01 COUNCIL MEETING)
AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF NEWPORT BEACH APPROVING A
DEVELOPMENT AGREEMENT FOR KOLL
CENTER NEWPORT OFFICE SITE B
[DEVELOPMENT AGREEMENT NO. 161
WHEREAS, Koll Center Newport Number A ( "Developer "), 1900 Main Street,
Suite 350, Irvine, Califomia, has applied to the City of Newport Beach ( "City ") for a
General Plan Amendment and a Planned Community Amendment for "Office Site B" of
the Koll Center Newport (KCN) Planned Community in order to allow future additional
development on Parcel 1 of PMB 114/22 -24 and Parcels 1, 2, and 7 of PMB 181/13 -19;
and
WHEREAS, the proposed General Plan Amendment would increase the
allowable building floor area of KCN Office Site B by 250,000 gross square feet, to a
maximum of 1,310,898 gross square feet; and
WHEREAS, a Development Agreement was prepared, attached hereto as Exhibit
"DA-l"; and
WHEREAS, the Development Agreement provides for certain rights, obligations,
and assurances on the parts of both the City and the Developer; and
WHEREAS, on August 3 and September 7, 2000 and June 7, 2001, the Planning
Commission held duly- noticed public hearings, and, at the conclusion of the hearing and
after considering the evidence and arguments submitted by the City staff, Developer, and
all interested parties, adopted a resolution recommending that the City Council approve
the Development Agreement; and
WHEREAS, on June 26, 2001, the City Council held a public hearing and
considered the Development Agreement, the recommendation of the Planning
Commission, and the evidence and arguments submitted by the City staff, Developer, and
all interested parties A notice of time, place and purpose of the public hearing was duly
given and testimony was presented to and considered by the City Council at the public
hearing.
E
THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH DOES HEREBY •
ORDAIN AS FOLLOWS:
SECTION 1: ENVIRONMENTAL REVIEW. Pursuant to CEQA and the
CEQA Guidelines, an Environmental Impact Report (EIR) has been prepared for the
project addressed by the Development Agreement. Subsequent to the preparation and
distribution of the Draft EIR for public review and comment, the City of Newport Beach
and the project applicant mutually agreed to enter into a Development Agreement for the
proposed project. The Development Agreement provides additional mitigation for project
impacts in the form of fees for road improvements and other items. Although this
discretionary action was not identified in the project description contained in the Draft
EIR, a review of its implications on the environmental analysis conclusively shows that
its implementation will not result in any additional significant impacts beyond those
addressed in the Draft EIR, result in a substantial increase in the severity of any
significant impacts addressed in the Draft EIR, and/or require the incorporation of
additional mitigation measures. Therefore, the environmental analysis presented in the
Draft EIR adequately evaluated all of the potential impacts of project implementation,
including those related to the approval and implementation of the Development
Agreement. After reviewing the EIR, all comments received during the public review
process, and all responses to those comments, the City Council has certified the EIR as
complete, reflecting the independent judgment of the City of Newport Beach. All records
pertaining to preparation, review, and comment on the EIR are retained in the Planning
Department of the City of Newport Beach.
SECTION 2: DEVELOPMENT AGREEMENT.
a. The Development Agreement is consistent with the objectives, policies, general land
uses, and programs of the General Plan of the City in that it supports and implements
the project and its associated General Plan Amendment and Zoning Amendment,
which provide for land use designations and other components which are consistent
with the General Plan, as amended.
0
2
b. The City Council hereby approves and adopts the Development Agreement, attached
hereto as Exhibit "DA -1 ". The Mayor is hereby authorized to execute the
Amendment and, following such execution, the City Clerk shall cause a copy thereof
to be recorded with the Orange County Recorder.
SECTION 3: The Mayor shall sign and the City Clerk shall attest to the passage
of this Ordinance. This Ordinance shall be published once in the official newspaper of
the City, and the same shall become effective thirty (30) days after the date of its
adoption.
This Ordinance was introduced at a regular meeting of the City Council of the City of
Newport Beach held on June 26, 2001 and adopted on July 10, 2001 by the following vote,
to wit:
ATTEST:
CITY CLERK
AYES, COUNCIL MEMBERS
NOES, COUNCIL MEMBERS
ABSENT COUNCIL MEMBERS
"N.W1
3
Recording Requested By and
When Recorded Return to:
City Clerk
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92660
DEVELOPMENT AGREEMENT
BETWEEN
THE CITY OF NEWPORT BEACH
AND
KOLL CENTER NEWPORT NUMBER A •
Approved July 109 2001
Ordinance No. 2001 -11
L_J
9 DEVELOPMENT AGREEMENT
9
This Development Agreement ( "Agreement ") is executed as of
2001, ( "Approval Date ") by and between the CITY OF NEWPORT BEACH ( "CITY "), and
KOLL CENTER NEWPORT NUMBER A ( "OWNER ").
1. RECITALS.
1.1 Property /Ownership Status. OWNER owns all of the real property
( "Property ") described on Exhibit "A" and depicted on Exhibit "B," consisting of
approximately five (5) acres.
1.2 Planning Status. The Property comprises a portion of Office Site B"
known as "Professional and Business Office Site B" of the Koll Center Newport
Planned Community, which is currently entitled with approximately one million
(1,000,000) square feet of office development.
1.3 Project. OWNER has asked CITY to approve a general plan amendment,
zoning amendment and related permits that would authorize the construction of
approximately two hundred and thirty -five thousand (235,000) square feet of additional
office use on the Property.
1.4 Hearings. The Newport Beach Planning Commission (Planning
Commission) and the Newport Beach City Council (City Council) have conducted all
required public hearings on the Project and certified an Environmental Impact Report for
the Project that is in full compliance with CEQA and the CEQA Guidelines. All of these
hearings were duly noticed in accordance with applicable provisions of State law and
the Newport Beach Municipal Code.
1.5 General Findings. The Planning Commission and City Council have
determined that the Project and all Project Approvals are consistent with all elements of
the Newport Beach General Plan, the Newport Beach Municipal Code, CEQA and the
CEQA Guidelines. The Project and all Project Approvals are also consistent with all
other relevant plans, policies, ordinances, resolutions and regulations of the CITY.
1.6 Affordable Housing. The CITY and OWNER have determined that the
Project does not constitute a residential development subject to the terms and
conditions of the CITY's Housing Element. Accordingly, no present or subsequently
enacted affordable housing requirement or housing in lieu fee shall be required of
OWNER.
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5
1.7 Purpose of Agreement. The purposes of this Agreement are as follows:
(a) To provide for the orderly completion of development of the
Property consistent with the Project Approvals, Project Conditions
and this Agreement.
(b) To provide the CITY and OWNER with certainty that the Project will
be developed and maintained as contemplated by the Project
Approvals, Project Conditions and the Development Plan.
(c) To provide assurance to OWNER that OWNER may proceed with
the Project, subject to compliance with Project Conditions, in
accordance with the laws, policies, rules, ordinances, resolutions
and regulations of the CITY in effect as of the Approval Date.
(d) To strengthen the public planning process, encourage private
participation in comprehensive planning, reduce the economic cost
of development, mitigate the impacts of development, and provide
public benefits in excess of those normally secured through the
planning process.
1.8 Authorization. This Agreement is authorized by, and is consistent with,
the provisions of §§ 65864 et seq. of the Government Code of the State of California,
and Chapter 15.45 of the Newport Beach Municipal Code.
1.9 Police Power. The City Council has determined that this Agreement:
(a) Is in the best interests of the health, safety and general welfare of
the CITY, its residents and the public;
(b) Was entered into pursuant to, and is a valid exercise of, the CITY's
police power; and
(c) Has been approved in accordance with the provisions of State and
local law that establish procedures for the approval of development
agreements.
1.10 City Ordinance. On June 26, 2001, after giving appropriate notice and
holding all appropriate public hearings, the City Council conducted the first reading of
Ordinance No. 2001 -11 authorizing the CITY to enter into this Agreement. The City
Council approved the Adopting Ordinance on July 20, 2001, after giving appropriate
notice and holding all appropriate public hearings. The Adopting Ordinance shall be
considered effective as specified in Section 8.1.
1.11 CEQA Review. The City Council has independently reviewed, approved
and certified the EIR for the Project. In so doing, the City Council determined, among
11M I S_71S YS1US E RSIPLNISHAR ED11 CITYCNL\2001 \0626 \da062601 cin.doc
0
other things, that the EIR was prepared in full compliance with CEQA and the CEQA
Guidelines. The City Council also adopted all feasible mitigation measures, made
appropriate findings and adopted a statement of overriding considerations with respect
to any significant effect that could not be mitigated to a level of insignificance. The City
Council also adopted a Mitigation Monitoring Program for the Project as required by
CEQA and the CEQA Guidelines.
2. DEFINITIONS.
2.1. "Adopting Ordinances" refers to:
(a) Ordinance No. 2001 -12 adopted by the City Council on July 10.
2001, approving Zoning Amendment No. 905;
(b) Ordinance No. 2001 -11 adopted by the City Council on July 10,
2001, approving this Agreement;
(c) Resolution No. 2001 -56 adopted by the City Council on June 26,
2001, approving GPA 97 -3(B);
(d) Resolution No. 2001 -55 adopted by the City Council on June 26,
2001, approving Traffic study No. 119 and making findings
pursuant to Chapter 15.40 of the Code;
(e) Resolution No. 2001 -54 adopted by the City Council on June 26,
2001, certifying the EIR as fully compliant with CEQA and the
CEQA Guidelines, adopting all feasible mitigation measures, and
containing the statement of overriding considerations.
2.2. "Agreement" refers to this Development Agreement.
2.3 "Annual Review" refers to the review of OWNER's and CITY's good faith
compliance with this Agreement, as set forth in Section 7.
2.4 "_Approval Date" means July 10, 2001, the date on which the City Council
approved the Adopting Ordinances.
2.5 "Assign" means all forms of use of the verb "assign" and the nouns
"assignment" and "Assignee" shall include all contexts of hypothecation, sales,
conveyances, transfers, leases, and assignments.
2.6 "CEQA" and the "CEQA Guidelines" refers to the California
Environmental Quality Act and the CEQA Guidelines promulgated by the Secretary of
Resources of the State of California.
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Fri
2.7 "CITY" refers to the City of Newport Beach, California.
2.8 "City Council" refers to the City Council of the CITY.
2.9 "Cure Period" refers to the period of time during which a Default may be
cured pursuant to Article 10.
2.10 "Day" or "days" refers to a calendar day, unless expressly stated to be a
business day.
2.11 "Default" refers to any material default, breach, or violation of the
provisions of this Agreement. A "CITY Default" refers to a Default by the CITY, while
an "OWNER Default" refers to a Default by OWNER.
2.12. "Develop" means all forms of use of the verb "develop" and the noun
"Development ", whether or not capitalized, means the improvement of the Property for
the purposes 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 buildings and structures; and the installation of landscaping and parking
facilities and improvements. "Develop" or "Development" also includes the
maintenance, repair, alteration, reconstruction or redevelopment of any building,
structure, improvement, landscaping or facility after the initial construction and
completion so long as consistent with the Project Approvals, the Development Plan and .
this Agreement. "Develop" or "Development" also includes the use of the Property in a
manner consistent with the permitted general, primary, and secondary uses as set forth
in the PC Text and the Development Plan.
2.13. "Development Plan" means and constitutes the plan for the development
of the Property, as embodied and stated in the Project Approvals, Project Conditions
and this Agreement.
2.14. "Effective Date" shall be the date this Agreement becomes effective as
specified in Section 8.1.
2.15. "EIR" refers to Environmental Impact Report 158 (State Clearinghouse
No. 99091126)—p re pared for the Project and certified as fully compliant with CEQA and
the CEQA Guidelines by the CITY Council on the Approval Date.
2.16. "Estoppel Certificate" refers to the document certifying the status of this
Agreement required by Section 7.4.
2.17. "Exhibit" refers to an Exhibit to this Agreement. All Exhibits are
incorporated as a substantive part of this Agreement. The Exhibits to this Agreement
are as follows:
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•
11
LJ
Exhibit: Description:
A Legal Description of the Property
B Map depicting the Property
C Project Approvals comprising the Development Plan
D List of Project Conditions
2.18.. "Existing General Regulations" means those General Regulations
approved by the CITY on or before the Approval Date (irrespective of their Effective
Date) and not rescinded or superseded by CITY action taken on or before the Approval
Date.
2.19. "Future General Regulations" means those General Regulations
adopted or approved by the CITY in any way, after the Approval Date.
2.20. "General Plan" refers to the CITY's General Plan in effect on the
Approval Date, plus all amendments to the General Plan adopted by the CITY on or
before the Approval Date as part of the Project Approvals, Project Conditions or the
Development Plan.
2.21. "General Plan Amendment" or "GPA" means General Plan Amendment
97 -3(B) amending the General Plan of the CITY as approved by the City Council on
June 26, 2001 if and when approved by the voters pursuant to Section 423 of the City
Charter.
2.22. "General Regulations" means all laws, ordinances, resolutions, codes,
rules, regulations and official policies of CITY governing the development and permitted
uses of land, including, without limitation, the permitted use of land, the density or
intensity of use, subdivision requirements, the maximum height and size of proposed
buildings, the provisions for reservation or dedication of land for public purposes, and
the design, improvement and construction standards and specifications applicable to
the development of the Property and provisions relating to applicable fees, charges,
assessments and levies. The foregoing includes the Traffic Phasing Ordinance (TPO),
the Fair Share Traffic Contribution Fee Ordinance (Fair Share Ordinance) and water
and sewer connection fee ordinances. General Regulations do not include any CITY
ordinance, resolution, code, rule, regulation or official policy identified in or governing
the following ( "Governmental Exceptions "):
(a) The provisions of Titles 1, 3, 5, 6, 7, 9, 10, 11, 12, 13, 14, 15
(except Chapters 15.38 and 15.40) and of the Newport Beach
Municipal Code;
(b) Property taxes and assessments;
(c) The control and abatement of Nuisances (subject to the provisions
of Section 3.4);
\ \MIS_1 \SYS \USERS \PLN \SHARED \1 CITYCNL\2001 \0626 \da062601cin.doc
(d) The exercise of the power of eminent domain;
(e) The provision of, or charges for, water, sewer, refuse, police, fire
and other municipal services that are generally applicable to all
owners or lessees of commercial property in the CITY; and
(f) The manner in which property is used that are related to the
amount and time of noise from permitted activities, the use of
alcohol, and the nature and timing of special events.
2.23. "Governmental Reservations" refers to those actions that CITY may
take that may affect the Project or the operation of the Project, as follows:
(a) Enforcement of the specific provisions, limitations and restrictions
contained in the Project, Project Approvals, Development Plan and
Project Conditions;
(b) Enforcement of the provisions and conditions of this Agreement;
(c) Enforcement of, or pursuant to, Governmental Exceptions or
Governmental Reservations; and
(d) Enforcement of Existing General Regulations
2.24. "Include" and all contexts and forms of the words "includes" and
"including" shall be interpreted to also state "but not limited to."
2.25. "OWNER" refers to Koll Center Newport Number A, a California general
partnership.
2.26. "Mortgagee" refers to the holder of a beneficial interest under any
mortgage, deed of trust, sale - leaseback agreement, or other transaction under which all
or a portion of OWNER's interest in the Property is used as security.
2.27. "Notice" refers to any written notice or demand between the Parties
required or permitted by this Agreement.
2.28. "Parties" refers to the CITY and OWNER and a "Party" refers to the CITY
or OWNER.
2.29. "PC Text" refers to the "Koll Center Newport Planned Community
Development Plan" as amended by the City Council on the Approval date and any
subsequent modification of the PC Text with respect to the Property that are approved
by the City Council and to which OWNER consents. Except for the modifications
expressly permitted by the terms of this Agreement, OWNER shall be under no
obligation to consent to modifications of the PC Text
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/0
2.30. "Planning Commission" refers to the Planning Commission of the CITY.
2.31. " Project" refers to the existing and proposed development of the Property
pursuant to, and consistent with the Project Approvals, consistent with and subject to
Project Conditions, and as described in the Development Plan. The Project includes
those improvements existing on the Property as of the Approval Date.
2.32. "Project Approvals" refers to all approvals, amendments, permits,
licenses, consents, rights and privileges, and other actions required or authorized to be
approved, issued or taken by CITY in connection with development of the Property,
including but not limited to the following discretionary actions:
(a) General Plan Amendment No. 97 -3(B);
(b) Zoning Code Amendment No. 905 (Koll Center Newport Planned
Community Development Plan);
(c) Traffic Study No. 119; and
(d) Environmental Impact Report No. 158 (State Clearinghouse No.
99091120).
• Project Approvals also means any grants of easements, vacations, subdivisions,
resubdivisions, lot line adjustments or other actions necessary to the implementation of
the Project. Project Approvals also include any and all discretionary or ministerial
permits related to construction of the Project including grading permits, building permits,
and occupancy permits.
0
2.33. "Project Conditions" means all conditions to OWNER's right to proceed
with Development pursuant to the Project Approvals, including the provisions of this
Agreement, the PC Text, the mitigation measures identified in the EIR and adopted by
the City Council, conditions to approval of the Traffic Study, conditions to Project
Approvals, Existing General Regulations and Governmental Reservations. The Project
Conditions are generally described in Exhibit D. The term Project Conditions does not
included the requirement for voter approval pursuant to Section 423 of the City Charter.
2.34. "Property" refers to the real property described on Exhibit "A" and
depicted on Exhibit "B ".
2.35. "Subsequent Development Permits" means all Project Approvals
granted or issued by the CITY subsequent to the Approval Date in connection with
development of the Property.
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2.36. "Vested Entitlement" or "Entitlement" refers to the development rights
granted OWNER pursuant to this Agreement and the Project Approvals that are subject
to Project Conditions.
3. DEVELOPMENT OF THE PROPERTY
3.1 Development Program. Upon the Effective Date, this Agreement vests
OWNER's right to proceed with the development described in the Project Approvals and
Development Plan. OWNER acknowledges that its right to proceed with the Vested'
Entitlement is subject to the Project Conditions. OWNER acknowledges that City grants
no assurance that OWNER will receive necessary permits or approvals from any other
public agency with jurisdiction over the Project or that Project Approvals will not be
subject to and affected by legal or other challenges or procedures initiated by third
parties.
(a) Permitted Uses. The Property shall be used and developed only
in the manner provided in the Project Approvals and the
Development Plan. CITY acknowledges that, from time to time,
OWNER may seek and obtain, in accordance with applicable
provisions of State and local law, minor amendments to the
Development Plan and the Project Approvals. The Planning
Director of the CITY ( "Planning Director") shall determine, subject
to appeal by OWNER to the Planning Commission, whether a
proposed amendment is a "minor amendment" for purposes of this
Agreement. A minor amendment is one that does not increase
vehicular trips or other environmental impacts associated with
Project Approvals or the Development Plan.
(b) Permitted Density of Development. OWNER shall have the
vested right to develop the Property and receive the CITY's
approval of all Project Approvals consistent with the permitted
density and level of intensity authorized by the Project Approvals
and as described in the Development Plan. The CITY shall not
impose any condition on any Project Approval that reduces the
permitted density and level of intensity allowed in the Development
Plan and discretionary Project Approvals. CITY acknowledges that
the boundaries of the parcels shown on the Development Plan and
the Project Approvals are approximate and are subject to minor
variation prior to recordation of final map(s) for the Project, provided
OWNER complies with the applicable procedures for subdivision
maps. CITY may impose standard conditions of approval on any
subdivision or resubdivision requested by OWNER so long as the
condition(s) do not reduce the permitted density or intensity, or
substantially increase the cost of the development, allowed in the
Project Approvals and described in the Development Plan. 9
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(c) Maximum Height and Size of Structures. OWNER shall have the
vested right to develop the Property with the maximum height and
size of structures as set forth in the Development Plan and the
Project Approvals.
3.2 . Compliance with Project Conditions. OWNER acknowledges that City
Council approval of the Project Approvals, the Development Plan and this Agreement is
subject to compliance with the Project Conditions. The Project Conditions are, among
other things, designed to minimize or eliminate any adverse impacts of the Project and
protect and enhance the environment. In certain instances, the Project Conditions
exceed those that might otherwise be appropriate under "nexus" and "rough
proportionality" tests recently articulated by the courts. By entering into this Agreement,
OWNER agrees to be bound by, and waives any protest of, any Project Conditions.
Any Project Conditions imposed by the CITY after the Effective Date shall be consistent
with the Project Approvals, Development Plan and this Agreement. Owner also agrees
to abide by any conditions or modifications to the design of the Project resulting from
Project Conditions that authorize review by the City subsequent to the Approval Date.
3.3 Compliance with General Regulations. OWNER shall comply with the
Existing General Regulations. Except as otherwise specified in this Agreement,
OWNER shall not be obligated to comply with any Future General Regulations that are
in conflict with the Development Plan or this Agreement. Any Future General
i Regulation(s) that are inconsistent with this Agreement and/or the Development Plan
! and which do not fall within the definition of Governmental Reservations or
Governmental Exceptions shall not be applicable to the development or use of the
Property. With respect to Existing General Regulations that require the payment of
fees, costs, and expenses, the applicable fee, cost, or expense shall be that in effect
on the Approval Date subject to any automatic increases or decreases mandated by
the text of the Existing General Regulation as of the Approval Date. OWNER shall,
however, comply with: (a) any Future General Regulation that does not impair or affect
its ability to develop the Property in accordance with the Development Plan or increase
OWNER's cost or cause delays in timing. OWNER shall also comply with all provisions
of the Uniform Codes for building, fire, plumbing, mechanical and electrical, whether
adopted before or after the Approval Date by the CITY, which are in effect at the time
applications for specific Project Approvals are submitted.
3.4 Public Health and Safety /Uniform Codes. This Agreement shall not
prevent the CITY from adopting, and applying to the Project, Future General
Regulations, including Uniform Codes (as referred to above), that are based on
recommendations of a multi -state professional organization relating to the specifications
for the constructions of improvements ( "Building Codes ") and become applicable
throughout CITY. This Agreement shall not prevent the CITY from adopting, and
applying to the Project, conditions inconsistent with the Development Plan or Project
Approvals, when the conditions are adopted by the City Council after a noticed public
0 hearing and pursuant to a determination by the City Council that the conditions are
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necessary to abate a public nuisance (Nuisance). In no event shall the CITY impose
any condition pursuant to a determination of Nuisance unless the OWNER has been
given notice of, and the right to present evidence at, a public hearing. Any
determination of Nuisance, and the rational relationship between the Nuisance and the
conditions imposed, must be supported by substantial evidence in the record of the
hearing.
4. BENEFITS TO OWNER.
4.1 Right to Develop. Upon the Effective Date and during the term of this
Agreement, OWNER shall have a vested right to develop, and receive building and
occupancy permits for construction on, the Property to the full extent permitted by the
Project Approvals and the Development Plan subject to the Project Conditions. CITY
shall only take action with respect to the Property that complies and is consistent with
the Project Approvals and the Development Plan unless OWNER gives its written
consent to the action or CITY is permitted to take the action pursuant to this Agreement.
OWNER may refuse to grant consent in OWNER's sole and absolute discretion. CITY
shall not impose or increase any condition or requirement (whether in the form of a fee,
tax, requirement for dedication or reservation of and, or any other type of exaction) on
the Project, except as expressly permitted by this Agreement, Existing General
Regulations, Governmental Reservations or Governmental Exceptions. However, CITY
may impose or increase a condition or requirement when such action is required (as
opposed to permitted) by State or federal law and then only to the minimum extent and
duration necessary to comply with State or federal law. Except as otherwise provided
by this Agreement, the ordinances, plans, resolutions, and policies governing the
permitted use and development of the Property shall be those described in the Project
Approvals and the Development Plan.
4.2 Reservations or Dedications of Land. No dedication or reservation of
any portion of the Property shall be required of OWNER in conjunction with the
application or issuance of any Project Approval except as may be provided in the
Project Approvals, Project Conditions, Development Plan or this Agreement.
4.3 No Additional Traffic Related Fees or Conditions. OWNER's
satisfaction of the provisions of Article 5 shall be deemed full compliance with all
Existing General Regulations, Future General Regulations and CEQA relative to traffic
impacts or traffic fees. Except as provided in Article 5, CITY shall not impose or
increase the amount of any traffic - related fee, charge, dedication, or improvement
relative to, or as a condition to, development of the Project.
4.4 Storm Drain. The CITY shall provide storm drain capacity to the exterior
boundaries of the Property to the extent, and subject to the same conditions, that
capacity is provided to similarly situated commercial property in the CITY. OWNER
agrees to accept, during the term of this Agreement, all storm drain inflow from facilities
in place as of the Effective Date.
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4.5 Park Fees. OWNER and CITY acknowledge that the Project may
generate some incidental demand for, and usage of, park and open space land within
the CITY but that the Project is exempt from the Park Dedication Ordinance (Chapter
19.50 of the Newport Beach Municipal Code) and any Existing General Regulation
relating to the dedication of land for park or open space purposes or the payment of
park or open space fees.
4.6 Future Impact Fees, Conditions, and Exactions. So long as OWNER is
not in default under this Agreement, CITY will not impose, or increase the amount of,
any impact fee, condition, mitigation measure, or exaction other than as expressly
required by the Project Approvals, Project Conditions, Existing General Regulations, the
Development Plan, or this Agreement. CITY shall not, without the written consent of
OWNER, form, or cause the formation of, any new governmental entity for the purpose
of imposing fees, conditions or exactions the CITY could not directly impose pursuant to
this Section. CITY may form or cause the formation of an assessment district (or similar
vehicle) comprised of the Property and other property in the area for the purpose of
funding public improvements that provide a special benefit to the Property. However,
CITY may not include the Property in any assessment district formed to fund
construction of public improvements that CITY is prohibited from imposing on OWNER
because of this Agreement.
4.7 Time for Construction and Completion of Proiect. OWNER shall have
the right to develop the Project in the manner and at the time that OWNER deems
appropriate in the exercise of its business judgment. The Parties acknowledge that
OWNER cannot predict the timing of the development of the Project because of
numerous factors not within the control of OWNER, such as market demand, economic
conditions, interest rates and competition. Subject to compliance with the provisions of
this Agreement and Project Conditions, OWNER shall, at any time during the term of
this Agreement, be entitled to apply for, and receive, Project Approvals consistent with
the Development Plan.
4.8 Development Standards. Because the Development Plan has been
prepared to meet the unique design parameters of this Project, the City Council has
determined that rigid consistency with the Existing General Regulations and Future
General Regulations is neither necessary nor appropriate. The terms and provisions of
the Project Approvals, Development Plan or this Agreement shall prevail in the event of
any conflict with Existing General Regulations or Future General Regulations.
4.9 Tentative Maps.
(a) Improvement Security. As a condition of approving a final
subdivision map or any future resubdivision for all or a portion of
the Property, the CITY may require the furnishing of appropriate
and reasonable improvement agreements and security pursuant to
the Municipal Code and the Subdivision Map Act. Nothing in this
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Agreement shall be construed as altering or relieving OWNER of
any obligation imposed pursuant to the Municipal Code or the
Subdivision Map Act. The improvement requirements, exactions or
other conditions of approval of a subdivision map, parcel map or lot
line adjustment shall be consistent with this Agreement but CITY
may impose standard conditions of approval generally applicable to
similar projects subject to the provisions Section 3.1(b).
(b) Expiration. Any current or future tentative maps for resubdivision
of the Property shall expire concurrently with the termination of this'
Agreement or after the maximum period for the expiration of
tentative maps authorized by Government Code § 66452.6,
whichever is later. Should the time periods authorized by
Government Code § 66452.6 be lengthened after the execution of
this Agreement, OWNER shall be entitled to further extensions of
any tentative subdivision map applicable to the Property, to the
maximum extent authorized by law.
(c) Resubdivisions. The Parties acknowledge that resubdivisions, lot
line adjustments, or similar modifications may be necessary to
develop the Project and are contemplated by this Agreement.
These modifications or adjustments shall be approved provided
they are in substantial conformance with the Development Plan and
the Project Approvals. 0
4.10 Processing and Issuance of Permits.
(a) Processing of Permits. As a material term of this Agreement
benefiting OWNER, the CITY shall promptly accept for
processing /review, and expeditiously approve, permit applications
for the development and use of the Property that are in substantial
conformance with the Project Approvals, Development Plan,
Existing General Regulations, and this Agreement.
(b) Issuance of Ministerial Project Approvals. CITY shall issue to
OWNER all necessary use, building, occupancy, and other permits
and approvals upon request, provided that applications are
submitted in accordance with the Existing General Regulations and
are in substantial conformance with the Project Approvals,
Development Plan and this Agreement.
(c) Vesting of Project Approvals. Any permit, license or approval
issued pursuant to this Agreement shall be vested and deemed a
Project Approval when granted.
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• 4.11 Future Approvals. The future approval or issuance of any Project
Approval that is consistent with the Development Plan, including any permit, license or
authorization to proceed, subdivisions, resubdivisions, lot line adjustments, vacations
and similar actions shall not require an amendment of this Agreement.
S. PUBLIC IMPROVEMENTS
5.1 Regional Transportation Facilities Fees. OWNER acknowledges that
CITY is bound by provisions of ordinances, agreements, rules and regulations related to
the financing, construction and operation of major transportation improvements that
benefit large areas of Orange County including the Property. OWNER shall comply with
the provisions of all such ordinances, agreements, rules and regulations, including the
payment of fees required by the San Joaquin Hills Transportation Corridor Joint Powers
Agreement and /or the Transportation Corridor Agency (collectively, the `TCA ").
OWNER acknowledges that it is required to comply with Chapter 15.42 of the Newport
Beach Municipal Code. OWNER shall have the right to appeal or contest the imposition
and /or amount of fees through any procedure adopted or used by the TCA for that
purpose. OWNER shall also have the right to commence litigation relative to the
amount, method of calculating or timing of any fees or the procedure utilized by the TCA
or other agency to resolve disputes relative to fees. OWNER shall hold CITY harmless
with respect to any loss, damage claim or liability arising out of any litigation
commenced by OWNER that is related to this Section. OWNER agrees that satisfaction
of the provisions of this Section is a condition to any discretionary or ministerial Project
Approval. CITY shall not be required to issue any discretionary or ministerial Project
• Approval until OWNER provides proof that all fees required to be paid to the TCA,
whether pursuant to ordinance, settlement or judgment, have been paid.
5.2 Fair Share Traffic Fees. OWNER shall pay two hundred and thirty -five
thousand, five hundred and seventy dollars ($235,570) in fees required pursuant to
Chapter 15.38 of the Code (Project Fair Share Fees). The Project Fair Share Fees are
based on the one thousand seven hundred and seventy (1770) additional average daily
trips generated by the Project multiplied by the current per trip fee of one hundred thirty
three dollars and nine cents ($133.09). The Project Fair Share Fees shall be paid at the
time specified in Chapter 15.38 of the Code.
5.3 TPO Improvements. OWNER shall contribute funds to be used by CITY
for the construction of the circulation system improvements identified in Traffic Study
119 (TPO Improvements). OWNER's contributions to the funding of the TPO
Improvements equal or exceed the requirements of the TPO and OWNER's
contributions to the funding of the TPO Improvements is in addition to all other fees,
charges or contributions required by this Agreement and /or existing General
Regulations. OWNER's contribution to the TPO Improvements shall be the sum of
seventy thousand dollars ($70,000) to fund construction of a second northbound
(MacArthur) left turn lane, the construction of a second southbound (MacArthur) left turn
lane and the construction of a second northbound (MacArthur) right turn lane at the
MacArthur /Jamboree intersection (MacArthur Project). City has prepared preliminary
. plans, specifications and cost estimates for the MacArthur Project. The MacArthur
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Project fully mitigates the impacts of Project trips at the MacArthur /Jamboree .
intersection as required by the TPO. The MacArthur Project is anticipated to cost one
million seven hundred and sixty thousand dollars ($1,760,000). OWNER's contribution
to the MacArthur Project represents four percent (4 %) of the cost of the TPO
improvements and has been calculated as specified in the TPO. CITY agrees to
provide any supplemental funds necessary to ensure that construction of the MacArthur
Project is complete no later than one year after occupancy of any development
authorized by the Project Approvals.
5.4 Long Range Traffic Improvements.
(a) Introduction. The EIR evaluated the "long term" impacts of the
Project on major intersections in Newport Beach and Irvine (Long -range
Analysis). The Long -range Analysis assumed construction of all
entitlement and all circulation system improvements authorized in the
Land Use and Circulation Elements of the Newport Beach General Plan
(including the TPO Improvements). The Long -range Analysis also
assumed the construction of entitlement and circulation system
improvements contemplated for the year 2020 in the Land Use and
Circulation Elements of the Irvine General Plan. The Long- range
Analysis concluded that the Project would, depending on the construction
of the J5 Ramp, have significant long -range adverse traffic impacts on four
(4) or five (5) major intersections. The potential cost of mitigating the long -
range impacts of the Project on intersections in the airport area could be .
significant. For example, mitigation of the impact of Project trips on
service levels may require the construction of a grade separation and
access ramps at the MacArthur /Jamboree intersection. The CITY has
prepared conceptual plans for a grade separation at the
Jamboree /MacArthur intersection and very preliminary cost estimates
indicate that improvement costs, exclusive of right -of -way could be in the
range of fifteen million dollars ($15,000,000) to twenty million dollars
($20,000,000). Moreover, the approval of the Project will result in an
increase in average daily trips in the vicinity of the Project that may require
other property owners to make improvements pursuant to the TPO that
would not be necessary but for the Project.
(b) OWNER Commitments. OWNER agrees to do the following:
(i) Pay the CITY, within sixty (60) days after the Effective Date,
forty -five cents ($45) per square foot of additional entitlement
granted pursuant to the Project Approvals to be used by the CITY
solely for the purpose of funding a Planning Study for the Airport
Area.
(ii) Pay the CITY the sum of eight dollars ($8.00) per square
foot of additional entitlement authorized by the Project Approvals •
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(Mitigation Fee). In the event a building permit is not issued within
twelve (12) months after the Effective Date, the amount of the
Mitigation Fee shall be increased by fifty cents ($.50) every twelve
months after the Effective Date.
(c) Payment. OWNER shall pay the Mitigation Fee prior to the
issuance of any building permit for the Project.
(d) Compliance. OWNER's compliance with the provisions of this
Section shall relieve OWNER of any obligation to participate in any
circulation system funding program developed and implemented by the
CITY including a specific area plan or major thoroughfare program for the
airport area. OWNER's compliance with the provisions of this Article shall
constitute full and complete satisfaction of any obligation to make or fund,
in whole or in part, any CITY circulation system improvement as a
condition to development of the Project.
5.5 Fire Station Fee. The EIR concludes that fire suppression service to the
Project will not meet CITY response time standards in the event of the closure of OCFA
Station 27. CITY has conducted studies of fire service needs in the airport area and
options for providing fire suppression and paramedic services consistent with CITY
standards. The options for providing fire suppression and paramedic services include
the construction, equipping and staffing a new fire station in the airport area or
• immediately south of Bristol Street in Santa Ana Heights (New Fire Station). The
current estimated cost of constructing and equipping a New Fire Station is two million
dollars ($2,000,000). OWNER shall pay CITY a fire suppression impact fee (FSIF) of
sixty thousand dollars ($60,000) to be used solely to fund the acquisition of a fire station
site, the construction of the New Fire Station, and /or the equipping /staffing of the
station. OWNER shall pay the FSIF within ten (10) days after obtaining any permit for
grading or construction on the Property pursuant to this Agreement. Payment of the
FSIF shall fully discharge OWNER from any obligation to pay any fee pursuant to fire
suppression facility impact fee program (Program) for area served by the New Fire
Station.
5.6 Circulation Study. Prior to the issuance of a building permit, OWNER
shall prepare a study to evaluate the adequacy of on -site circulation and the impact of
that circulation and vehicle ingress and egress on traffic flow on or through adjacent
roadways and intersections. The study shall be conducted under the direction, and to
the satisfaction, of the Transportation and Development Services Manager. OWNER
shall, at OWNER's sole cost and prior to occupancy, incorporate all feasible study
recommendations relative to ensuring adequate on -site circulation. OWNER shall also,
at OWNER's sole cost and prior to occupancy, make all feasible improvements to
mitigate any significant impact of vehicle stacking on traffic flow on or through adjacent
roadways or intersections.
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6. SPECIAL PROVISIONS •
6.1 Sales Tax Principles. OWNER has the right, pursuant to the Bradley
Bums Uniform Local Sales and Use Tax Law (Tax Law) to make a direct sales or use
tax (Tax) payment through a `direct pay permit" for certain purchases, leases and sales
(Eligible Transactions). CITY receives substantially more Tax from OWNER if OWNER
directly pays the Tax on all Eligible Transactions.
6.2 Tax Program. OWNER shall, within thirty (30) days after the Effective
Date, prepare, and submit to the Revenue Manager of CITY for approval, a Sales and'
Use Tax Program (Program) that, at a minimum, has the following components:
(a) OWNER's commitment to, during the term of this Agreement,
maintain a direct pay permit or similar authorization to directly pay Tax on
all Eligible Transactions;
(b) procedures that Owner will implement to maximize the amount of
Tax paid to the City with respect to construction of the Project.
(c) procedures pursuant to which OWNER will provide City with
information identifying all buyers and sellers with whom OWNER and /or
OWNER's contractors do business.
The Program shall also contain other information relevant to OWNER's compliance with
the terms and conditions of this Agreement pertaining to the direct payment of Tax.
OWNER shall, within thirty (30) days after the Effective Date, submit the Program to the
Revenue Manager of CITY for approval. OWNER shall modify the Program in
accordance with any and all reasonable recommendations of the Revenue Manager
that are consistent with the intent of this Section. OWNER shall, during the term of this
Agreement, fully implement the Program approved by the Revenue Manager.
7. ANNUAL REVIEW.
7.1 CITY and OWNER Responsibilities. Each Party shall review the other
Party's good faith substantial compliance with this Agreement once each year (the
"Annual Review "). As part of the Annual Review, OWNER shall submit to CITY an
annual review statement describing its actions in compliance with this Agreement and
the Development Plan.
7.2 Procedure. In connection with the Annual Review, each Party shall have
a reasonable opportunity to advise the other of alleged or potential breaches of this
Agreement or the Development Plan, to explain the basis for that Party's position, and
to receive from the other Party a statement of its position. A Party may issue a written
"Notice of Non - Compliance" specifying the factual basis for the notice if, on the basis of
the Annual Review, that Party concludes that the other Party has not complied in good
faith with the terms of this Agreement or the Development Plan. The Party receiving a
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Notice of Non - Compliance shall have thirty (30) days to respond in writing. If a Notice
of Non - Compliance is contested, the Parties shall have up to sixty (60) days to arrive at
a mutually acceptable resolution of the matter(s) occasioning the Notice. In the event
that the Parties are not able to arrive at a mutually acceptable resolution of the matter(s)
by the end of the sixty (60) day period, the Party alleging the non - compliance may
pursue the remedies provided in this Agreement.
7.3 Mitigation Monitoring. The Annual Review shall include an analysis of
compliance with the various conditions and mitigation measures related to the Project.
7.4 Estoppel Certificate. Either Party may at any time deliver written Notice
to the other Party requesting an estoppel certificate (the "Estoppel Certificate ") stating:
(a) The Agreement is in full force and effect and is a binding obligation
of the Parties.
(b) The Agreement has not been amended or modified either orally or
in writing or, if amended, identifying the amendments.
(c) To the best of the signing Party's knowledge, no Default in the
performance of the requesting Party's obligations under the Agreement
exists or, if a Default does exist, the nature of the Default.
A Party receiving a request for an Estoppel Certificate shall provide a signed certificate
to the requesting Party within thirty (30) days after receipt of the request. The City
Manager may sign an Estoppel Certificate on behalf of the CITY.
7.5 Failure to Conduct Annual Review. The failure to conduct an Annual
Review shall not constitute a Default of either Party or be asserted as a Default by
either Party.
8. GENERAL PROVISIONS
8.1 Effective Date. This Agreement shall bind the Parties as of the Approval
Date subject to the Adopting Ordinance becoming effective. The Parties acknowledge
and agree that none of the Project Approvals becomes effective unless the voters
approve GPA 97 -3(B) pursuant to the provisions of Section 423 of the City Charter. The
Adopting Ordinances shall be deemed effective when and if the City Clerk certifies to
the City Council the results of any election conducted pursuant to Section 423 of the
City Charter.
8.2 Term of Agreement. The term of this Agreement (the "Term ") shall begin
on the Effective Date and continue for a term of twenty -five (25) years unless otherwise
terminated or modified pursuant to this Agreement, or extended pursuant to the
provisions and conditions of Section 11.
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8.3 Assignment. OWNER has the absolute right to assign its rights and /or
delegate its obligations under this Agreement and the Development Plan as part of an
assignment of all or a portion of the Property. Any assignment shall be subject to the
provisions of this Agreement. As long as OWNER owns /leases any part of the
Property, OWNER may (at its election) assign the benefits of this Agreement without
delegating the obligations for the portion of the Property assigned. If that occurs,
however, the benefits assigned shall remain subject to the performance by OWNER of
the corresponding obligations. Upon any assignment of all or a portion of the Property,
OWNER shall be released from all obligations under this Agreement that relate to the
portion of the Property being transferred as of the date the assignment is effective'
Where an assignment includes the delegation of the corresponding obligations, those
obligations become solely the obligations of the Assignee. If an Assignee is in Default,
then as to OWNER or any Assignees not in Default, the Default shall not: (i) constitute
their Default; (ii) give grounds for termination of their rights under this Agreement; or (iii)
be a basis for an enforcement action against them.
8.4 Amendment of Agreement.
(a) Consent. Subject to the provisions of Subsection 8.4(b), this
Agreement may be amended from time to time by the mutual consent of
the Parties, or their successors in interest, but only in the manner provided
by the Government Code, the Newport Beach Municipal Code and this
Agreement. After any amendment, the term "Agreement' shall refer to the •
amended Agreement.
(b) Amendments. The Parties acknowledge that OWNER may
determine that amendments to the Development Plan and /or Project
Approvals are appropriate and desirable. In such event, OWNER may
apply in writing for an amendment to prior Project Approvals or the
Development Plan. CITY shall process and act on the application. CITY
shall have no obligation to grant any application that amends the permitted
land uses, the overall intensity or density of the Project, or otherwise is an
amendment of the Development Plan that could have one or more
significant adverse environmental impacts. Any approved amendment
shall be incorporated into this Agreement by reference and may be further
amended from time to time as provided in this Section.
8.5 Enforcement. This Agreement is enforceable by each of the Parties and
their respective successors and assigns, provided, however, in the event of a Default
the remedies shall be limited to those specified in Section 10.7.
8.6 Termination. This Agreement shall be deemed terminated and of no
further effect upon the occurrence of any of the following events:
(a) Expiration of the term in accordance with Section 8.2;
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(b) Entry, after all appeals have been exhausted, of a final judgment or
issuance of a final order directing the CITY to set aside, withdraw, or
abrogate the CITY's approval of this Agreement or any material part of the
Project or Project Approvals; or
(c) The effective date of a Party's election to terminate the Agreement
as provided in Section 10.3 of this Agreement.
8.7 Right to Terminate Upon Specified Events. Notwithstanding any other
provision of this Agreement, OWNER retains the right to terminate this Agreement upon
thirty (30) days written notice to CITY in the event that OWNER reasonably determines
that continued development of the Project consistent with the Development Plan has
become economically infeasible due to changed market conditions, increased
development costs, burdens imposed by the CITY or other governmental entity as
conditions to future discretionary approvals of the Project consistent with this
Agreement, the CITY's exercise of the Governmental Reservations in a way deemed by
OWNER to be inconsistent with the Development Plan, or similar factors.
9. CONFLICTS OF LAW.
9.1 Conflict with State and Federal Laws and Regulations. Where State
or federal law or regulation prevents compliance with one or more provisions of this
Agreement, those provisions shall be modified to the minimum extent necessary to
comply with the State or federal laws or regulations, and the modified Agreement shall
remain in effect, subject to the following:
(a) The CITY shall not request modification of this Agreement pursuant
to this provision unless and until the City Council makes a finding, based
on substantial evidence in the record of a public hearing where OWNER
has notice and an opportunity to present evidence, that the modification is
required (as opposed to permitted) by State and federal law or regulation;
(b) The modifications must be limited to those required (as opposed to
permitted) by the State or federal law or regulation;
(c) The modified Agreement must be consistent with the State or
federal law or regulation requiring the modification;
(d) The intended material benefits of this Agreement must still be
received by each of the Parties after modification; and
(e) The modification and any applicable local, State, or federal law or
regulation does not render the modified Agreement impractical to enforce;
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9.2 Controlling Law. This Agreement shall be governed by the laws of the
State of California.
10. DEFAULT, REMEDIES AND TERMINATION.
10.1 . General Provisions. In the event of a Default the Party alleging a Default
shall give the other Party a written Notice of Default. The Notice of Default shall specify
the nature of the alleged Default, and a reasonable manner and sufficient period of time
(not less than thirty (30) days) 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 the Agreement or institution of legal proceedings. If the
alleged Default is cured within the Cure Period then a Default shall be deemed not to
exist. Neither Party shall initiate nor pursue legal proceedings if the Default in question
is not susceptible of cure within the applicable Cure Period, and the Defaulting Party
commences its cure within the Cure Period and diligently pursues the cure to
completion.
10.2 Option to Institute Legal Proceedings or to Terminate. The noticing
Party must give the Defaulting Party a Notice of intent to terminate this Agreement if the
noticing Party intends to terminate the Agreement and the alleged Default is not cured
within the Cure Period. The City Council shall, no later than forty -five (45) days after a
Notice of intent is served on either Party, hold a public hearing in the manner specified
in the Government Code and /or the Municipal Code to consider and review the alleged
Default.
10.3 Notice of Termination. After the public hearing described in Section
10.2, the Party alleging the Default, at its option, may give written Notice of termination
of the Agreement to the other Party. The Agreement shall be terminated immediately
upon giving the Notice. A termination shall be valid only if good cause exists and a
preponderance of the evidence presented to the City Council at the public hearing
establishes the continued existence of a Default after the Cure Period. The findings of
the City Council as to the existence of a Default shall have no weight in any legal
proceeding brought to determine the existence of a Default. The validity of any
termination may be challenged pursuant to Section 12.17, in which case the court shall
render an independent judgment as to the existence of a Default and good cause for
termination. Termination may result only from a material Default of a material provision
of this Agreement.
10.4. Waiver. Failure or delay in giving Notice of Default shall not waive a
Party's right to give future Notice of the same or any other Default.
10.5 Default by OWNER. Subject to and after termination of this Agreement in
compliance with Sections 10.1 through 10.3, if OWNER Defaults, the CITY shall have
no obligation to perform any of CITY's obligations under this Agreement (as opposed to
the CITY's obligations under the Development Plan and the General Regulations),
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unless otherwise ordered by a court of competent jurisdiction. The CITY's election not
to perform as permitted by this provision shall not constitute a Default.
10.6 Default by the CITY. Subject to and after termination of this Agreement
in compliance with Sections 10.1 through 10.3, if the CITY Defaults, OWNER shall have
no obligation to perform any of OWNER's obligations under this Agreement, unless
otherwise ordered by a court of law. However, OWNER shall not be entitled to receive
Project Approvals or take any other action inconsistent with provisions of the
Development Plan, the Newport Beach General Plan, or relevant zoning ordinances
unless otherwise permitted by law. OWNER's election not to perform as permitted by
this provision shall not constitute a Default.
10.7 Specific Performance.
(a) The Parties agree that, except as provided in Subsection 9.7.b., the
loss by either of them of their respective rights under this Agreement
would not be compensable through monetary damages. Therefore, the
remedy for a Default for each Party shall be limited to specific
performance and /or injunctive relief.
(b) Notwithstanding the foregoing, in the event any development fees
or taxes are imposed on development of the Property other than those
authorized pursuant to this Agreement or the Development Plan, OWNER
shall be entitled to recover from CITY restitution of all improperly assessed
fees or taxes, together with interest thereon at the maximum allowable
non - usurious rate from the date such sums were paid to CITY to the date
of restitution.
10.8 Effect of Termination. The termination of this Agreement shall not affect
the rights, duties and obligations, if any, of any successorto OWNER to comply with the
Project Approvals.
11. ENCUMBRANCES AND RELEASES ON PROPERTY.
11.1 Discretion to Encumber. This Agreement shall not prevent or limit
OWNER, in any manner, at OWNER's sole discretion, from encumbering the Property
or any portion thereof or any improvement on the Property by any mortgage, deed of
trust, or other security device securing financing with respect to the Property or its
improvements.
11.2 Entitlement to Written Notice of Default. A Mortgagee shall, upon
written request to CITY, be entitled to receive from CITY written notification of any
default by Owner of the performance of OWNER's obligations under this Agreement
which has not been cured within thirty (30) days following the date of the Notice of such
default.
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(a) Notwithstanding OWNER's default, this Agreement shall not be
terminated by CITY as to any Mortgagee to whom Notice is to be given
and to which either of the following is true:
(i) The Mortgagee cures any default by OWNER involving the
payment of money within sixty (60) days after the Notice of default;
provided, however, that if any such default cannot, with diligence,
be cured within the sixty (60) day period, then the Mortgagee shall
have additional time as may be reasonably necessary to cure the
default if the Mortgagee commences the cure within the sixty (60)
day period and diligently pursues the cure to completion.
(ii) As to defaults requiring title or possession of all or a portion
of the Property to cure: (i) the Mortgagee agrees in writing, within
sixty (60) days after receipt from CITY of the written Notice of
default, to perform the proportionate share of OWNER's obligations
under this Agreement allocable to that part of Property in which the
Mortgagee has an interest conditioned upon the Mortgagee's
acquisition of the required portion of the Property by foreclosure
(including a trustee sale) or by a deed in lieu of foreclosure; (ii) the
Mortgagee commences foreclosure proceedings to reacquire title to
the Property or applicable portion thereof within the sixty (30) days
and thereafter diligently pursues foreclosure to completion; and (iii)
the Mortgagee promptly and diligently cures the default after
obtaining title or possession. Subject to the foregoing, in the event
any Mortgagee records a Notice of default as to its mortgage or
deed of trust, CITY shall consent to the assignment of all of
OWNER's rights and obligations under this Agreement to the
Mortgagee or to any purchaser of OWNER's interest at a
foreclosure or trustee sale and OWNER shall remain liable for such
obligations unless released by CITY or unless the applicable
portion of OWNER's Property is transferred.
(b) Notwithstanding Subsection 11.2.a. of this Agreement, if any
Mortgagee is prohibited from commencing or prosecuting foreclosure or
other appropriate proceedings including by any process of injunction
issued by any court or by reason of any action by any court having
jurisdiction of any bankruptcy or insolvency proceedings involving
OWNER, the times specified in Subsection 11.2.a of this Agreement for
commencing or prosecuting foreclosure or other proceedings shall be
tolled during the period of the prohibition.
(c) OWNER's execution or breach of this Agreement shall not defeat,
render invalid, diminish or impair the lien of any existing or future
mortgage or deed of trust on OWNER's Property made in good faith and
for value.
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11.3. Mortgagee Not Obligated. Except as provided in this Agreement, no
Mortgagee shall have an obligation or duty under this Agreement to perform the
obligations of OWNER or other affirmative covenants of OWNER or to guarantee such
performance. No Mortgagee shall be liable for any Default or monetary obligations of
OWNER arising prior to acquisition of title to the Property by the Mortgagee or their
respective successors or assigns. However, to the extent any covenant to be
performed by OWNER is a condition to the performance of a covenant by CITY, the
performance shall continue to be a condition precedent to CITY's performance. In the
event a Mortgagee elects to develop the Property in accordance with the Development
Plan, the Mortgagee shall be required to assume and perform the obligations or other
affirmative covenants of OWNER under this Agreement.
12. MISCELLANEOUS PROVISIONS.
12.1 Notices. All Notices shall be written and delivered by personal delivery
(including Federal Express and other commercial express delivery services providing
acknowledgments or receipt), registered, certified, or express mail, or telegram to the
addresses set forth below. Receipt shall be deemed complete as follows:
(a) For personal delivery, upon actual receipt; and,
(b) For registered, certified, or express mail, upon the delivery date or
attempted delivery date as shown on the return receipt.
Notices shall be addressed as follows:
To the CITY: City Manager - City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92660
Attention: City Manager
To OWNER: Koll Center Newport Number A
4343 Von Karman Ave.
Newport Beach, CA 92660
Attn: Don Koll
CC: Starpointe Ventures
Either party may give the other a "Notice of a New Address" to modify this Subsection.
12.2 Enforcement Delay: Extension of Time of Performance. Neither Party
shall be deemed to be in Default where delays or non - performance are due to war,
insurrection, strikes, walkouts, riots, floods, earthquakes, fires, oil spills, casualties, acts
of nature, unavailability of materials, governmental restrictions imposed or mandated by
governmental entities other than CITY, suspension of rights in accordance with the
. existence of unforeseen circumstances, governmental moratorium other than a
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21
moratorium enacted by CITY, litigation, or similar bases for excused performance. An
extension of time for performance shall be deemed granted for the period of the delay,
or longer as may be mutually agreed upon, but in no case shall the extension of time for
performance exceed six (6) months.
12.3 Severability. If any material part of the Agreement is found by a court to
be invalid, void, or illegal, the Parties shall modify the Agreement to implement the prior
intent of the Parties. These steps may include the waiver by either of the Parties of their
right under the unenforceable provision. If, however, the Agreement objectively cannot
be modified to implement the prior intent of the Parties and the Party substantially
benefited by the material provision does not waive its rights under the unenforceable
provisions, the entire Agreement shall become void. For purposes of this Section, and
without excluding the possible materiality of other provisions of this Agreement, all
provisions of Sections 3, 4 and 5 are deemed "material ".
12.4 Entire Agreement. This Agreement constitutes the entire understanding
and Agreement of the Parties regarding the subject matter. This Agreement
supersedes all negotiations and previous offers and understandings between the
Parties regarding the subject matter.
12.5 Waivers. All waivers of the provisions of this Agreement must be in
writing and signed by the Party making the waiver.
12.6 Incorporation of Recitals. The Recitals in Section 1 are part of this .
Agreement.
12.7 Covenant of Good Faith and Fair Dealing. Neither Party shall do
anything that has the effect of harming or injuring the right of the other Party to receive
the benefits of this Agreement.
12.8 Covenant of Cooperation. The CITY shall cooperate with OWNER to
obtain any permits from other public agencies that may be required for development of
the Project. OWNER may challenge any ordinance, measure, moratorium, or other
limitation in a court of law if litigation is necessary to protect the development rights
vested in the Property pursuant to this Agreement.
12.9 Justifiable Reliance. CITY acknowledges that, OWNER will reasonably
be relying on CITY's performance of its covenants in this Agreement when OWNER
invests money and effort in construction of the Project.
12.10 Further Actions and Instruments. Upon the request of either Party, the
other Party shall promptly execute documents, with acknowledgment or affidavit if
reasonably required, and take any other action reasonably necessary to implement the
terms and conditions of this Agreement or permit development of the Project in
accordance with the Development Plan.
•
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e) a
12.11 Successors and Assigns. Subject to Section 8.3 above, the burdens of
this Agreement shall be binding upon, and the benefits of the Agreement inure to, all
successors -in- interest and assigns of the Parties.
12.12 Construction of Agreement._ All language in all parts of this Agreement
shall be construed as a whole and given its fair meaning. The captions of the Sections
and Subsections are for convenience only and shall not be considered or referred to in
resolving questions of construction. This Agreement does not, and is not intended to,
impermissibly contract away the police power, legislative authority or governmental
functions of the CITY in general or with respect to the Property.
12.13 Authority to Execute. The person executing this Agreement on behalf of
OWNER warrants and represents that he /she has the authority to do so and the
authority to bind OWNER to the performance of OWNER's obligations under this
Agreement.
12.14 Consent. Any consent required by the Parties in carrying out the terms of
this Agreement shall not be unreasonably withheld.
12.15 Effect on Title. This Agreement shall not continue as an encumbrance
against any portion of the Property as to which this Agreement has terminated.
12.16 Recording. The City Clerk shall cause a copy of this Agreement to be
executed by the CITY and recorded in the Official Records of Orange County no later
. than ten (10) days after the Effective Date. The recordation of this Agreement s is a
ministerial act and the failure of the CITY to record the Agreement as required by this
Section and Government Code § 65868.5 does not make the Agreement void or
ineffective.
12.17 Institution of Legal Action. In addition to any other rights or remedies,
either Party may institute legal action to cure, correct, or remedy any Default, to enforce
any provision of this Agreement, to enjoin any threatened or attempted violation of this
Agreement, or to obtain any remedies consistent with the purpose of this Agreement.
Legal actions shall be instituted in the Superior Court of the County of Orange, State of
California.
12.18 Attorneys' Fees. In any arbitration, quasi - judicial, administrative, or
judicial proceeding between the Parties initiated with respect to this Agreement, the
prevailing party shall be entitled to reasonable attorneys' fees and all costs, expenses,
and disbursements in connection with such action.
12.19 Relationship of the Parties. The contractual relationship between CITY
and OWNER arising out of the Agreement is one of independent contractor and not
agency. This Agreement does not create any third party beneficiary rights.
12.20 Indemnification. OWNER and CITY agree to cooperate in the defense of
. any legal action filed and prosecuted by any person or entity other than the Parties that
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29
challenges the validity or manner of approval of this Agreement, the Project Approvals
or the Project Conditions (Third Party Lawsuit). CITY will promptly notify OWNER of
any Third Party Lawsuit upon service. CITY may retain counsel to defend the Third
Party Lawsuit and, in such event, OWNER shall pay all attorneys fees and costs
incurred by the CITY in the defense of the Third Party Lawsuit. OWNER shall also
indemnify and hold harmless the CITY and its officers and employees with respect to
any costs, expenses, judgment, damages or award, including an award of attorney fees
and /or costs to any third party, arising out of any Third Party Lawsuit. OWNER
acknowledges and agrees that CITY has fully complied with all applicable statutes,
ordinances, including the provisions of CEQA, the State Zoning and Planning Act, and
Existing General Regulations in the initiation, processing, evaluation and approval of all
Project Approvals. OWNER's obligations pursuant to this Section shall commence as of
the Approval Date and continue for the period specified in Section 8.2 or until this
Agreement terminates, whichever occurs first. The obligation of OWNER to defend,
indemnify and hold CITY harmless shall not apply to the fraud or willful misconduct of
the CITY or its officers or employees that occurred on or before the Approval Date. The
obligation of OWNER to defend, indemnify and hold CITY harmless shall not apply to
the fraud, willful misconduct or violation of law by the CITY or its officers and employees
that occurs after the Approval Date.
12.21 Payments. Any payment due pursuant to this Agreement shall bear
interest at the rate of ten percent (10 %) per annum on the unpaid balance from the date
due until paid with interest compounded monthly.
Dated:
Kleist]
Dated: 2001
CITY OF NEWPORT BEACH
0
Mayor
KOLL CENTER NEWPORT NUMBER A
M
Its:
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CITY OF NEWPORT BEACH
Hearing Date: June 26, 2001
PLANNING DEPARTMENT Agenda Item: 33
3300 NEWPORT BOULEVARD Staff Person: Larry N. Lawrence
NEWPORT BEACH, CA 92658 (949) 661 -8175
(949) 644-3200; FAX (949) 644 -3250
REPORT TO THE MAYOR AND CITY COUNCIL J ,/ ' J f AG EN
SUBJECT: Koll Office Site B: GPA, PC Amendment, and Development Agreement
SUMMARY: General Plan Amendment No. 97 -3(B), Zoning Amendment No. 905,
Traffic Study No. 119, Development Agreement No. 16, and EIR No. 158:
To allow an additional 250,000 gross square feet of office use within Office
Site B of the Koll Center Newport Planned Community in order to provide
for future construction of a ten -story office tower. Located at MacArthur
Boulevard and Jamboree Road (see Vicinity Map).
ACTION: Hold hearing; certify the EIR by adopting the attached resolution, approve
the Traffic Study by adopting the attached resolution, approve GPA per the
attached resolution, and introduce ordinances to approve the Development
Agreement and Zoning Amendment, then pass to second reading on July 10,
2001.
-or-
Deny the proposed project by adopting the attached resolution.
GENERAL PLAN: Existing: Office Site B is designated for Administrative, Professional and
Financial Commercial land use in the Land Use Element.
Proposed: The same land use as above, but with a 250,000 square-foot
increase in the maximum gross floor area.
ZONING: Existing: Office Site B is zoned for Professional and Business Office,
Restaurant, and Retail - Service uses under the Koll Center Newport Planned
Community District Plan or PC Text.
Proposed: The zoning amendment would increase the maximum net square
footage of office use while eliminating the restaurant and retail - service uses.
APPLICANT/ Koll Center Newport Number A
OWNER: 1900 Main Street, Suite 350
Irvine, CA 92614
BACKGROUND
L PROJECT DESCRIPTION .
The applicant is proposing to develop a ten -story professional office building, a 1200 -car six -level
parking structure to replace an existing two -level parking structure; and a 500 -car two -level parking
structure to replace an existing surface parking area (see Conceptual Site Plan).
The project applications include the following:
1. General Plan Amendment No. 97 -3(B) — An amendment to the Land Use Element to
increase the maximum gross square footage allowable in Office Site B by 250,000: from
1,060,898 to 1,310,898.
2. Zoning Amendment No. 905 — An amendment to the Koll Center Newport Planned
Community text, which is the zoning document for the site, to increase the maximum net
square footage allowable in Office Site B by 237,500: from 963,849 to 1,201,349.
3. Development Agreement No. 16 — An agreement between the City and the developer for
the payment of special mitigation fees not required of other projects in return for assurances
that the project can proceed.
4. Traffic Study No. 119 — A traffic study and Traffic Phasing Ordinance (TPO) analysis for
the project.
5. Environmental Impact Report No. 158 — Certification of the EIR.
2. PROJECT OBJECTIVES
The applicant's project objectives are as follows:
• To develop a professional office project that is consistent and compatible with surrounding
commercial development in the Koll Center Newport Planned Community.
• To provide additional professional office development adjacent to the existing Conexant
facility which will enhance the campus environment and facilitate connectivity to existing
and future Conexant facilities.
• To develop a project that is compatible with and can utilize the existing infrastructure (e.g.,
sewer, water, stormwater runoff, etc.) capacity.
• To develop additional professional office space in the City of Newport Beach, thereby
promoting the creation of new jobs in a housing -rich city.
• To develop a project that more efficiently utilizes valuable developable land in the Koll
Center Newport area by constructing new parking structures, thereby minimizing the use of
surface parking areas.
Koll office Site B
June 26. 2001
Page 2
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Koll Office Site B
June 26, 2001
Page 3
CONCEPTUAL SITE PLAN
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Koll Office Site B
June 26. 2001
Page 4
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• 3. GROSS VS. NET FLOOR AREA
The General Plan Land Use Element specifies building square footages as gross floor area. By
contrast, the KCN Planned Community District Plan (or PC text for short) lists square footages as
net floor area. Per the Zoning Code, gross floor area includes all floor area within the exterior wall
surface of a building, while net floor area excludes non - habitable space, such as equipment rooms,
elevator shafts, stairwells, etc. As used by the City, net floor area is considered to be 95 percent of
gross floor area. Therefore, the proposed General Plan increase in gross floor area of 250,000
square feet corresponds to an increase in net floor area in the PC text of 237,500 sq.ft.
4. SITE OVERVIEWAND SURROUNDING LAND USES
The project site is located at the intersection of MacArthur Boulevard and Jamboree Road. John
Wayne Airport (JWA) is approximately one mile to the northwest. The project site is within the
Koll Center Newport's "Office Site B ", which encompasses approximately 43.7 acres of the total
177 -acre Planned Community. The project site, containing the proposed new office tower and
supporting parking, will occupy approximately 14.6 acres at the southern comer of Office Site B.
Surrounding land uses are as follows:
Project Site: Office Site B: office and restaurant uses.
• To the west: Across MacArthur Boulevard: professional office uses.
To the north Conexant researchlindustrial and office uses.
To the east: Across Jamboree Rd.: UCI Child Dev. Center and facilities yard and open space.
To the south: MacArthur /Jamboree intersection and Corona del Mar Freeway.
ANALYSIS
I. GENERAL PLAN
Land Use and Floor Area
The project site is designated for "Administrative, Professional & Financial Commercial" use in the
Land Use Element of the General Plan. This land use category has been applied to areas which are
predominantly dedicated to office use, but which also accommodate supporting retail and service
uses. Permitted uses include offices, medical offices, retail and service commercial, restaurants,
hotels and motels, commercial recreation, and senior citizen housing facilities. As noted above, the
General Plan Amendment proposes a 250,000 square -foot increase in the Land Use Element's
maximum gross floor area for Office Site B; that is, from 1,060,898 to 1,310,898 gross square feet.
The land use designation of Administrative, Professional and Financial Commercial use would
remain unchanged.
Kull Office Site B
-" June 26. 2001
Page 5
General Plan Policies
The Land Use Element, a component of the General Plan, contains 12 development polices. The i
proposed project, in association with identified mitigation measures and other project features, must
be evaluated against the polices which are applicable to the project in order to determine its
consistency with the General Plan.
NOTE: Land Use Element Policies C, F, G, H, 1, J, and L refer to annexations, land use
conversions and community commercial, marine - related and flood -prone areas of the City.
They are therefore not applicable to the present project.
A. The City shall provide for sufficient diversity of land uses so that schools, employment,
recreation areas, public facilities, churches and neighborhood shopping centers are in
close proximity to each resident of the community.
The project consists of the intensification of office development on a project site that is
already designated for and substantially developed in Administrative, Professional and
Financial Commercial use. Since the project site is located in proximity to residential areas,
the additional employment opportunities resulting from construction of a new 250,000
square -foot office tower on the site would contribute to a more desirable jobs- housing
balance in the area. Therefore, the proposed project is consistent with this policy.
B. To insure redevelopment of older or underutilized properties, and to preserve the value of
property, the floor area linhits specified in the Land Use Element allow for some modest
growth. To insure that traffic does not exceed the level of service desired by the City,
variable floor area limits shall be established based upon the trip generation
characteristics of land uses.
The intent of Policy B is to establish limits on land use intensity in order to insure that the
City's circulation system operates at an acceptable level of service. Provisions to implement
this policy, such as the Traffic Phasing Ordinance and development limits, have been
incorporated into the Municipal Code. The proposed project is subject to these provisions
and has been reviewed under them in the EII2. The EII2 traffic study indicates that the
proposed project will generate a significant increase in the number of vehicle trips through
major intersections, including MacArthur Boulevard/Jamboree Road and Jamboree Road/
Campus Drive, where no feasible mitigation measures have yet been identified. However,
the project will provide for both direct intersection improvements and the payment of traffic
mitigation fees. Such fees will be available for the mitigation of impacts at the above
intersection when feasible improvements are identified. Therefore, the proposed project
could be deemed consistent with this policy if the financial contribution to these as -yet
unidentified improvements is determined sufficient.
D. The siting of new buildings and structures shall be controlled and regulated to insure, to
the extent practical, the preservation of public views, the preservation of unique natural
resources, and to nhinimize the alteration of natural land forms along bluffs and cliffs.
Ko11 Office Site B
June 26.2001
Page 6
0
The site of the new office tower is set back substantially from both MacArthur Boulevard
and Jamboree Road in order to mitigate visual impacts from public streets. One of the
new parking structures will be located close to the intersection of MacArthur and
Jamboree. However, this two -level structure will be depressed partially below grade and
the perimeter of the structure will be heavily landscaped in order to soften public views.
Additionally, the existing two -level parking structure just north of the existing twin ten -
story office towers will be replaced with a new six -level structure located 200 feet further
back from Jamboree and 50 feet further back from MacArthur than the existing structure.
Per design standards added to the PC text, both new parking structures will be textured
and landscaped to soften their visual impacts (see Parking Structure Buffering on p. 10 of
this report). Because of these design features, staff believes that the proposed project is
consistent with this policy.
F. The City shall develop and maintain suitable and adequate standards for landscaping, sign
control, site and building design, parking and undergrounding of utilities and other
development standards to insure that the beauty and chann of existing residential
neighborhoods is maintained, that commercial and office projects are aesthetically pleasing
and compatible with surrounding land uses and that the appearance of, and activities
conducted within, industrial developments are also compatible with surrounding land uses
and consistent with the public health, safety and welfare.
Approximately 4.2 acres or 29 percent of the 14.6 -acre site area will be landscaped to
soften and mitigate the proposed development. The KCN Planned Community text also
contains detailed standards for landscaping, parking, signs, and other project elements.
These requirements will ensure that the proposed project is consistent with this policy.
K. The land use designations and building intensity standards in this Element reflect limits on
John Wayne Airport imposed by the Airport Settlement Agreement and the provisions of
that Agreement have become all integral part of the land use and planning process of the
City of Newport Beach. The City should take all steps necessary to preserve and protect the
Agreement, as well as assist in the selection of a second commercial airport which, in
conjunction with John Wayne Airport, could serve a majority of the County's short and
nhedmm haul demand.
The proposed project will not impact the Airport Settlement Agreement nor the operations
of John Wayne Airport, as there is a daily cap on the number of commercial flights from the
airport. Additionally, the Federal Aviation Administration has determined that the proposed
ten -story building will not pose a threat to air navigation. Therefore, Policy K is not
applicable to the proposed project.
Kell Office Site B
June 26. 2001
Page 7
2. KCN PLANNED COMMUNITY TEXT
Increase in Net Floor Area
In addition to the above General Plan Amendment, the PC text must be amended to increase the
amount of office square footage allocated to Office Site B. Currently, 963,849 net square feet of
office development is permitted within Office Site B. Approval of the PC text amendment would
bring the total amount of professional and business office use in Office Site B to: 963,849 +
237,500 = 1,201,349 net square feet.
In addition to the PC's allocated office use, there are separate unused allocations for 5,000 sq.ft. of
restaurant space and 10,000 sq.ft. of retail/service space in Office Site B. The PC text provides that
these 15,000 square feet, if not used, will automatically revert to office use. Therefore, the proposal
includes this "reverted" restaurant - retail space within the 237,500 square feet of new office use.
No changes are proposed to the permitted uses in the KCN PC text. The proposed amendments
relate exclusively to the maximum square footage allowed in Office Site B and related standards for
building coverage and landscape coverage. Amended pages of the PC text are included as Exhibit
ZA -1 to the draft zoning amendment ordinance.
Parking Space Requirements
The existing Parking Pool "sliding" standard in Part III, Section I -B of the PC text applies to Office
Site B: •
• For the first 125,000 square feet, parking shall be provided at one space per 250 square feet
of net floor area.
• For the next 300,000 square feet, parking shall be provided at one space per 300 square feet
of net floor area.
• For any additional floor area, parking shall be provided at one space per 350 square feet
of net floor area.
The above standards yield the following parking requirements for Office Site B:
REQUIRED PARKING IN OFFICE SITE B AFTER AMENDMENT
Net Floor Area
Parking Ratio
Required Spaces
125,000 square feet
1 space/250 square feet
500
300,000 square feet
1 space/300 square feet
1,000
776,349 square feet
1 space/350 square feet
2,219
1,201,349 square feet
3,719
0
Kull Office Site B
June 26. 2001
Page 8
The required number of spaces will be provided in the parking facilities shown on the conceptual
i site plan (page 4 of this staff report):
PARKING PROVIDED PER CONCEPTUAL SITE PLAN
Parking Facility
No. of Spaces
Surface Parking
1,735
Existing Parking Structure to Remain (in separate
portion of Office Site B)
284
New 2 -Level Parking Structure
500
New 6 -Level Parking Structure
1,200
Total Spaces Provided
3,719
Parkirrg Structure Design
The following provision has been added to the PC text amendment (see pp. 2 -3 of Exhibit ZA -1) in
order to mitigate the impacts of the two new parking structures to be built in Office Site B:
"c. Parking structures within commercial and office sites shall incorporate the following
design features in order to soften their visual impacts:
• The sides of parking structures open to public view shall be textured and colored or
faced with brick or other material consistent with the structure's associated buildings.
Exposed, uncolored concrete sides shall be avoided.
• Linear planters and/or trellises with shrubs and cascading vines shall be provided along
the outside of parking levels visible from public roadways.
For the two -level parking structure in Office Site B nearest the intersection of
MacArthur boulevard and Jamboree Road, trees within planters and/or trellis structures
with trailing vines shall be provided within the interior of the top parking level. Also,
the finish grade of the top level of this parking structure shall substantially match and
follow the pre- existing surface grade and shall not extend more than two feet above the
pre - existing surface grade at any point.
In Office Site B, in order to ensure implementation of the preceding design features,
landscape plans for both parking structures in that Site shall be submitted by the
developer to the Planning Commission for review and approval prior to the issuance of
any building permits. These plans shall conform to the preceding design requirements."
The "two feet above pre- existing surface grade" standard for the top deck of the parking structure
has been added since the June 7 Planning Commission meeting in order to reduce uncertainty and
ensure that the Planning Commission review called for above does not create a conflict with the
development agreement (described later in this report) via the imposition of design requirements
Kull Office Site B
June 26, 2001
Page 9
which materially increase development costs. This numerical standard was suggested by the project
architect, who also indicated that the applicant had expressed acceptance of the standard.
Sign Standards
No changes are proposed to the existing sign standards. Building identifications signs may contain
no more than 1'/2 square feet of sign area for every I foot of lineal building frontage, up to a
maximum of 200 square feet. Such signs shall be limited to a single entity and may be placed on a
maximum of two facades. No sign designs have been included with the conceptual site plans
submitted by the applicant.
3. LANDSCAPING
Landscaping in the 14.6 -acre portion where the new office tower is proposed, as derived from the
conceptual site plan, would be approximately 4.2 acres or 29 percent of the total project site.
4. ENVIRONMENTAL IMPACT REPORT
The public review period for the Draft Environmental Impact Report (DEIR) ran from May 24 to
July 10, 2000. At the end of the public review period, the comments received on the DEIR were
evaluated and written responses prepared. Both the DEIR and the Responses to Comments have
been distributed to the City Council. Together, they constitute the Final Environmental Impact
Report (FEIR). The FEIR is available for public review at the Planning Department and the City
Library. 0
5. EIR COMMENTS AND RESPONSES
Comments Submitted During Review Period
Ten letters were received from public agencies regarding the Draft EIR by the end of the public
review period. Responses to each of the comments in those letters have been prepared and are
included with the Final EIR. The agencies that commented on the Draft EIR include:
A. Irvine Ranch Water District
B. Southern California Association of Governments
C. Newport Beach Environmental Quality Affairs Citizens Advisory Committee
D. California Department of Transportation
E. Airport Land Use Commission
F. California Regional Water Quality Control Board
G. City of Irvine
H. County of Orange Planning & Development Services Department
I. University of California, Irvine
J. California Department of Conservation
10)
Kell Office Site B
June 26. 2001
Page 10
. All of the comments from the above agencies and the responses to these comments are contained in
Exhibit EIR -2 to the attached EIR resolution accompanying this report.
New EQAC Comments
The City's Environmental Quality Affairs Citizens Advisory Committee (EQAC) formed a
subcomtnittee to review the EIR. EQAC's comments and the responses to those comments are
contained in the EIR Responses to Comments, distributed separately.
EQAC subsequently submitted additional comments on the above - described responses to
comments. Although CEQA does not require further responses to new comments made on earlier
responses to comments, it should be noted that many of the concerns raised by these new comments
relate to the present project's relationship to the Conexant project. However, it is now doubtful that
the Conexant project will proceed. Also, issues reiterated by the new comments regarding
cumulative traffic impacts will be addressed in detail in the new General Plan update recently
initiated by the City Council.
The Planning Comtnission received additional comments from EQAC regarding the adequacy of
mitigation measure 4.4 -1 requiring the preparation of an interim parking relocation plan.
Preparation of the plan is deferred to the building permit stage and EQAC believes that this is
inconsistent with CEQA which requires identification of a feasible mitigation measure at the time
of approval. Staff believes that identification of a precise parking relocation plan at this time would
• not be meaningful, because a plan prepared today would rely upon available parking in the area and
parking demand which is likely to change between now and project construction. Staff believes that
the mitigation measure as drafted is adequate as it requires, as a condition of approval, the
preparation of a precise plan when sufficient information is available regarding parking lot
availability and actual parking needs.
6. TRAFFICISSUES
Short Range (TPO) Traffic Analysis
The Draft Environmental Impact Report (DEIR) contains a Traffic Impact Analysis prepared by
WPA Traffic Engineering per the requirements of the Orange County Congestion Management
Program and the Newport Beach Traffic Phasing Ordinance (TPO).
The City's Traffic Phasing Ordinance requires special analysis and mitigation of traffic impacts if
project - generated traffic is greater than one percent of the combined total of existing traffic,
projected regional traffic growth, and traffic generated by "committed" projects (i.e. approved
projects requiring no further discretionary review) on any approach to any of the study intersections
during any morning and/or evening peak period.
The City's traffic standard is for intersections to operate at no greater than 90 percent of intersection
capacity, i.e. level of service D. However, the TPO traffic analysis determined that, after project
completion, traffic generated by the project would contribute to the short -range degradation of the
Koll Office Site B
June 26, 2001
Page 11
MacArthur Boulevard/Jamboree Road intersection during the a.m. peak hour. The intersection is
forecast to operate at an unacceptable level of service (i.e. 1.05 ICU or 105 percent of intersection
capacity, which is Level of Service F) with the implementation of the proposed project and buildout
of other approved projects by 2003. The TPO guidelines state that any intersection operating at an
unacceptable level of service with an increase of 0.01 or more requires mitigation. Therefore, this
cumulative impact is considered to be significant, necessitating the implementation of mitigation
measures. In order to mitigate these short-range impacts to the intersection, the EIR has identified
the following needed improvements:
• Add a second northbound left -turn lane
• Add a second southbound left -turn lane
• Add a northbound right -turn lane
The City already planned for the above improvements prior to the present project. Alternative
preliminary design concepts have been prepared and construction is planned for 2002 -2003. For
these improvements, the applicant will be required to pay the project's fair share, i.e. $70,000, as
determined per the City's Traffic Phasing Ordinance and as memorialized in the attached
development agreement (pp. 13 -14).
It should be noted that the MacArthur Boulevard/Jamboree Road intersection does not now meet
the City's traffic standard. The present a.m. peak hour ICU is .93, or 93 percent of intersection
capacity.
Loup Range Traffic Analysis
The EIR's traffic analysis determined that the project would also contribute to significant long -
range, i.e. year 2020 impacts at five intersections:
• MacArthurBoulevard/Jamboree Road (p.m. peak hour)
• Irvine Avenue/Mesa Drive (p.m. peak hour)
• Jamboree Road/Bristol Street North (a.m. and p.m. peak hours)
• Jamboree Road/Campus Drive (p.m. peak hour)
• Jamboree Road/I -405 NB Ramps (a.m. peak hour)
The identified impacts at year 2020 and associated mitigation measures are as follows:
1. MacArthur Boulevard/Jamboree Road
The long range analysis shows that traffic generated by the proposed project will
contribute to the long -range degradation of the MacArthur Boulevard/Jamboree Road
intersection during the p.m. peak hour, which is forecast to operate at 95 percent of
capacity at year 2020. This degradation would occur even after the short-range lane
addition improvements identified in the preceding section.
0'
Koll Office Site B
June 26, 2001
Page 12
. The EIR identified intersection improvements to mitigate the above long -range impact,
including a possible grade separation at the intersection or an additional westbound
through lane on Jamboree. Per the development agreement (p.14), the developer will
contribute $8.00 per square foot of approved additional entitlement (the additional
entitlement being the 250,000 square foot increase in maximum floor area), or $2
million, in order to help fund such long range improvements and those improvements
needed at other intersections impacted by the project.
The EIR correctly identified the traffic impact at this intersection, as well as potentially
feasible measures to mitigate that impact. At the time the EIR was prepared, it was
believed that the above - described MacArthur /Jamboree improvements were feasible
and would mitigate the project impacts below a level of significance. However, from
further study since that time, staff now believes that it is uncertain whether these
potential improvements are feasible or whether they will adequately mitigate the long -
range traffic impacts at this intersection.
Engineering studies are required to confirm the feasibility of the above improvements.
However, funds will not be available to do those studies for four -to -five years.
Therefore, in the context of the present project review, staff is not in a position to
recommend these improvement concepts as a valid mitigation measure. If the City
Council agrees with this assessment, the impact to the MacArthur /Jamboree
intersection will be deemed significant and unavoidable. Therefore, the impact has
been incorporated into the draft statement of overriding considerations.
2. Irvine Avenue/Mesa Drive
Traffic generated by the proposed project will contribute to the long -range degradation
of the Irvine Avenue/Mesa Drive intersection during the p.m. peak hour, which is
forecast to operate at 105 percent of capacity with the implementation of the proposed
project and buildout of other projects. To mitigate this impact, the applicant shall
contribute the project's fair share, as determined by the City, to implement the following
improvements:
X Add a third northbound through lane.
X Add a third southbound through lane.
X Add a southbound right turn lane.
3. Jamboree Road/Bristol Street North
Traffic generated by the proposed project will contribute to the long -range degradation
of the Jamboree Road/Bristol Street North intersection, which is forecast to operate at
103 percent of capacity in the morning and 104 percent of capacity in the afternoon with
the implementation of the proposed project and buildout of other projects. However,
this impact is predicated on the construction of the JR -5 ramp between Jamboree Road
. and the 73 freeway (conceived as part of the San Joaquin Hills Tollway Design/Build
Kull Office Site B
June 26, 2001
Page 13
studies). That ramp is conceptual and is not provided for in the City's General Plan or
the County's Master Plan of Arterial Highways. Therefore, since the ramp has no .
official status and no funding has been identified, its construction is speculative at this
time. As a result, the EIR and traffic study incorrectly forecast that the proposed project
will significantly impact this intersection. The EIR and traffic study do show that the
intersection will operate at acceptable levels of service in the long range with the
proposed project without the JR -5 ramp. Thus, no significant impact will occur and no
mitigation measures are required. (If the ramp ever becomes a planned project, a
separate environmental review of its potential impacts will be required.)
4. Jamboree Road/Campus Drive
Traffic generated by the proposed project will contribute to the long -range degradation
of the intersection during the p.m. peak hour, which is forecast to operate at 99 percent
of capacity with the implementation of the proposed project and buildout of other
projects.
The cities of Newport Beach and Irvine are presently evaluating improvement
alternatives for this intersection. The present Koll project will provide funding for direct
improvements to the intersection and/or the payment of traffic mitigation fees. Such fees
will be available for the mitigation of impacts when a detailed improvement design is
identified. However, since no design has yet been identified, this impact is considered
significant and unavoidable.
5. Jamboree Road/I -405 Northbound Freeway Ramps •
Traffic generated by the proposed project will contribute to the long -range degradation
of the Jamboree Road/I -405 NB Ramps in the City of Irvine during the a.m. peak hour,
which is forecast to operate at 103 percent of capacity with the implementation of the
proposed project and buildout of other projects. To mitigate this impact, the applicant
shall contribute the project's fair share, as determined by the City of Irvine, to
implement the 2020 model geometric improvements to the above ramp intersections.
As described above, implementation of mitigation measures identified in the EIR will reduce the
significant project - related traffic impacts at all of the above intersections except Jamboree
Road/Campus Drive and MacArthur Boulevard/Jamboree Road. It is staffs opinion that these
intersection impacts are significant and unavoidable. They are therefore addressed in the draft
Statement of Overriding Considerations, described below.
7. DEVELOPMENT AGREEMENT
In the recent past, large -scale projects which involve General Plan or zoning amendments have
been accompanied by development agreements negotiated between the City and the developer.
These agreements have provided for enhanced public benefits to justify the higher entitlement level
being granted and/or to offset the consequences of project implementation. In return, the developer .)
Koll Office Site B
June 26. 200 1
Page 14
. was given a level of certainty that the project could proceed.
In view of the above considerations, a draft development agreement has been prepared for the
present amendments. The agreement was developed by the Airport Area Development Committee
appointed by the City Council in June 2000, and drafted by the City Attorney. The applicant has
reviewed and agreed to its provisions. The draft agreement is included as Exhibit DA -1 to the
attached development agreement ordinance. The following are some of the significant benefits of
the development agreement to both the City and the developer:
BENEFITS TO THE CITY
1. Prior to issuance of any building permit for the project, payment to the City of a traffic
mitigation fee of $8.00 per gross square foot of additional entitlement, to fund long range
traffic improvements to intersections and roadways impacted by the project. The proceeds
of this fee are intended to help design and construct improvements to the circulation system
that will mitigate the impacts of this development and future development the City may
allow in the Airport area as a result of planning studies.
The amount of this fee is somewhat arbitrary, in that future development levels and
circulation system improvements are not known at this time. Conexant had agreed to pay a
fee of $10.00 per gross square foot, but only if and when the City approved a circulation
system improvement program. There was no provision for the fee to increase over time,
and agreement had not been reached on the applicability of the fee to Conexant
development that might occur prior to approval of the improvement program.
Kell has agreed to pay the City $8.00 per square foot of additional entitlement prior to
issuance of a building permit, regardless of the City's progress on a circulation system
improvement program. This amount was derived as the present value of $10.00 received
five years in the future, when we might have expected to receive the fee from Conexant.
Kell also agreed to an annual increase in the mitigation fee of $50 if a building permit is
not issued within a year of project approval.
2. Within 60 days of the effective date of the Agreement, payment of $0.45 per gross square
foot of additional entitlement, to help fund a planning study for the airport area as part of the
General Plan update effort. This fee is based on the City's cost estimate for a specific plan
and traffic study for the Airport area, and is the same amount as was included in the
Conexant draft development agreement. Airport area planning as included in the City's
capital budget in 1999 -2000 and 2000 -2001, with a total cost estimate of $500,000. This
project is not included in the proposed budget for 2001 -2002, because it has been
incorporated in the General Plan update.
3. Within 10 days of grading or building permit issuance, payment of a fire suppression impact
fee of $60,000 to contribute to site acquisition, construction, and/or equipping and staffing
of a new fire station to serve the area. The City's estimate of the cost of constructing and
. equipping the new fire station is $2,000,000. This station is needed whether or not there is
Koll Office Site B
June 26. 2001
Page 15
new development in the area, due to closure of the Orange County Fire Authority station,
and the committee working on the development agreement did not think it was appropriate .
to ask new development to bear the full cost. Although Conexant had originally agreed to a
fee of $500,000, they withdrew that offer prior to the last Planning Commission hearing,
and the issue was not resolved.
4. Payment of Fair Share Traffic fees in the amount of $235,570 per the Municipal Code.
5. Payment of $70,000 to help fund construction of improvements to the MacArthur /Jamboree
intersection per the Traffic Phasing Ordinance.
ASSURANCES TO THE DEVELOPER
1. A vested right to develop the property, at a time deemed appropriate by the developer, under
the General Plan and zoning amendments described in this report, without future reduction
in level of intensity.
An approved development plan, unaffected by future changes in the City's development
standards.
3. No additional dedications or reservations of land beyond those provided for in the project
approvals, conditions, or development plan.
4. No future increases in impact fees, conditions, mitigation measures, or exactions. 0
5. Provision of storm drain capacity by the City to the exterior boundaries of the site.
8. STATEMENT OF OVERRIDING CONSIDERATIONS
Per the California Environmental Quality Act (CEQA), if the project is approved, a Statement of
Overriding Considerations (SOC) must be adopted. The SOC states the reasons for approval in
spite of environmental impacts which are significant and unavoidable. The following impacts have
been so identified:
Traffic:
Traffic generated by the proposed project will contribute to the long -range degradation of
the MacArthur Boulevard/Jamboree Road intersection during the p.m. peak hour, which is
forecast to operate at an unacceptable level of service (i.e., 0.95 ICU/LOS E).
• Traffic generated by the proposed project will contribute to the long -range degradation of
the Jamboree Road/Campus Drive intersection during the p.m. peak hour, which is forecast
to operate at an unacceptable level of service (i.e., 0.99 ICU/LOS E).
.)
Koll Office Site B
June 26. 2001
Page 16
Air Quality:
• Project implementation will result in short-term construction emissions resulting from the
use of construction equipment. Project- related emissions of oxides of nitrogen (NOx) will
exceed the significance threshold established by the SCAQMD.
• Project implementation will result in long -term pollutant emissions resulting from mobile
and stationary sources. Project - related emissions of reactive organic gas ROG) and oxides
of nitrogen (NOx) will exceed the significance thresholds established by the SCAQMD.
Exhibit EIR-4 identifies a number of overriding considerations which offset the above impacts.
Some of these considerations include:
1. The Project will pay several mitigation fees not required of other projects, as identified
under "Development Agreement" on the preceding page. These include, among others, $2
million for traffic mitigation, $112,500 for a planning study for the airport area, and
$60,000 to help construct and equip the new fire station to serve the area. The above
payments are in addition to other fees required by City ordinance.
2. Project implementation will result in a net annual recurring revenue surplus of
approximately $52,000, based on the fiscal impact analysis prepared for the project. As a
result, the project will pay for itself and will not require City funds or resources to provide
• needed public facilities and services.
3. The proposed project will help to achieve several goals and policies articulated in the
Newport Beach General Plan, such as Policy "A ": The City shall provide for sufficient
diversity of laud uses so that schools, employment, recreation areas, public facilities,
churches and neighborhood shopping centers are in close proximity to each resident of the
Community.
9. FISCAL ANALYSIS
A fiscal impact analysis was prepared for the project per Council Policy F -17. The analysis,
distributed to the City Council under separate cover, is available for public inspection at the City
Planning Department. The report's significant findings include:
• The project would generate $133,500 /year in recurring revenues vs. $51,300 for the existing
entitlement on the site: i.e. 5,000 sq.ft. of restaurant and 10,000 sq.ft. of retail use.
• The project would result in S81,700 /year of recurring costs to the City, vs. $23,000 for the
existing entitlement.
• The project's net recurring surplus would therefore be $52,000 /year vs. $28,400 for the
existing entitlement.
Koll Office Site B
June 26, 2001
Page 17
10. AIRPORT LAND USE COMMISSIONREVIEW
On July 27, 2000, the Airport Land Use Commission reviewed the project, including the planned
ten -story office building, and found it consistent with ALUC's Airport Environs Land Use Plan.
MEASURES ANALYSIS (GREENLIGHT)
Statistical Division L4 has a current General Plan limit of 7,824,303 square feet. There is no
General Plan peak hour trip limit. The project will add 235,000 square feet of non - residential
intensity, with 375 a.m. peak hour trips and 285 p.m. peak hour trips. Therefore, two of the three
thresholds to require a vote pursuant to Measure S are exceeded. (This information is not to be
considered in the decision to approve or deny the project.)
PLANNING COMNHSSION RECOMMENDATION
On June 7, the Planning Commission held a public hearing on the applications and the development
agreement and forwarded them to the City Council with a recommendation of approval. The
resolutions detailing the Planning Commission recommendations are included as Attachment 1.
Submitted by:
Prepared by:
SHARON Z. WOOD LARRY N. LAWRENCE
Assistant City Manager
Project Manager
I&Lt J (�/ C`�.f`Y� L.L.
Attachments:
alarming Commission Resolution Nos. 1530, 1531 & 1532
2.
Excerpts from Planning Commission minutes: June 7, 2001, September 7, 2000 and
August 3, 2000.
3.
Draft Traffic Study Resolution.
4.
Draft Resolution Certifying Final Environmental Impact Report as Complete, with
Exhibits "EIR -1 ": Draft Environmental Impact Report No. 158 *, "EIR -2 ": Responses
to Comments on Draft EIR *, "EIR -3 ": Statement of Findings, "EIR -4 ": Statement of
Overriding Considerations, "EIR -5 ": Mitigation Monitoring and Reporting Program,
and "EIR -6 ": Errata Corrections to the Draft EIR.
5.
Draft Ordinance for Approval of Development Agreement, with Exhibit "DA -1 ":
Development Agreement.
6.
Draft GPA Resolution, with Exhibit "GP -1 ": Revisions to Land Use Element Text.
7.
Draft Zoning Amendment Ordinance, with Exhibit "ZA -1 ": Koll Center Newport
Planned Community Text Amendment.
8.
Fiscal Impact Analysis.*
9.
Resolution for project denial
* Distributed separately due to bulk on June 13, 2001. Available for public review at the
City's Planning Department. 0
Koll Office Site B
June 26. 2001
Page 18
0
ATTACHMENT 1:
PLANNING COMMISSION RESOLUTIONS
1530, 1531, AND 1532
L�
. RESOLUTION NO. 1530
A RESOLUTION OF THE PLANNING COMMISSION OF
THE CITY OF NEWPORT BEACH RECOMMENDING
THAT THE CITY COUNCIL APPROVE TRAFFIC STUDY
NO. 119 REGARDING THE EXPANSION OF OFFICE SITE
B IN KOLL CENTER NEWPORT.
WHEREAS, Koll Center Newport Number A, 1900 Main Street, Suite 350, Irvine,
California, has applied to the City of Newport Beach for a General Plan Amendment and a Planned
Community Amendment for "Office Site B" of the Koll Center Newport (KCN) Planned
Community in order to allow future additional development on Parcel 1 of PMB 114/22 -24 and
Parcels 1, 2, and 7 of PMB 181/13 -19; and
WHEREAS, the proposed General Plan Amendment would increase the allowable building
floor area of KCN Office Site B by 250,000 gross square feet, to a maximum of 1,310,898 gross
square feet; and
WHEREAS, the proposed Amendment to the Koll Center Newport Planned Community
• text would increase the maximum allowable building floor area in KCN Office Site B; and
WHEREAS, a traffic study, entitled Office Site B — Koll Center Newport Planned
Community (WPA Traffic Engineering, Inc., March 2000), was prepared for the project in
compliance with Chapter 15.40 of the Municipal Code (Traffic Phasing Ordinance) and
incorporated into the Environmental Impact Report for the project (SCH #99091120); and
WHEREAS, the traffic study indicated that the project will increase traffic on nine primary
intersections by one percent (1 %) or more during Peak Hour periods one year after the completion
of the project; and
WHEREAS, utilizing the Intersection Capacity Utilization (ICU) analysis specified by the
Traffic Phasing Ordinance, the traffic study determined that eight of the preceding nine primary
intersections will operate at satisfactory levels of service as defined by the Traffic Phasing
Ordinance; and
WHEREAS, utilizing the Intersection Capacity Utilization (ICU) analysis specified by the
Traffic Phasing Ordinance, the traffic study determined that one primary intersection,
• MacArthur /Jamboree, presently operates at an unsatisfactory level of service during the a.m. peak
hour and that the project will further impact the intersection unless mitigation measures are
t�
implemented. The traffic study identified the following mitigation measures, in the form of
intersection improvements, the costs of which are to be shared by the project and other projects
impacting the same intersection via mandatory conditions of approval: addition of a second
northbound left turn lane, a second southbound left turn lane and a northbound right turn lane; and
WHEREAS, the above - described improvements will reduce the identified short -range
traffic impacts from the project to a less- than - significant level; and
WHEREAS, based on the weight of the evidence in the administrative record, including
the traffic study, the Planning Commission finds:
a. Construction of the project will be completed within 60 months of project approval;
and
b. With planned intersection improvements, contributed to by the project, the project will
neither cause nor make worse an unsatisfactory level of traffic service at any impacted
primary intersection.
WHEREAS, on August 3 and September 7, 2000 and June 7, 2001, the Planning
Commission held public hearings, at which time the proposed General Plan Amendment and
Zoning Amendment were considered. A notice of time, place and purpose of the public hearing was •
duly given and testimony was presented to and considered by the Planning Commission at the
public hearing.
NOW THEREFORE BE IT RESOLVED, that the Planning Commission of the City of
Newport Beach does hereby recommend that the City Council of the City of Newport Beach
approve Traffic Study 119 based on the weight of the evidence in the administrative record,
including the traffic study.
ADOPTED this 7`h day of June, 2001, by the following vote, to wit:
AYES:
NOES:
ABSENT
2
h,
•
M
C�
Edward Selich, Chairman
Steven Kiser, Secretary
RESOLUTION NO. 1531 .
A RESOLUTION OF THE PLANNING COMMISSION OF
THE CITY OF NEWPORT BEACH RECOMMENDING
THAT THE CITY COUNCIL CERTIFY
ENVIRONMENTAL IMPACT REPORT NO. 158
REGARDING THE EXPANSION OF OFFICE SITE B IN
KOLL CENTER NEWPORT (STATE CLEARINGHOUSE
NO. 99091120).
WHEREAS, Koll Center Newport Number A, 1900 Main Street, Suite 350, Irvine,
California, has applied to the City of Newport Beach for a General Plan Amendment and a Planned
Community Amendment for "Office Site B" of the Koll Center Newport (KCN) Planned
Community in order to allow future additional development on Parcel 1 of PMB 114/22 -24 and
Parcels 1, 2, and 7 of PMB 181/13 -19; and
WHEREAS, the proposed General Plan Amendment would increase the allowable building
floor area of KCN Office Site B by 250,000 gross square feet, to a maximum of 1,310,898 gross
square feet; and
WHEREAS, the proposed Amendment to the Koll Center Newport Planned Community •
text would increase the maximum allowable building floor area in KCN Office Site B; and
WHEREAS, in accordance with C E Q A requirements, a Notice of Preparation (N0P) of a
Draft EIR was filed with the State Clearinghouse, which assigned State Clearinghouse Number
99091120;and
WHEREAS, the NOP and an Initial Study were distributed to all responsible and trustee
agencies and other interested parties for a 30 -day public review period commencing on
September 20, 1999 and ending on October 22, 1999; and
WHEREAS, in accordance with CEQA requirements, a Notice of Completion (NOC) of
the Draft EIR was filed with the State Clearinghouse; and
WHEREAS, the Draft EIR was distributed to agencies, interested organizations, and
individuals by the City. The distribution list is available at the City of Newport Beach Planning
Department; and
WHEREAS, a 45 -day public review period for the Draft EIR was established pursuant to
State law, which commenced on May 23, 2000 and ended on July 10, 2000; and .)
WHEREAS, all comments received during the public
review
period
for the
Draft EIR
were responded to in the Response to Comments document
dated
August
2000,
distributed
separately due to bulk and hereby designated by reference as Exhibit EIR -2 of this Resolution as
if fully set forth herein. All comments and responses were considered by the Planning
Commission during its review of the project and the Environmental Impact Report; and
WHEREAS, on August 3 and September 7, 2000 and June 7, 2001, the PIanning
Comtission held public hearings at which time the proposed amendments were considered.
Notices of time, place and purpose of the public hearings were duly given and testimony was
presented to and considered by the PIanning Commission at the hearings.
WHEREAS, the EIR identifies potential significant impacts to the environment
and certain mitigation measures designed to reduce or avoid these impacts.
NOW, THEREFORE, BE IT RESOLVED that the Planning Comtission of the City of
Newport Beach does hereby find that Environmental Impact Report No. 158, designated by
reference as Exhibit EIR -1 of this Resolution, for the expansion of Office Site B In Koll Center
• Newport (State Clearinghouse No. 99091120) has been prepared in compliance with the California
Environmental Quality Act and the CEQA Guidelines. In addition, the Planning Commission finds
that the EIR adequately analyzes project - related impacts, identifies feasible mitigation measures and
discusses project alternatives. The Planning Commission hereby recommends that the City Council
adopt the necessary of Statement of Findings, Statement of Overriding Considerations, and
Mitigation Monitoring Program per the California Environmental Quality Act and certify
Environmental Impact Report No. 158.
ADOPTED this 7`h day of June 2001, by the following vote, to wit:
AYES:
NOES:
ABSENT
2
l
PW
IM
Edward Selich, Chairman
Steven Kiser, Secretary
•
49
RESOLUTION NO. 1532
A RESOLUTION OF THE PLANNING COMMISSION OF
THE CITY OF NEWPORT BEACH RECOMMENDING CITY
COUNCIL APPROVAL OF GENERAL PLAN AND ZONING
AMENDMENTS AND A DEVELOPMENT AGREEMENT TO
INCREASE THE MAXIMUM ALLOWABLE BUILDING
SQUARE FOOTAGE IN OFFICE SITE B OF THE KOLL
CENTER NEWPORT PLANNED COMMUNITY [GPA 97 -3(B),
ZONING AMENDMENT 905, AND DA NO. 161
WHEREAS, pursuant to Section 65300 of the California Government Code, the City of
Newport Beach has adopted a comprehensive, long -term General Plan for the physical development
of the City; and
WHEREAS, Kell Center Newport Number A, 1900 Main Street, Suite 350, Irvine,
California, has applied to the City of Newport Beach for a General Plan Amendment and a Planned
Community Amendment for "Office Site B" of the Kell Center Newport (KCN) Planned
Community in order to allow future additional development on Parcel 1 of PMB 114/22 -24 and
0 Parcels 1, 2, and 7 of PMB 181/13 -19; and
WHEREAS, the proposed General Plan Amendment would increase the allowable building
floor area of KCN Office Site B by 250,000 gross square feet, to a maximum of 1,310,898 gross
square feet; and
WHEREAS, the proposed Amendment to the Kell Center Newport Planned Community
text would increase the maximum allowable building floor area in KCN Office Site B; and
WHEREAS, consistent with state law and the Newport Beach Municipal Code, a draft
Development Agreement has been prepared in conjunction with the above - described amendments
in order to provide for mitigation of traffic and other impacts of the project and to give the
developer assurances that development under the proposed Amendments can proceed; and
WHEREAS, an Environmental Impact Report (EIR) was prepared in accordance with the
California Environmental Quality Act (CEQA) to address the environmental impacts of the subject
amendments, which EIR was reviewed by the Planning Commission and, by separate resolution,
forwarded to the City Council with a recommendation for certification as complete; and
�1
WHEREAS, on August 3 and September 7, 2000 and June 7, 2001, the Planning
Commission held public hearings, at which time the proposed Amendments and Development
Agreement were considered. A notice of time, place and purpose of the public hearing was duly
given and testimony was presented to and considered by the Planning Commission at the public
hearing; and
NOW THEREFORE BE IT RESOLVED, that the Planning Commission of the City of
Newport Beach forwards the proposed Amendments and Development Agreement to the City
Council with the following findings and recommendations:
General Plan Amendment. The Planning Commission finds as follows with regard
to GPA 97 -3(B):
1. The project consists of the intensification of office development on a project
site that is already designated for and substantially developed in
Administrative, Professional and Financial Commercial use. Since the project
site is located in proximity to residential areas, the additional employment
opportunities resulting from construction of a new 250,000 square -foot office
tower on the site would contribute to a more desirable jobs- housing balance in
the area. Therefore, the project is consistent with Policy A of the General Plan
Land Use Element.
2. The intent of Policy B of the Land Use Element is to establish limits on land
use intensity in order to insure that the City's circulation system operates at an
acceptable level of service. Provisions to implement this policy, such as the
Traffic Phasing Ordinance and development limits, have been incorporated
into the Municipal Code. The proposed project is subject to these provisions
and has been reviewed under them in the EIR. The EIR traffic study indicates
that the proposed project will generate a significant increase in the number of
vehicle trips through major intersections, including MacArthur
Boulevard/Jamboree Road and Jamboree Road/Campus Drive, where no
feasible mitigation measures have yet been identified. However, the project
will provide for both direct intersection improvements and the payment of
traffic mitigation fees. Such fees will be available for the mitigation of
2
impacts at the above intersections when feasible improvements are identified.
Therefore, the project is consistent with Policy B.
3. The site of the new office tower is set back substantially from both MacArthur
Boulevard and Jamboree Road in order to mitigate visual impacts from public
streets. One of the new parking structures will be located close to the
intersection of MacArthur and Jamboree. However, this two -level structure
will be depressed partially below grade and the perimeter of the structure will
be heavily landscaped in order to soften public views. Additionally, the
existing two -level parking structure just north of the existing twin ten -story
office towers will be replaced with a new six -level structure located 200 feet
further back from Jamboree and 50 feet further back from MacArthur than the
existing structure. Per design standards added to the PC text, both new
parking structures will be textured and landscaped to soften their visual
impacts. Therefore, the project is consistent with Policy D of the Land Use
Element.
4. The PC District Plan, i.e. the KCN Planned Community text, contains
extensive landscaping standards for different building heights. The PC text
also contains detailed standards for parking, signs and other development
standards. Therefore, the project is consistent with Policy F of the Land Use
Element.
5. The amendment will retain compatibility between land uses in that it will
allow intensification of office development on a site that is already designated
for and substantially developed in Administrative, Professional and Financial
Commercial use.
In light of the preceding findings, the Planning Commission recommends that the
City Council approve GPA 97 -3(B), consisting of the increase in gross building
square footage allowable in Office Site B as specified in Exhibit "GP -1 ", attached
hereto.
2. Zoning Amendment. The Planning Commission finds as follows with regard to
Amendment 905:
3
' 1 t
a. The amendment is consistent with the General Plan in that it provides for an
increase in square footage commensurate with that allowed by the
accompanying General Plan Amendment.
b. The internal consistency of the Planned Community text will be retained in
that all development square footages and open space acreages have been
adjusted to retain appropriate development and open space percentages.
In light of the preceding findings, the Planning Commission recommends that the
City Council approve Amendment 905, consisting of the amendments to the Koll
Center Newport Planned Community Development Standards specified in Exhibit
"ZA -1 ", attached hereto, subject to the mitigation measures identified in the
Environmental Impact Report and listed in the EIR's Mitigation Monitoring
Reporting Program (MMRP) being made conditions of approval of the project, as
stipulated in Exhibit "ZA -1 ".
3. Development Agreement. The Planning Commission finds as follows with regard to
Development Agreement No. 16:
a. The Agreement will provide for payments by the developer to the City to: (1)
mitigate traffic impacts of the project, (2) help fund preparation of a
comprehensive land use and circulation plan for the Airport Area, and (3) help
fund site acquisition and/or construction, equipping, and staffing of a new fire
station to serve the project and surrounding areas.
b. The adoption of the Development Agreement will not preclude the City from
imposing conditions or requirements to mitigate significant impacts of the
project, provided that the measures are not inconsistent with the Development
Agreement and do not render the project infeasible.
C. The Development Agreement will give the developer assurances that
development under the proposed Amendments can proceed.
d. The Development Agreement is in conformance with the Newport Beach
General Plan, as proposed by accompanying General Plan Amendment No.
97 -3(B).
s
4 .�
. In light of the preceding findings, the Planning Commission recommends that the
City Council approve Development Agreement No. 16, as set forth in Exhibit "DA-
• BY:
MIA
0
1 ", attached hereto.
ADOPTED this 7`h day of June, 2001 by the following vote, to wit:
Edward Selich, Chairman
Steven Kiser, Secretary
AYES:
NOES:
ABSENT:
5
•
ATTACHMENT 2:
EXCERPTS FROM PLANNING COMMISSION MINUTES -
JUNE 79 2001, SEPTEMBER 99 20009 AND AUGUST 3, 2000
0
City of Newport Beach
Planning Commission Minutes
June 7, 2001
Between the hours of Between the hours of
7:00 a.m. and 10:00 p.m. 10:00 p.m. and 7:00 a.m.
Measured at the property line of
'Commercially zoned property: 65 dBA 60 dBA
Measured at the property line of
Residentially zoned property: 60 dBA 50 dBA
27. The Planning Commission may add to or modify conditions of approval to this
Use Permit or recommend to the City Council the revocation of this Use Permit
upon a determination that the operation which is the subject of this Use
Permit causes injury, or is detrimental to the health, safety, peace, morals.
comfort, or general welfare of the community.
28. This Use Permit shall expire unless exercised within 24 months from the date of
approval as specified in Section 20.91.050 of the Newport Beach Municipal
Code.
29. A sign shall be installed within the Texas Deck over the door to the bow
deck that reads. "Emergency Doors Only, Doors to Remain Closed During
Regular Business Hours."
30. Access to the third level bow deck shall be restricted during the use of the
• Texas Deck. A theater style rope shall be placed at the southern end of
Texas Deck between the safety railing and the exterior wall of the Texas
Deck. A sign on the rope that faces north shall be installed that reads. "No
Access." In no event shall the ropes restrict fire safety or exiting
requirements as determined by the Fire Department.
0
31. This Use Permit shall be reviewed by the Planning Commission by January
30. 2002 regarding the use of the entire third level of the Pride of Newport
and the effectiveness of the operational restrictions and conditions of
approval.
SUBJECT: Koll Office Site B GPA and PC Amendment
MacArthur Boulevard /Jamboree Road
(Continued from 4 -5 -01)
• General Plan Amendment No. 97 -3 (B)
Amendment No. 905
DRQF Env rontmental No. 11
Impact Report No. 158
• Development Agreement No. 16
Review of a General Plan Amendment and Planned Community Amendment
to allow an additional 250,000 gross square feet of office use within Office Site B
of the Koll Center Newport (KCN) Planned Community. The amendments will
provide for the construction of a ten -story office tower.
20
•Il 1191 1
Item No. 3
GPA 97 -3(B)
A No. 905
TS No. 119
EIR No. 158
DA No. 16
Recommended for
approval to City
Council
9
City of Newport Beach
Planning Commission Minutes
June 7, 2001
DRAM 0
INDEX
Chairperson Selich noted that the applicant had requested a continuance to
negotiate a development agreement with the City, which has been going on
since September 2000. We have had a number of hearings and study sessions
on this project and have thoroughly reviewed the Environmental Impact Report
and other related documents. We are picking up where we lett oft about a
year ago with the applicant now having a Development Agreement before us.
Mr. Larry Lawrence, consultant for the City, gave a brief summary on the
Development Agreement and Statement of Overriding Considerations. The
Development Agreement is attached to the staff report and provides certain
benefits to the City to mitigate the impacts of the project. These requirements
could not be imposed on the project absent such an Agreement. An example
of the benefits include
• The payment by the developer to the City of traffic mitigation tee of $8
per square toot of additional entitlement. (2 million dollars to Lund long -
range traffic improvements to intersections and roadways impacted by
the project).
In return for that, the developer gains a vested right to develop the property
under the General Plan and Zoning Amendments without future reduction of
intensity and with no future increases in project tees or land dedication
requirements.
The Environmental Impact Report identities certain significant unavoidable
impacts in air quality and traffic at intersections at MacArthur
Boulevard /Jamboree Road and Jamboree /Campus Drive. These are
cumulative impacts that are increased by the project that are significant and
unavoidable. It the project is approved, a draft statement of Overriding
Considerations has been prepared and attached to the staff report. The
statement identities certain benefits of the project, which can be deemed to
override those unavoidable impacts. Per State law, this statement must be
included as part of any approval of the project. Because of the significant
project benefits, staff has prepared a draft Commission resolution
recommending approval of the project. Because of impacts, staff has also
prepared a resolution recommending denial.
Commissioner Kranzley, referring to page 9 of the staff report, asked about the
grade separation and the significant costs.
Mr. Edmonston answered that there were two potential mitigation measures
identified. The grade separation, which staff had a preliminary design
performed and rough estimates in the 15 to 20 million - dollar range, was the
project that was considered infeasible due to costs. The second alternate
mitigation that was identified was adding a fourth southbound lane on
Jamboree from East or North of the MacArthur intersection continuing south
over the freeway and ending at Bristol Street south. The fourth lone would be
added and continue south on Jamboree over the 73 Freeway dropping at
Bristol South. We have applied for funds from OCTA to do more detailed
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Planning Commission Minutes
June 7, 2001
preliminary engineering and environmental planning. Those funds would not
be received until the fiscal year 2004 -2005. With the pending General Plan
update we will analyze that before that time, but currently this is the schedule.
Ms. Temple added that she had received a query on how the approval of this
project could potentially impact the processing of the Conexant project with
its accompanying EIR and Traffic Study. The approval of a significant project
of this nature would affect the potential future processing of Conexant
because the environmental setting will have changed because of the
approval. Additionally, the age of the analysis in the documents has gotten to
the point where updating and bringing them up to whatever time frame the
project starts to move would be required. Staff believes it is likely that the EIR
would need to be re- drafted, not totally, but probably the traffic study itself
would need to be updated to current data and certainly a new cumulative
impact analysis would have to be done for that project, which would include
this project as a reasonably foreseeable future project. That would then
require a recirculation of the EIR and a new review period. Getting this project
out in front of potential consideration of Conexant will change the situation for
their processing.
Public comment was opened.
Tim Strader, 3801 Inlet Isle, partner of the Koll Center, the owner of this
particular property. One other thing has happened since September of last
year and that is the passage of the Greenlight Initiative and the adoption of
Greenlight Guidelines by the City Council. We have attempted through the
Development Agreement to respond to the issues raised by this Initiative to
provide additional fees to the City in the amount of 2 million dollars plus
$112.000 for a planning study in the airport area and another $60,000 for a fire
station in the airport area. In addition to the fees that were originally
contemplated by the City, our fees will be in excess of 3.8 million dollars to
assist the City in ameliorating whatever problems exist. The other point I would
make is the traffic at the airport is a regional issue that involves other cities and
will involve the necessity of the City of Newport Beach taking a leading role to
identify the solutions. Again, this 2 million dollars will give the City this
opportunity. We believe this project will be a solution to the traffic issues at the
airport, because if the project is not approved, the City would not get the 2
million dollars that it can use towards a solution. He then referred to a three -
dimensional model for review by the Planning Commission and noted that the
architect, Mr. Pat Allen was present to answer any questions. He stated that
he has reviewed the staff report and the Development Agreement and is in
agreement with them.
Barry Eaton, 727 Belis Street spoke as the Chairman of the Koll sub - committee
of EQAC. You have a copy of our comments in writing. I noted that we have
consistently participated in the environmental process for this project
commenting on the NOP and EIR and responses to our comments. A couple
of new comments we would like to make on the recent Development
22
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DRAFT
City of Newport Beach
Planning Commission Minutes
June 7, 2001
INDEX
Agreement are:
• Reversal of order of Conexant and Koll Center - the burden now falls
on the Conexant project to look at those cumulative impacts that were
to have been addressed by Koll Center.
• The Koll Development Agreement becomes the precedent setting
agreement. The traffic fee set and agreed to by the City specifies $8 a
square foot instead of $10 as set by the Conexant project. There is no
public record why that changed.
• The EIR for Koll stated that if the fire station on the airport closed, that
would be a significant impact. That station has closed. The City has
opened its own fire station at Santa Ana Heights and yet the City's
position with regard to Conexant was that their contribution ought to
be $500,000. That has been reduced to $60,000 for Koll, which even
taking into account the difference in the size of the projects is stifl a 76%
reduction. We think this ought to be established in the record why that
happened.
• The EIR did note a temporary but significant impact, which was the
dislocation of the existing parking when the construction is under way.
That can be up to 700 parking spaces. The Mitigation provided stated
it would provide an interim parking plan and we do not think that
meets the requirements of CEQA. The Commission ought to have some
say on how this problem is to be solved.
Chairperson Selich, noting that he had worked on the Development
Agreement committee, answered that the $10 a square foot for Conexant was
a staged fee over time in the future. It was never resolved as to what it was
going to be, they were looking at 60 months and we were looking at 24
months to pay that fee. The $8 a foot was arrived at by net present value of
the far end of the Conexant timing; we far exceed in net present dollars with
what we are getting from Koll. It is a more advantageous amount of money
for us because it is a one -time payment fee. In terms of the fire station fee,
that was still somewhat a moving target in the negotiations. I don't think we
ever finally resolved from the negotiating committee's standpoint, the final fee
for Conexant.
Commissioner Tucker, noting that he also had worked on the Development
Agreement committee, added that on the fire fee it wasn't that Koll was
paying too little; it was that Conexant had offered a lot more as part of its
incentive. The Koll number is probably closer. On the development fee it was
a duty of Koll to pay it all, while under the agreement with Conexant it was
predicated upon the City adopting a program by the airport that had an
actual fee amount; in order to adopt the program we had to figure out what
the improvements were going to be and do it within a time frame. We
wanted it to be a five -year time frame; Conexant wanted a three -year time
frame. We felt it could not be done within three years and whether we could
get it done at all was in question. Therefore, the $10 fee may never have been
paid. The Koll arrangement was for less, but when they pull a building permit,
whether or not we ever did adopt a program, the money would be due and
23
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City of Newport Beach
Planning Commission Minutes
June 7, 2001
the City would have it for future purposes. I was personally strongly in favor of
cash now, rather than cash later. The real issue is what Koll is offering to pay is
a fair amount and what Conexant was offering to pay was further incentive.
Public comment was closed.
Commissioner Tucker noted that during the meeting of September 71^, 2000 in
the minutes he had asked about getting more specificity in the project
documents concerning the design of the parking structure at
Jamboree /MacArthur. The response to his comment from Mr. Lawrence then
was, 'That we were still at a non - project specific level and this had to do with
some wording in the PC text. The plans you see are conceptual; we have
added provisions requiring mitigation of the structures. We could probably
add a sentence that would say that the parking structure would have to
substantially follow the existing surface grade that is out there now.' I see the
PC text includes this in the fourth bullet.
Mr. Lawrence added that there is an added sentence that states that new
parking structures in that Site shall be submitted by the developer to the
Planning Commission for discretionary review and approval.
Commissioner Tucker indicated that satisfied his concern at the earlier hearing.
He then noted that we went through this project in detail. We did not find a
basis at that time for a State of Overriding Considerations for a couple of traffic
impacts. The applicant has come back and negotiated a Development
Agreement and is offering to put up a substantial amount of money to address
these issues. I feel at this point that the applicant has carried the burden to
attract my vote. I have never had a problem with the project; it was just that
the project needed to help remedy any of its impacts. They have done that so
I will make a motion.
Motion was made by Commissioner Tucker that the Planning Commission
adopt:
Resolution No. 1530 recommending City Council approval of Traffic Study
No. 119, and
Resolution No. 1531 recommending City Council certification of
Environmental Impact Report No. 158;
Resolution No. 1532, recommending City Council approval of General Plan
Amendment 97 -3(B), Zoning Amendment 905, and Development
Agreement No. 16.
PC text page 3, delete the word, 'discretionary'.
Commissioner Kranzley commended both Chairperson Selich and
Commissioner Tucker on the work they did to get the Development Agreement
done. It was significant and important to the City of Newport Beach.
Chairperson Selich noted that in the Mitigation Measures we are requiring the
developer to make some significant pro -rata contributions to traffic
24
INDEX
nl
City of Newport Beach
Planning Commission Minutes
June 7, 2001
DRAFT is,
INDEX
improvements to the City of Irvine. Has the City of Irvine ever required one of
their developers to make improvements on streets they are impacting in
Newport Beach?
Ms. Temple answered that when the City of Irvine approved the Bonita Canyon
Planned Community project, they did contribute to the improvement at
Jamboree /Bison Road intersection. It was approximately $15,000 to $20,000.
Ayes:
McDaniel, Kiser, Agajanian, Selich, Kranzley, Tucker
Noes:
None
Absent:
Gifford
fff
,SUBJECT: Coastal Bluff Development Policy
(Approved & forwarded to City Council from
04 -05 -01 Planning Commission Meeting)
(Referred back to Planning Commission for further review
and revision from 04 -24 -01 City Council Meeting)
Amendment No. 908
Consideration of several options to implement coastal bluff development
regulations and procedures with the intent to implement the policies of the
General Plan and Local Coastal Program Land Use Plan.
Ms. Temple noted that this staff report is presented as a discussion document with
no suggested action at this time. Staff is looking for guidance from the Planning
Commission whether or how to proceed with this item.
Chairperson Selich stated that the Planning Commission recommended a zoning
amendment to the City Council. The City Council did not feel comfortable
moving ahead with that amendment. They felt that the houses under
consideration were not enough of a threat to move this through quickly without
going back and carefully determining some criteria and they referred it back to
the Planning Commission for additional discussion and study. This is not a public
hearing on the Zoning Amendment; it is a Planning Commission discussion on the
criteria that staff has presented for us on various ways to analyze this. We are not
going to be taking any action on this tonight. I would say that my feeling on this
after reading the staff report is that it is an issue that we have pointed out to the
City Council that we have ourselves a conflict between the General Plan and
the Zoning Ordinance. What comes first, and how do we get this resolved? We
can do it one of two ways. We can form a subcommittee of the Planning
Commission to deal with this and do further analysis. The other way to deal with it
is to incorporate it into the General Plan study that we are doing right now. We
have a major effort underway and it would be my preference to deal with it
through the General Plan and the amendment to the Coastal Plan and try to get
this policy and criteria clarified through that process. There would probably be
more discussion than if we just did it through a Planning Commission
25
Item No. 4
Amendment No. 908
Referred to General
Plan Update
Committee for study
0
•City of Newport Beach
Planning Commission Minutes
September 7, 2000
SUBJECT: Koll Office Site R GPA and PC Amendment
• General Pl.in Amendment 97 -3(B),
• Zoning Amendment 905,
• Traffic Study No. 119, and
• EIR No. 158.
Review of a General Plan Amendment and Planned Community Amendment
to allow an additional 250,000 gross square feet of office use within Office Site B
of the Koll Center Newport (KCN) Planned Community, providing for future
construction of a ten -story office tower.
Assistant City Manager, Sharon Wood reported that in addition to the
environmental information with the staff report, the one new piece of information
since the last hearing is an addition to the PC text to address the Planning
Commission's concern about the visual impacts from the parking structure.
Additionally, there is a response to comments on the EIR and in particular the
traffic impacts. She then introduced the following representatives of the City on
this issue:
• Larry Lawrence, the staff planner on the project;
• Keeton Kreitzer, the preparer of the Environmental Impact Report
• Wes Pringle, the traffic analysis
• Terry Austin from Austin Faust Associates, which is the firm that did the traffic
modeling
Continuing, she noted a memorandum that was distributed from Robert Hawkins,
the Chairman of the Environmental Quality Affairs Committee. She noted that
the usual practice would have been for EQAC to review the responses to
comments before this hearing and make their recommendations on the EIR to
the Planning Commission. However, due to the pace this project was moving,
staff failed to send those responses to members of the EQAC sub - committee, so
they have not had a chance to look at them. EQAC is requesting that this item
be continued to allow time for review.
Terry Austin, Austin Faust Associates, noted that he has been involved with the
City's traffic modeling for ten years. He noted the following information to help
evaluate the traffic data in this EIR; traffic modeling and things that can happen
that are counter intuitive.
• Modeling - historically has been a prediction of the average daily trips on
different roadway links. Over time we have refined those procedures until
today we are asked to look twenty years ahead and predict how many
vehicles are turning left at a given intersection during the p.m. peak hour. We
are asked to do this with a plus or minus 10 vehicles an hour, recognizing that
if we counted that same intersection yesterday and today there is probably a
difference of 100 vehicles an hour. Drivers do not always do the same things
. on consecutive days making it hard to bring that level of precision into the
traffic modeling. What tends to happen as we refine our procedures, is that
INDEX
Item No. 1
GPA 97 -3(8)
A 905
TS No. 119
EIR No. 158
Continued to
10/19/2000
City of Newport Beach .
Planning Commission Minutes
September 7, 2000 INDEX
the demand for data and accuracy always seems to be one step ahead.
• Counter intuitive - we all have ou: own perception while driving out there of
what is out there and why it is happening. When you get traffic data from a
traffic model that is counter intuitive, our natural reaction is to say that the
model must be all messed up, no good and is useless because it is not doing
the right thing. There are cases when traffic models do things that are
counter intuitive. A first aspect is where a traffic model is making a realistic
simulation of the real world, but it is not immediately intuitively obvious to us
what is happening. The second is when the model is doing an imperfect
simulation of the real world. There are certain limitations on what the science
of the traffic modeling can do and it will sometimes come up with imperfect
simulations of what drivers are doing out there.
• Travel pattern changes over time - a .traffic model looks twenty (20) years into
the future. Typically, we look at a change in land use and how the world of
traffic evolves over that twenty years either in relation to that project being
there or not being there. What happens over that period of time, people
change their traffic patterns in relation to that project versus not that project.
Looking in a traffic report at the difference in traffic between with that project
or without, why is there a reduction of traffic on that roadway even though
you have a project versus a no project? The answer is that it is not a
reduction, traffic has increased on all the roadways differently if we have the
•
project versus not having the project. So you get large increases on some
roadways, smaller increase on others but when you compare the two twenty
years from now, there will be a difference. Sometimes that difference is
negative, it is not a reduction; it is just gone there on a different path over
time. The model is trying to say, *here is the world that we see at twenty years
from now with this land use or without this land use'.
The more difficult issue to deal with is the imperfect simulation of the real world.
We are trying to predict twenty years ahead and tell you how many vehicles are
turning left at that intersection. We are doing this through mathematics and
predicting human behavior. One of the things we know that people do when
they drive is they're sensitive to the amount of traffic on a roadway. For example,
the route you take from A to B at 5 a.m. on a Sunday morning may not be the
same route that you take at 5 p.m. on a Friday. You understand when you might
want to avoid an intersection. We try to get the model to do exactly the same
thing. What we work with in the model is as we put traffic on a roadway, we try
to make it sensitive to other traffic and it will move to a parallel road if it has to.
This is where we get an example that is applicable to something like
Koll /Conexant.
Let's say we have the traffic model run with a certain project and we look at a
certain roadway and we build the traffic up and it reaches a trigger point that
says the parallel route is a little faster. I am going to shift some traffic over there,
maybe 2 -3 %, perhaps 50-60 vehicles. It makes sense; this is what drivers would do.
Now we do the other traffic model run, have which
•
perhaps a smaller project,
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•City of Newport Beach
Planning Commission Minutes
September 7, 2000
doesn't quite reach that trigger point. It doesn't shift those 50 vehicles over to the
other route. What is the result? This r.;
City of Newport Beach •
Planning Commission Minutes
September 7, 2000 INDEX
impacts that are significant and nqt considered mitigatable to a level of
insignificance. One of those is •�affic at the identified intersections of
Jamboree /Campus and Jamboree /MacArthur, because the additional study on
the grade- separated improvement did not seem feasible. The other one is air
quality because of the cumulative impacts of any major development. We have
not developed the statement of overriding considerations in consideration of
what the Planning Commission's recommendations will be to the City Council.
Mr. Edmonton added that in the Traffic Study the City had a study done to see
what it would take to build a grade separation at the intersection of
Jamboree /MacArthur. Another issue was an additional lane on Jamboree that
would continue over the 73 Freeway and that would require the widening of the
existing bridge structure. Neither of these have been identified as specific
mitigation measures because it is still early in the review and not formally looked
at or adopted by the City Council as part of the General Plan.
Commissioner Tucker asked about the problem traffic areas identified as the
long -range traffic problems. As I understand it, the long range means the existing
traffic plus the project plus the County numbers for 2020 plus our General Plan
buildout. Cumulative in some jurisdictions is not defined as nearly that
cumulative. Where did our definition come from?
•
Mr. Edmonston answered that in this case the cumulative is based on the
General Plan level analysis so it does look at the build out of the City's General
Plan. Because we are more developed than the rest of the County, we have
traditionally assumed that our build out would occur in about a twenty -year time
frame' The data from the County that has been available to date has been
based on just a twenty -year projection. Therefore, we are looking at 2020 from
the County and full buildout of the existing General Plan plus build out of the
proposed project. Where it came from I don't know the exact origins, but it has
been that way for a long time. It is a methodology that the previous Councils
have used when looking at both major and minor General Plan amendments. It
was used under the CIOSA development proposal, and used back in 1988 when
the last overall review of the Land Use and Circulation Elements were considered.
It has been used consistently quite a while. I don't know of any specific policy
that addresses it.
Commissioner Tucker noted that in some jurisdictions, the cumulative is the
existing traffic, plus project, plus projects that have been proposed. I wonder
why our definition is so different. Under the CEQA guidelines it is within the
purview of something that could be defined as cumulative, but I was just
wondering if the lead agency ever bothered to define what cumulative meant.
Continuing, he noted that staff had not prepared a statement of overriding
considerations. Under guideline Section 150938, a statement of overriding
considerations, if there is one that is going to be adopted, has to be supported
by substantial evidence in the record. Are we going to be hearing that from staff
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City of Newport Beach
. Planning Commission Minutes
September 7, 2000
or the applicant?
Mr. Lawrence answered that it would have to come from staff and we have not
given that yet.
Chairperson Selich noted that in going through these documents, he had
discussions with staff. The way our City has approached the statement of
overriding considerations, the Planning Commission approves the resolution with
the reference to the statement of overriding concerns, but they are developed
between the Planning Commission hearing and the City Council hearing. The
Council will adopt them relying on the facts that are presented at the hearing to
prepare those.
Mrs. Wood answered that was the same procedure followed for the recent
consideration for the Dunes Resort Hotel. We relied on facts that were in the staff
report, facts brought up at the public hearing, comments that the Planning
Commissioners had made and then the statement was prepared in time for the
Council meeting.
Public comment was opened.
Chairperson Selich asked the applicant to address the issue of a Development
Agreement, why they do or do not wish to do one as well as to present any
evidence to the Commission to support making a finding of overriding
consideration on the three items identified in the EIR.
Tim Strader, 3801 Inlet Isle, partner in Koll Center Newport, the owner of the
property that is the subject of this hearing. We have provided the Commission
with information at previous hearings. I am taken aback by the request of the
EQAC for a continuance because we have been processing this application
since 1997. This has been professionally studied by staff and people who had the
opportunity to review the EIR on information specifically applicable to this
project. Under CEQA we are involved in a fact - finding process. As a decision -
maker, the Commission looks at all the information and comments presented and
you weigh them and come up with a decision. I am opposed to a continuance
for two weeks because I will be out of the country. I believe the EQAC people
can adopt additional comments and send them on to the Council if the
Commission decides to make a decision tonight. On the issue of a development
agreement, our project is different than the Conexant project. We have used a
development agreement when we had major projects that were going to be
developed over a period of time. If this was a master plan of vacant land over a
five -year period then we would want a development agreement because of all
the uncertainties. In this particular case, we are an infill project. It is a single
building, If we do get approved, our plan is to immediately have the plans
drawn by the architect and go to development because the market demand is
out there. From the standpoint of doing a development agreement, it is not
something that we ever approach on a single building development project.
INDEX
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City of Newport Beach
`. Planning Commission Minutes
September 7, 2000 INDEX
The Canexant project is to go aver a periad of five years and provide
opportunities to house employees as `heir business grows in the area. Looking at
all the information in the EIR and the comments, you will see that our project is
doing a lot of mitigatian. We are happy to do that mitigatian because there are
things that can be done to improve the city streets. It has been difficult far us to
Iaak at the worse case analysis of the traffic model because we are not
necessarily in agreement that the intersectian of Campus /Jambaree can not be
mitigated. We think it can be with an additional right turn lane an Campus
toward the university. It is stated in the university's EIR that before any
development occurs, they must go to the City of Irvine and they must mitigate
whatever traffic will be generated. I think that same mitigatian will occur at that
intersectian, but again, haw do you present that when you are using a traffic
made[ that has information in it that talks about a certain definition of what is
cumulative. Over a twenty year periad I have seen lots of things happen that
were never predicted. This is not an exact science and the traffic model is a taal
to be used by the planners to analyze the impacts of the project. We have
brought an exhibit because of the concern about what the parking structure at
the intersectian of Jambaree /MacArthur would Iaak like. (Distributed exhibits)
Pat Allen, project architect 1230 Devon Lane referencing the exhibit an the wall
noted the current site /parking condition and the proposed site /parking condition
at MacArthur Blvd. And Jamboree Road. The exhibit showed the crass section •
With one level built underground.
Mr. Strader noted that they are happy to assist in reducing the visual impact of
the parking structures. He then gave a history of the proposed project. He then
noted that from the standpoint of the statement of overriding concerns, there is a
myth that office buildings do not pay for themselves. A fiscal analysis impact has
been prepared by Stanley R. Hallman, dated August 141h, which states that this
project will provide the City $51,878 every year. Additionally, projected one -time
fees and charges after build out will amount to $596,750. If we are to have a true
balanced City with residential, retail, industrial and affice /cammercial there has
to be a place in the City where you can build an office building. This particular
project is an the easterly boundary of the City in the airport area, surrounded by
the Cities of Irvine and Casta Mesa and the County. The Irvine Business Complex,
a 4,000 -acre piece of property in the City of Irvine, surrounds that particular area.
I made a presentation to the City Council at a study sessan two weeks ago. I
painted out that we are essentially a small part of the regional traffic issues that
occur around the airport. The City of Irvine as apposed to the City of Newport
Beach uses a level of service E in the Irvine Business Complex. In Newport Beach,
we use a level of service D. The difference between those two levels of service is
approximately a 10% increase. The intersections during peak hours can carry 10%
mare traffic if you utilize that level of service. We can not ask you to Iaak at this
and change it to level of service E; however, if you did many of these problems
might go away. In the City of Irvine there are projects being approved with a
level of service E that impact the traffic an the intersectian specifically
Jambaree /Campus and Jambaree /MacArthur. There is going to be growth in
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City of Newport Beach
Planning Commission Minutes
September 7, 2000
the County, State and City of Newporf,Beach. There must be a place for people
to locate their businesses and a place where jobs can be brought into the City. I
believe that a couple of statements of overriding concerns would be the
economic benefits presented by this project, and the balanced plan in the
General Plan of Newport Beach to have a place where businesses can locate
and jobs can be created in the City. We understand that we have to live with
the process as we find it and are prepared to do that. We are prepared to do all
the mitigation. Even though we may disagree with some of the assumptions that
are utilized in the study, we believe it is a very valuable tool that should be used
by the decision -maker and it is toy you to make the decision whether it is
appropriate to have an office building in the city out in the airport area based on
all the facts in the EIR. We have brought a three dimensional model that shows
how the parking structures would relate to the new office building.
Commissioner Tucker asked about the fiscal impact analysis. He asked how the
fiscal benefits of this project would be any different than five 50,000 square toot
buildings built elsewhere in the airport area?
Mr. Strader answered that the reason this occurs is because this is an intill project.
Essentially all the services ore being provided by the City, there are no
incremental services being provided. The City is providing those services today
and will continue to provide them tomorrow. There will not be an additional cost
to the City it another building is built there whereas it you build five buildings in
another area of the City that was vacant, you would have additional City
services that would need to be provided.
Commissioner Tucker noted that the five 50,000 square toot buildings would also
be in till buildings.
Commissioner Tucker asked the architect to confirm that the visual teel of the
project at Jamboree /MacArthur is going to end up being the same throughout
the length of the parking structure although this structure covers one place in the
profile. People driving along MacArthur who see the meandering landscape
and mature trees will continue to see that.
Mr. Allen answered that was correct. The profile shown here will occur the whole
length of the tall in elevation and parallel the existing parking lot.
Commissioner Tucker noted that he does not see defined in the conditions how
this two -story structure will look. We have provisions that whatever you can see
looks nice, but there is nothing in a condition that says the profile that the
applicant has provided is going to be the profile the structure will have. Is that
something we con include in a design feature in the PC text?
Mr. Lawrence answered that in exhibit ZA -1, which is the actual wording of the
PC text amendment we have tried to address design issues to the degree we
can at this level. We are still at a non - project specific level; the plans you see are
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Planning Commission Minutes
September 7, 2000 INDEX
conceptual. We have added provisions requiring mitigation of the structure. We
could probably add an additional aentence or two that would say that the
parking structure nearest Jamboree /MacArthur would have to substantially follow
the existing surface grade that is out there now.
Commissioner Tucker requested that the staff do so.
Commissioner Gifford noted that in the staff report the fact that we are talking
about a possible grade separation at Jamboree /MacArthur if it turned out to be
a mitigation would that be part of your responsibility?
Mr. Strader answered that they would be happy to pay their fair share of that
mitigation measure.
Public comment was closed.
Chairperson Selich commented that this is a good project and would be a great
benefit to the City; however, we have a timing issue. There is planning that needs
to be done in the airport area. We know the Land Use and Circulation Element
are out of balance out there, there is roughly some 600,000 square feet under the
existing General Plan left to be built. There are a number of intersections in the
Circulation Element that do not support the square footage in the existing
General Plan. Reference has been made that LOS E would solve a lot of
problems, that is true it would help, but looking at the Circulation Element many if
not all those intersections are actually being projected to run out at LOS F in the
long range projection. To me, to approve a General Plan amendment out there
right now without having a Circulation Plan, makes this imbalance worse. I could
support this project if the applicant was proposing a Development Agreement as
we have been discussing with Conexant and that is not the case. Therefore I can
not support the project. In addition to looking at the long range impacts there is
the TPO problem and there is a lot of property with remaining General Plan
entitlement left to develop that is not developed. If we approve this project, we
essentially suck up their TPO capacity with this project and so they do not have
the ability to use their existing entitlement. Again, this relates back to having
more circulation improvements in the area. We are looking at this at a General
Plan level, which is really a policy level. It is not something that we have to make
findings of fact like we do on Variances and Conditional Use Permits, etc. This is a
policy as to what we want to do out there. To me, to allow additional square
footage to occur in this area without having something that insures that we are
going to have circulation improvements connected to the project, I do not see
how we can do it now. If there was a plan developed for that area with
circulation improvements on the plan and we had some kind of fee program set
up that would be very easy to deal with. We don't have that right now. I would
be willing to support the project if we had a development agreement and there
was a fee made to the City to take care of circulation improvements in the future
to a plan that would be developed. I could support it because I do think it is a
good project, but given the way it has been presented, I don't feel that way. This
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September 7, 2000
will offect onything in the oirport oreo thot onybody brings to us in terms of o
Generol Plon omendment. It ge s to be o volue judgement on these
omendments. If someone come in with 2500 squore feet, you could probobly
support doing it; 25,000 squore feet moybe; 250,000 squore feet is pretty tough to
support odding thot much squore footoge with the imbolonce we hove in the
circulotion system. Looking of it from the environmentol impoct and troffic
specificolly we hove two intersections thot we would hove to moke stotements
of overriding concerns on. Agoin. I con not find to certify the EIR with those
stotements of overriding concerns unless there wos o Development Agreement
thot hod o troffic fee like we ore proposing on Conexont ossocioted with it. Thot
would provide the justificotion for moking the stotement of overriding concerns,
but I don't think thot the evidence presented by the opplicont or by onybody in
the public heorings is substontiol enough to moke the stotement of overriding
concerns from on environmentol stondpoint. The Development Agreement
would from the Generol Plon stondpoint os well os the EIR stondpoint in being
oble to collect o fee from this project thot would go into o fund for future
circulotion improvements in this oreo thot would be required and developed os
port of o future plonning effort. It is o timing issue and we get good projects thot
come into the City and moybe the stole of plonning in on oreo is not reody for
the project yet and thot is the purpose of o Development Agreement. It ollows
the developer to move oheod with the project, the City gets certoin benefits
from the Agreement and is oble to go on with the plonning and the developer is
oble to go ahead and do his project.
Motion wos mode by Choirperson Selich to deny the Generol Plon and Zoning
Amendments to increose the moAmum ollowoble building squore footoge in
Office Site B of the Koll center Newport Plonned Community. (GPA 97 -3 (B) and
Zoning Amendment 905 in occordonce with Resolution 1524 os omended on
porogroph five to reod, 'Whereos, on Environmentol Impoct Report (EIR) wos
prepored in occordonce with the Colifornio Environmentol Quolity Act (CEQA) to
oddress the environmentol impocts of the subject omendment, which EIR wos
reviewed by the Plonning Commission. I om not proposing to Coke ony oction on
the EIR to opprove it, os we do not hove to opprove on EIR to deny o project. I
would moke the some finding on the Troffic Study. I did confer with the City
Attorney on the procedure for doing this and I wos odvised thot would be the
proper woy to do it, if we Coke this oction I om proposing. Bosicolly, we would not
opprove either one of those resolutions and only opprove the resolution denying
the project.
I will open this up to discussion by ony Commissioner.
Commissioner McDoniel stoted his support of the motion.
Commissioner Kiser clorified with stoff thot the opplicont stoted he would be
hoppy to porticipote in ony foir shore fee for grode seporotion of
Jomboree /MocArthur. If there is no Development Agreement, how would thot
be corried out?
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Planning Commission Minutes
September 7, 2000
Ms. Wood answered that it could not 5e without a Development Agreement.
Commissioner Agajanian stated his support of the motion.
Commissioner Gifford supported the motion.
Commissioner Kranzley supported the motion stating he could not support a
statement of overriding consideration. I understand there is an additional $52,000
of annual revenue to the City, but when you take out the entitled fees that the
applicant would have to pay if he built out to his entitlement it is really only a
difference of about $23,000 a year.
Commissioner Tucker noted his support,of the motion. He questioned if this is a
type of motion where we could add to deny it without prejudice or is it something
that is not legally doable with the General Plan Amendment? The reason I ask
that is I agree that there needs to be places in town to put office buildings, better
the airport than some other locations. The project might find its way back to us at
some point and I don't know if this would make any difference or not in terms of
timing.
Mr. Strader stated that if there is going to be a denial of the project, he asked for
a continuance in order to negotiate some type of a Development Agreement
With the City. If that is something that seven members of the Planning
Commission tell me is a condition to getting approval then that is something I
would like to talk to the City about. We have been here for three years and have
spent over $250,000 in getting to this point. I would like an opportunity to
negotiate in good faith with the City.
Chairman Selich stated he does not have any problem with a continuance for
negotiating a development agreement, nor did any other of the Commissioners.
Motion was withdrawn.
Substitute Motion was made by Commissioner Kranzley to continue this item to
October 19, 2000. He also asked for additional information from staff on the
MacArthur /Jamboree grade separation.
Ayes: McDaniel, Kiser, Agajanian, Selich, Gifford, Kranzley and Tucker
Noes: None
Absent: None
UBJECT- Cowan Duplex (Jay Cowan, applicant)
3030 Breakers Drive
ante No. 1236
• Modi is ornN 5049
Request to construct a new 6800 square foot duplex, whit xc�edS the 24-
11
INDEX 0
Item No. 2
Variance No. 1236
Modification No.
5049
Continued to
/ 1,
.City of Newport Beach
Planning Commission Minutes
August 3, 2000
SUBJECT: Koll Office Site � GPA and PC Amendment
• General Pl.in Amendment 97 -3(B)
• Zoning Amendment 905
• Traffic Study No. 119
• EIR No. 158
• Planned Community Amendment
To allow an additional 250,000 gross square feet of office use within Office Site B
of the Koll Center Newport (KCN) Planned Community. The amendments will
provide for the construction of a ten =story office tower.
Public comment opened.
Timothy L. Strader, 3801 Inlet Isle, Corona del Mar spoke as a partner in the Koll
Center Newport No. A, which is the owner of the residual land at Koll Center
Newport at Jamboree and MacArthur. He stated that they filed this general
plan amendment in 1997 and have now reached the point where the
environmental impact report has been circulated, comments received and
staff is in the process of putting together a response to those comments. We
were here for a study session a month ago, and as a result present to you
• tonight a brochure that answers some of the questions that were raised at that
meeting.
Pat Allen of Langdon and Wilson referred to the exhibit as Mr. Strader
continued with his presentation.
Mr. Strader noted the following:
• Proposing a ten story office building adjacent to the two existing ten story
office buildings formally known as Security Pacific Plaza.
• The two existing ten story office buildings are now owned and occupied by
Conexant.
• At the rear of these two buildings is a two -story parking structure.
• The proposal is to tear down that parking structure and install a two -story
structure at the intersection of Jamboree and MacArthur. Referencing the
last sheet in the brochure, he noted the cross section depiction of what that
two -story structure would look like driving by the project.
➢ Landscaped berm along MacArthur.
Parking structure will be indented into the ground so that the view from
MacArthur will be similar to the existing view.
• Plan to demolish the existing two -story structure at the rear of the building
and commence construction of a six -story parking structure that will be
adjacent to the existing Conexant buildings.
• Conexant is attempting to create a campus like setting for their entire
project. By moving the structure back from Jamboree, the vista is opened
from the existing Conexant property to their two buildings. The parking
. structure will be moved back to allow for a pedestrian connection directly
to the building. The access off Jamboree will come into the property and
ILf1 1
Item No. 3
GPA 97 -3 (B)
A 905
TS No. 119
EIR No. 158
Continued to
09/07/2000
City of Newport Beach
•
Planning Commission Minutes
August 3, 2000
INDEX
Will allow access to the left into pe parking structure or the right into the
existing parking lots at Conexant.'
• Currently, the two -story structure blocks any direct access between the
Conexant property and the property they purchased (two ten -story
buildings).
• The existing FAR at Koll Center Newport is .5. Many of the projects
constructed in the last few years have a I FAR.
• It has always been contemplated that as the market matured in the area,
we would convert from free parking to pay parking and then structured
parking. Structured parking on a pay as you go basis is acceptable in the
market place today.
Commissioner Tucker noted a proposed condition that states, "the parking
structures located along MacArthur Boulevard and Jamboree Road shall be
designed so that parked cars are not visible from the roadway, etc"
Mr. Strader answered that this is a new condition.
Mr. Pat Allen, 1230 Devon Lane, architect of the project added that the berm
would be similar to the one along Circuit City and Nordstrom. By berm height
and adjusting the depth of the garage; creating a steeper slope on the
backside to bring in natural light and ventilation, will result in a garage that is
•
not exposed to the automobiles on MacArthur.
Commissioner Tucker stated that if it is going to be similar to what it is today,
you could see lots of cars from MacArthur. It surprises me that it says you would
not be able to see any cars. It doesn't have to be screened anymore than it is
today, in my opinion. How high are you raising the berm and what will happen
to the mature trees that are there today? Will it look like it does today? As far
as the intensification of the development, where you sited the additional
building and then taken and tucked all the parking behind the buildings and
pared back that long linear parking structure. I think that is a good feature. If
the Jamboree /MacArthur looks similar to what it does today, there is a fair
amount of intensification in that project, but it doesn't really look like it. Perhaps
it will even look more open.
Mr. Allen explained about the parking today that you do see cars that are
partially screened by trees in the parking lot.
Mr. Strader stated that this is the first time that they have seen this condition
regarding the parking. He asked that it be changed to say, be designed to
minimize the views of parked cars from the roadway. We would be willing to
accept a condition like that. I don't think that you can have a condition that
no cars are visible from the roadway, it is not possible.
Larry Lawrence, consultant to the City on this project stated that this condition
was derived from both the EIR mitigation measure and the condition that was
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Planning Commission Minutes
August 3, 2000
placed in the draft of the Conexant,PC amendment. This condition is for the
commercial section; I used the sameterminology.
Commissioner Tucker noted that this is a different condition, Koll Center is a
surface lot as opposed to a structure. This is supposedly going to be designed
so that you can not tell it is a parking structure as the second level is
underground.
Mr. Lawrence commented that Mr. Straders amendment is reasonable. We
don't have to exactly match the provisions for Conexant.
Commissioner Tucker stated that we don't have all the information and Koll
Center will be back in a couple of weeks. I would like to see it designed in a
fashion that is as near as possible to what exists today so that it has that feeling
of openness as opposed to intensification.
Mr. Strader referencing a three dimensional model noted the two -story
structure alignments with the berms in existence today.
Commissioner Tucker noted that this model would not be in our archives. I am
. looking for something to show what is there today versus what you are planning
on doing. I don't have a problem with the proposal; we need a set of plans to
help us understand that. With the intensification of some 200,000+ square feet,
you effectively have left the general feel of the area alone.
Mr. Strader noted his agreement and will have an exhibit to depict the
proposal.
Commissioner Tucker referencing page 8 of the KCN Planned Community text
says no changes are proposed to the permitted uses in the KCN PC text.
Referring to the staff report, the proposed amendments relate exclusively to the
maximum square footage allowed in Office Site B and related standards ... it
should be noted that the site plan included with this report is conceptual and
provided for informational purposes only. The KCN PC text does not contain
any provisions for Planning Commission review of site, architectural, landscape
or other specific development plans. My question is, how is it that the plans
submitted to us that we are looking at, how do we see that what we think is
going to happen will happen? Is there no review?
Ms. Temple answered that there are two ways staff would administer the
issuance of a building permit pursuant to this approval. One would be making
sure that there are sufficient provisions within the PC text should it need to be
added in order to address any specific design related issues that the
Commission may find necessary. The second is that the EIR and all of the
impacts and mitigation measures provided therein are based on the
• conceptual site plan to the extent that it is necessary to understand those
details in order to define mitigation. If a project was modified to an extent
INDEX
City of Newport Beach
Planning Commission Minutes
August 3, 2000
where any of those findings, lack of:significance or new significance was at
least possible or mitigation measures'not able to be complied with or deemed
adequate, then we would not be able to find that the project was substantially
similar to that approved through its environmental process. We would have to
come back for some modifications. The only other way to get a hard site
planning type review on a project of this nature would be to actually require
some subsequent review of the final plans before permits are issued. The next
item on the agenda, a process similar to that could be required in the PC text
and then the project would come back with the final details. You can't
conditionally zone, so you would have to make additional provisions in the PC
text specific to this site that staff would then review the plans for compliance
with.
Commissioner Tucker stated that he understands wanting the consistency
between the two projects, but really the parking structures are completely
different with the Conexant one sitting out close to the street and the Koll
Center big parking structure is kind of buried behind everything. The little
parking structure is the one that is right where we want to make sure that the
appearance remains pretty much as it is today.
Public comment was closed.
Motion was made by Commissioner Gifford to continue this item to September
7, 2000.
Ayes: McDaniel, Agajanian, Selich, Gifford, Tucker
Noes: None
Absent: Kiser, Kranzley
SUBJECT. Development Plans Regulations
Citywide
A resolution of intent to a d the Zoning Code to require development plans
for large commercial and rest ftQial projects.
Chairperson Selich asked about the pr s; in the past haven't we had some
direction from Council before we do a Reso • n of Intention?
Ms. Temple answered that the Code allows either City Council or the
Planning Commission to adopt a Resolution of Intentio However, if the
Planning Commission is uncomfortable doing this and wou e the City
Council to consider the Resolution of Intention, we certainly can do t
INDEX •
Item No. 4
Development
Regulations
Discussion Item
Plan
•
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ATTACHMENT 3:
TRAFFIC STUDY RESOLUTION
•
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RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH APPROVING TRAFFIC STUDY
NO. 119 REGARDING THE EXPANSION OF OFFICE SITE
B IN KOLL CENTER NEWPORT.
WHEREAS, Koll Center Newport Number A, 1900 Main Street, Suite 350, Irvine,
California, has applied to the City of Newport Beach for a General Plan Amendment and a Planned
Community Amendment for "Office Site B" of the Koll Center Newport (KCN) Planned
Community in order to allow future additional development on Parcel 1 of PMB 114/22 -24 and
Parcels 1, 2, and 7 of PMB 181/13 -19; and
WHEREAS, the proposed General Plan Amendment would increase the allowable building
floor area of KCN Office Site B by 250,000 gross square feet, to a maximum of 1,310,898 gross
square feet; and
WHEREAS, the proposed Zoning Amendment to the Koll Center Newport Planned
Community text would increase the maximum allowable building floor area in KCN Office Site B;
and
WHEREAS, a traffic study, entitled Office Site B — Koll Center Newport Planned
Connntrniry (WPA Traffic Engineering, Inc., March 2000), was prepared for the project in
compliance with Chapter 15.40 of the Municipal Code (Traffic Phasing Ordinance) and
incorporated into the Environmental Impact Report for the project (SCH #99091120); and
WHEREAS, the traffic study indicated that the project will increase traffic on nine primary
intersections by one percent (1%) or more during Peak Hour periods one year after the completion
of the project; and
WHEREAS, utilizing the Intersection Capacity Utilization (ICU) analysis specified by the
Traffic Phasing Ordinance, the traffic study determined that eight of the preceding nine primary
intersections will operate at satisfactory levels of service as defined by the Traffic Phasing
Ordinance; and
WHEREAS, utilizing the Intersection Capacity Utilization (ICU) analysis specified by the
Traffic Phasing Ordinance, the traffic study determined that one primary intersection,
MacArthur /Jamboree, presently operates at an unsatisfactory level of service during the a.m. peak
hour and that the project will further impact the intersection unless mitigation measures are
'1
implemented. The traffic study identified the following mitigation measures, in the form of
intersection improvements, the costs of which are to be shared by the project and other projects
impacting the same intersection via mandatory conditions of approval: addition of a second
northbound left turn lane, a second southbound left turn lane and a northbound right turn lane; and
WHEREAS, the above - described improvements will reduce the identified short-range
traffic impacts from the project to a less - than - significant level; and
WHEREAS, based on the weight of the evidence in the administrative record, including
the traffic study, the City Council finds:
1. Construction of the project will be completed within 60 months of project approval; and
2. With planned intersection improvements, contributed to by the project, the project will
neither cause nor make worse an unsatisfactory level of traffic service at any impacted
primary intersection.
WHEREAS, on August 3 and September 7, 2000 and June 7, 2001, the Planning
Commission held duly- noticed public hearings, at which time the proposed General Plan
Amendment and Zoning Amendment were considered and forwarded to the City Council with a
recommendation of approval; and •
WHEREAS, on June 26, 2001, the City Council held a public hearing, at which time the
proposed General Plan Amendment and Zoning Amendment were considered. A notice of time,
place and purpose of the public hearing was duly given and testimony was presented to and
considered by the City Council at the public hearing.
NOW THEREFORE BE IT RESOLVED, that the City Council of the City of Newport
Beach does hereby approve Traffic Study 119 based on the weight of the evidence in the
administrative record, including the traffic study.
ADOPTED this 26`h day of June, 2001, by the following vote, to wit:
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0 AYES, COUNCIL MEMBERS
0 ATTEST:
CITY CLERK
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NOES, COUNCIL MEMBERS
ABSENT COUNCIL MEMBERS
MAYOR
5J
Ll
ATTACHMENT 4:
EIR RESOLUTION
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• RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH CERTIFYING ENVIRONMENTAL
IMPACT REPORT NO. 158 REGARDING THE
EXPANSION OF OFFICE SITE B IN KOLL CENTER
NEWPORT (STATE CLEARINGHOUSE NO. 99091120).
WHEREAS, Kell Center Newport Number A, 1900 Main Street, Suite 350, Irvine,
California, has applied to the City of Newport Beach for a General Plan Amendment and a Planned
Community Amendment for "Office Site B" of the Kell Center Newport (KCN) Planned
Community in order to allow future additional development on Parcel 1 of PMB 114/22 -24 and
Parcels 1, 2, and 7 of PMB 181/13 -19; and
WHEREAS, the proposed General Plan Amendment would increase the allowable building
floor area of KCN Office Site B by 250,000 gross square feet, to a maximum of 1,310,898 gross
square feet; and
WHEREAS, the proposed Amendment to the Kell Center Newport Planned Community
text would increase the maximum allowable building floor area in KCN Office Site B; and
•
WHEREAS, a Development Agreement was prepared to provide enhanced public benefits
and the payment of special mitigation fees not required of other projects in order to offset the
impacts of the project, in return for the permitted higher level of entitlement; and
WHEREAS,in accordance with CEQA requirements, a Notice of Preparation (N0P) of a
Draft Environmental Impact Report (DE1R) was filed with the State Clearinghouse, which
assigned State Clearinghouse Number 99091120; and
WHEREAS,the NOP and an Initial Study were distributed to all responsible and trustee
agencies and other interested parties for a 30 -day public review period commencing on
September20, 1999 and ending on October 22, 1999; and
WHEREAS, a Draft E1R was prepared forthe project, hereby designated by reference as
Exhibit - E1R -1" of this Resolution, which identifies potential significant impacts to the
environment and certain mitigation measures designed to reduce or avoid these impacts; and
WHEREAS, in accordance with CEQA requirements, a Notice of Completion (NOC) of
the Draft E1R was filed with the State Clearinghouse; and
•
WHEREAS, the Draft EIR was distributed to agencies, interested organizations, and
individuals by the City. The distribution list is available at the City of Newport Beach Planning •
Department; and
WHEREAS, a 45 -day public review period for the Draft EIR was established pursuant to
State law, which commenced on May 23, 2000 and ended on July 10, 2000; and
WHEREAS, all comments received during the public review period for the Draft EIR
were responded to in the "Response to Comments" document dated August 2000, hereby
designated by reference as Exhibit "EIR-2" of this Resolution. All comments and responses were
considered by the City Council during its review of the project and the Environmental Impact
Report; and
WHEREAS, pursuant to Section 15091 of the State CEQA Guidelines, a "Statement of
Findings" has been prepared, summarizing the impacts of the project, the mitigation measures
required to avoid or substantially lessen each of those impacts, and the "substantial evidence in
the record" supporting the finding of each such impact which will be avoided or substantially
lessened; and
WHEREAS, because the EIR identifies certain environmental impacts of the project •
which cannot be avoided or substantially lessened, a "Statement of Overriding Considerations"
has been prepared, which balances these significant adverse environmental impacts against
environmental benefits and other benefits resulting from approval of the proposed Project; and
WHEREAS, a "Mitigation Monitoring and Reporting Program" (MMRP), has been
prepared to ensure implementation of all mitigation measures identified in the Final EIR,
including a listing of all identified mitigation measures, the timing of implementation of each
mitigation measure, the method of verification of implementation, and the individual responsible
for monitoring compliance; and
WHEREAS, on August 3 and September 7, 2000 and June 7, 2001, the Planning
Commission held duly- noticed public hearings, at which time the proposed amendments,
Development Agreement, and EIR were considered. The Planning Commission then forwarded a
recommendation that the EIR be certified as complete; and
WHEREAS, on June 26, 2001, the City Council held a public hearing, at which time the
proposed amendments, Development Agreement, and EIR were considered. A notice of time, place •
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and purpose of the public hearing was duly given and testimony was presented to and considered by
the City Council at the public hearing.
NOW THEREFORE BE IT RESOLVED, that
1. The City Council hereby finds that Environmental Impact Report No. 158 for the
expansion of Office Site B In Koll Center Newport (State Clearinghouse No. 99091120)
has been prepared in compliance with the California Environmental Quality Act and the
CEQA Guidelines. In addition, the City Council finds that the EIR adequately analyzes
project - related impacts, identifies feasible mitigation measures, and discusses project
alternatives, and that the•EIR reflects the City's independent judgment and analysis.
Accordingly, the City Council hereby certifies Final Environmental Impact Report No.
158, consisting of the Draft Environmental Impact Report, designated by reference as
Exhibit "EIR -1" of this Resolution, and the EIR Responses to Comments, designated by
reference as Exhibit "EIR -2" of this Resolution.
2. The City Council hereby adopts the "Statement of Findings ", attached hereto as Exhibit
"EIR -3 ", the Statement of Overriding Considerations ", attached hereto as Exhibit "EIR-
. 4 ", the Mitigation Monitoring Program, attached hereto as Exhibit "EIR -5 ", and the
"Errata Corrections" to the Draft EIR, attached hereto as Exhibit "EIR -6 ".
ADOPTED this 26'h day of June, 2001, by the following vote, to wit:
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(t J
AYES, COUNCIL MEMBERS
NOES, COUNCIL MEMBERS
ABSENT COUNCIL MEMBERS
MAYOR
ATTEST:
CITY CLERK
rd
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EXHIBIT EIR -1:
DRAFT ENVIRONMENTAL IMPACT REPORT
[Distributed separately due to bulk. Available for public review at the City's Planning Department]
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EXHIBIT EIR -2:
RESPONSES TO COMMENTS ON DRAFT EIR
[Distributed separately due to bulk. Available for public review at the City's Planning Department]
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EXHIBIT EIR -3:
STATEMENT OF FINDINGS
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G1
STATEMENT OF FINDINGS IN SUPPORT OF THE
GENERAL PLAN AMENDMENT AND PLANNED COMMUNITY AMENDMENT
KOLL CENTER NEWPORT - OFFICE SITE B
AND RELATED ACTIONS
SIGNIFICANT ENVIRONMENTAL EFFECTS OF THE PROPOSED PROJECT,
FINDINGS WITH RESPECT TO SAID EFFECTS, AND STATEMENT OF FACTS IN SUPPORT
THEREOF, ALL WITH RESPECT TO THE PROPOSED GENERAL PLAN AMENDMENT AND
THE KOLL CENTER NEWPORT PLANNED COMMUNITY AMENDMENT (OFFICE SITE B) IN
THE CITY OF NEWPORT BEACH, CA
INTRODUCTION
The California Environmental Quality Act ( "CEQA "), Public Resources Code Section 21081 and CEQA
Guidelines Section 15091 provide that:
(a) No public agency shall approve or carry out a project for which an EIR has been certified which
identifies one or more significant environmental effects of the project unless the public agency
makes one or more written findings for each of those significant effects, accompanied by a brief
explanation of the rationale for each finding. The possible findings are:
(1) Changes or alterations have been required in, or incorporated into, the project which avoid
or substantially lessen the significant environmental effect as identified in the final EIR.
(2) Such changes or alterations are within the responsibility and jurisdiction of another public
agency and not the agency making the finding. Such changes have been adopted by such
other agency or can and should be adopted by such other agency.
(3) Specific economic, legal, social, technological, or other considerations, including provision of
employment opportunities for highly trained workers, make infeasible the mitigation
measures or project alternatives identified in the final EIR.
(b) The findings required by subsection (a) shall be supported by substantial evidence in the record.
Section 15092 of the State CEQA Guidelines further stipulates that:
(b) A public agency shall not decide to approve or carry out a project for which an EIR was prepared
unless either:
(1) The project as approved will not have a significant effect on the environment, or
(2) The agency has:
(A) Eliminated or substantially lessened all significant effects on the environment where
feasible as shown in findings under Section 15091, and
(B) Determined that any remaining significant effects on the environment found to be
unavoidable under Section 15091 are acceptable due to overriding concerns as
described in Section 15093.
In making the findings required by Section 21081, the public agency must base its findings on substantial
evidence in the record.
An Environmental Impact Report (EIR) for the project has been prepared and certified as complete by the
City of Newport Beach. The EIR identifies certain significant effects which may occur as a result of the Koll
• Center Newport project alone or on a cumulative basis in conjunction with other past, present, and
reasonably foreseeable future projects. The environmental review process for the Koll Center Newport
project is summarized below.
1. In accordance with CEQA requirements, a Notice of Preparation (NOP) of a Draft EIR was filed with
the State Clearinghouse on September 24, 1999. The State Clearinghouse assigned State
Clearinghouse Number 99091120.
2. The NOP and an Initial Study were distributed to all responsible and trustee agencies and other
interested parties on September 20, 1999 for a 30 -day public review. The review period ended on
October 22, 1999. The Subcommittee of the Environmental Quality Affairs Citizens Advisory
Committee (EQAC) for the Koll Center Newport project submitted comments dated October 20,
1999 on the NOP and Initial Study.
3. In accordance with CEQA requirements, a Notice of Completion (NOC) of the Draft EIR was filed
with the State Clearinghouse on May 24, 2000.
4. The Draft EIR was distributed to agencies, interested organizations, and individuals by the City. The
distribution list is available at the City of Newport Beach, Planning Department.
5. A forty -five (45) day public review period for the Draft EIR was established pursuant to State law,
which commenced on May 24, 2000 and ended on July 10, 2000.
6. Comments received during the public review period for the Draft EIR were responded to in a
Response to Comments document dated August, 2000.
7. A Final EIR has been prepared for the Koll Center Newport Project. The following components
. comprise the Final EIR:
a. Draft EIR, May 2000;
b. Comments received on the Draft EIR and responses to those comments, August 2000; and
C. All attachments, incorporations, and references to the documents delineated in items a and
b above.
The City is the Lead Agency with respect to the project pursuant to State CEQA Guidelines Section 15367.
As a Lead Agency, the City is required by CEQA to make findings with respect to each significant effect of
the Project. The City has reviewed the EIR. The following sections make detailed findings with respect to the
potential effects of the Koll Center Newport project and refer, where appropriate, to the mitigation measures
set forth in the Final EIR.
The Final EIR and the administrative record concerning the Koll Center Newport project provide additional
facts in support of the findings herein. The Final EIR (which includes, among other components, the Draft
EIR, and the Response to Comments on the Draft EIR) is hereby incorporated into these Findings in its
entirety. Furthermore, the mitigation measures set forth in the Mitigation Monitoring Program are incorporated
by reference in these Findings. The Mitigation Monitoring and Reporting Program was developed in
compliance with Public Resources Code Section 21081.6 and is contained in a separate document. Without
limitation, these incorporation are intended to elaborate on the scope and nature of mitigation measures, the
basis for determining the significance of impacts, the comparative analysis of alternatives, and the reasons
for approving the Koll Center Newport project in spite of associated significant unavoidable adverse impacts.
Final EIR SCH No. 99091120 for General Plan Amendment and Amendment to the Koll Center Planned
Community and related discretionary actions, identified significant environmental impacts prior to mitigation
that may occur as a result of implementing the project. Thus, in accordance with the provisions of CEQA, the
Newport Beach City Council hereby adopts these findings as part of its action to certify Final EIR SCH No.
• 99091120 and approve the General Plan Amendment and Amendment to the Koll Center Planned
Community District Regulations.
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Findings regarding significant adverse environmental impacts are included below and addressed in more •
detail in the Statement of Overriding Considerations.
II. DESCRIPTION OF THE PROJECT PROPOSED FOR APPROVAL
Consistent with the intent of CEQA, the State CEQA Guidelines, and relevant judicial interpretations of
CEQA, the "project" addressed in the Final EIR is defined to include the approval of a general plan
amendment, amendment to the existing planned community district regulations, and a traffic phasing
ordinance study that would allow the development of a 10 -story, 250,000 square feet professional office
building; a 1,200 -car, 6 -level parking structure to replace an existing 2 -level parking structure; and a 500 -car,
2 -level parking structure to replace an existing surface parking area. The proposed project is intended to
provide for additional professional office space within Office Site B of the Koll Center Newport Planned
Community (PC), and to provide for an enhanced professional office campus environment and facilitate
connectivity to the existing Conexant facilities to the north.
Subsequent to the preparation and distribution of the Draft EIR for public review and comment, the City of
Newport Beach and the project applicant mutually agreed to enter into a development agreement for the
proposed project. The development agreement provides additional mitigation for project impacts in the form
of fees for road improvements and other items in return for assurances to the developer that development
will be able to proceed without future changes to development parameters or City- caused increases in
development costs. Although this discretionary action was not identified in the project description contained in
the Draft EIR, a review of its implications on the environmental analysis conclusively shows that its
implementation will not result in any additional significant impacts beyond those addressed in the Draft EIR,
result in a substantial increase in the severity of any significant impacts addressed in the Draft EIR, and /or
require the incorporation of additional mitigation measures. Therefore, the environmental analysis presented
in the Draft EIR adequately evaluated all of the potential impacts of project implementation, including those
related to the approval and implementation of the development agreement. .
The project includes the following elements:
General Plan Amendment
The General Plan Amendment is proposed to eliminate the restaurant and retail uses
currently designated for the subject property and increases in the allowable office use for
Office Site B.
Planned Community (PC) District Amendment (Zone Change)
The amendment to the Koll Center Newport Planned Community District Regulations dated
May 5, 1972 (Amended August 10, 1998) is proposed to increase the amount of office
space within Office Site B by 250,000 (gross) square feet.
Development Agreement
The development agreement between the City and the developer provides for the payment
of special impact fees related to traffic and public services not required of other projects in
return for assurances that the project can proceed. In addition to providing the developer a
vested right to develop the property under the provisions of the general plan and zoning
amendments approved by the City for a term of twenty -five years, several benefits will
accrue to the City, including additional development fees intended to fund long -range traffic
improvements, fees to fund a planning study for the airport area, and a fire suppression
impact fee that will contribute to site acquisition, construction, and/or equipment and staffing
of a new, permanent fire station to serve the area.
•
. Traffic Phasing Ordinance
Under the City's Traffic Phasing Ordinance (TPO), the project's additional traffic contribution
beyond that which is included as a "committed project" must be analyzed and the
requirements of the TPO must be satisfied before City action. These activities are under the
jurisdiction of the City of Newport Beach as the Lead Agency, including the approval of
discretionary planning actions and issuance of permits (e.g., grading permit, building permit,
etc.) necessary for project implementation.
III. IMPACTS DETERMINED TO BE LESS THAN SIGNIFICANT
The following describes impacts of the Koll Center Newport (Office Site B) project found to be less than
significant in the preparation of the Initial Study and the Draft EIR. The Initial Study, provided in Appendix A of
the Draft EIR, was used to focus the scope of the Draft EIR.
INITIAL STUDY
Land Use Planning
Implementation of the proposed project would not affect agricultural resources or operations.
2. Implementation of the proposed project would not disrupt or divide the physical arrangement of the
established community including the land uses and circulation patterns within and adjacent to the
project site.
Population and Housing
• 1. Implementation of the proposed project would not displace existing housing, especially affordable
housing.
Geologic Issues
1. Implementation of the proposed project is not anticipated to expose people on structures to fault
rupture during a seismic event.
2. Although implementation of the proposed project has the potential to result in the exposure of people
and structures to ground shaking during a seismic event, this exposure is no greater than exposure
present in other areas throughout the Southern California region. No significant impact would occur.
3. Implementation of the proposed project is not anticipated to expose people to structures to ground
failure due to liquefaction during a seismic event.
4. Implementation of the proposed project would not expose people or structures to seiche, tsunami, or
volcanic hazards.
5. The project site and vicinity are not identified as areas with the potential for landslides or mudflows.
6. Implementation of the proposed project would not require significant alteration of the existing
topography on the project site. In the event that unstable soil conditions occur on the project site due
to previous grading, excavation, or placement of fill materials, these conditions would be reduced by
the City's required submittal of site - specific geotechnical evaluations to address specific design and
construction measures for each building site prior to issuance of grading permits. No significant
impact related to changes in topography or unstable soil conditions would occur.
4 1I
The project site has not been identified as an area with the potential for subsidence. In addition, •
withdrawal of groundwater, oil, or other mineral resources would not occur as part of the proposed
project.
8. Upon compliance with the Citys grading and building permit requirements, no significant impact
related to expansive soil conditions would be anticipated to occur.
9. Implementation of the proposed project would not disturb unique geologic or physical features.
Water
With implementation of the proposed project, the drainage patterns, absorption rates, and the rate
and amount of surface runoff would not significantly change relative to the existing conditions. In
addition, runoff from the project site would continue to be accommodated by the existing on -site and
off -site drainage facilities.
2. Implementation of the proposed project would not increase the exposure of people or property to
flood hazards.
3. Development of the additional building areas for the proposed project would not significantly alter the
amount of impervious surfaces on the project site and the potential for erosion to result in changes to
surface water quality would not significantly increase relative to the existing conditions. The proposed
project would replace surface parking lots with buildings and parking structures resulting in a
reduction in the amount of exposed surface parking areas that contain oil and other vehicle - related
pollutants that degrade surface water quality. The proposed project would not impact surface water
quality.
4. Development of the proposed project would not result in changes in the amount of surface water in •
any natural water body.
5. Implementation of the proposed project would not affect the course or direction of water movements
in any natural water body.
6. No groundwater extraction or additions would occur as part of the proposed project. In addition, the
proposed project would not result in interception of an aquifer by cuts or excavation during grading or
construction.
7. Implementation of the proposed project would not alter the direction or rate of flow of groundwater.
8. Throughout the permitting process for the project site, no regulatory thresholds have been exceeded
for groundwater which would require Koll Center Newport to conduct health effect studies. The
implementation of the proposed project would not result in the addition of activities to the project site
that would exceed these regulatory thresholds.
9. Groundwater use or extraction would not occur as part of the proposed project and no impact on
public water supplies would occur.
Air Quality
Development of the additional building area for the proposed project would not alter air movements,
moisture, or temperature, or cause any change in the climate since the proposed structural additions
would not be of sufficient size or density to influence meteorology either locally or regionally.
Additionally, no operational changes that could cause any change in climate would occur on the
project site.
5 �I
2. The emission of significant odors would not be anticipated during construction. The operation of the
.
proposed project would not emit new objectionable odors on the project site and in the vicinity
Transportation/Circulation
1. The proposed project would not introduce hazardous design features such as sharp curves or
dangerous intersections or provide for the use of incompatible equipment on the project site or
adjacent roadways.
2. The proposed project would not result in inadequate emergency access to the project site or affect
access to nearby uses.
3. The proposed project is not anticipated to create hazards or barriers for pedestrians and bicyclists
utilizing Jamboree Road and Birch Street.
4. Implementation of the proposed project is not anticipated to result in conflicts with adopted policies
supporting alternative transportation.
5. No impacts would occur with respect to rail, waterborne, or air traffic.
Biological Resources
1. The proposed project would not result in an impact to either plant or animal species.
2. The proposed project would not result in the removal of any locally designated plant or wildlife
species.
. 3. No locally designated natural communities are known to exist on the project site.
4. The project site does not contain open space utilized for wildlife migration or dispersal.
Enerqv and Mineral Resources
It is not anticipated that the proposed project would require excessive energy consumption or conflict
with adopted energy conservation plans.
2. Although non - renewable resources would be utilized in the construction and operation of the
proposed project, these resources would not be used in a wasteful or inefficient manner.
3. Implementation of the proposed project would not result in the loss of the availability of a known
mineral resource that would be of future value to the region.
Hazards
The construction and operation of the proposed project would not result in an increase in the risk of
an explosion or the release of a hazardous substance relative to the existing conditions. The
proposed project would not result in the creation of any new health hazard or potential new health
hazard relative to the existing conditions. In addition, the proposed project would not result in the
exposure of people to existing sources of potential health hazards.
Construction and operation of the additional building area for the proposed project would not interfere
with emergency response or emergency evacuation plans on -site and in the local area.
3. Development on the project site as a result of the proposed project would comply with the applicable
• fire and safety provisions of the City's Uniform Building Code and would not result in an increased
fire hazard.
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Public Services
1. As there are no residential land uses provided with the proposed project, school services would not
be directly impacted. Potential demand for housing and the associated increase for school services
would be within regional levels accounted for by regional and local population projections.
2. Implementation of the proposed project would not result in the need for additional maintenance of
local roadways.
3. The proposed project would not result in an increased need with respect to governmental services
such as libraries.
Utilities and Service Systems
Any potential expansion of telephone or cable networks required to serve the proposed project would
be anticipated to be within the capabilities of the respective service providers.
2. With implementation of the proposed project, runoff from the project site would continue to be
accommodated by the existing on -site and off -site stormwater drainage facilities.
No impact with respect to a scenic vista or scenic highway would occur.
Cultural Resources
Although there is a possibility that paleontological resources exist at deep levels, the uncovering of
such resources would be remote. Although implementation of the proposed project would not be
anticipated to disturb paleontological resources, any potential effect would be reduced by compliance
with conditions of approval.
2. Although implementation of the proposed project would not be anticipated to disturb archaeological
resources, any potential effect would be reduced by compliance with conditions of approval.
3. The project site does not contain any historic monuments or historic resources.
4. No impact as a result of a physical change which would affect unique ethnic cultural values would
occur.
5. There are no existing religious or sacred uses associated with the project site. No impact would
occur.
Recreation
1. Implementation of the proposed project would not result in an increase in the use of existing
neighborhood and regional parks or other recreational facilities such that physical deterioration of
existing facilities would occur. In addition, the proposed project would not require the construction or
expansion of recreational facilities. No significant impact would occur.
2. Implementation of the proposed project would not result in a significant increase in the demand for
City recreation programs. No significant impact would occur.
3. The proposed project in conjunction with other past, present, and reasonably foreseeable future
projects would not result in a significant cumulative impact to recreation facilities and programs. •
7 � (D
ENVIRONMENTAL IMPACT REPORT
Additional analysis of the issues was undertaken and presented in the Draft EIR. Though that analysis, it was
determined that potential impacts would be less than significant or potential impacts would be avoided or
minimized (i.e., less than significant) through the incorporation of standard conditions of approval (e.g.,
implementation of UBC requirements, etc.). The standard conditions are identified below, were appropriate.
Land Use and Planning
1. No impact due to incompatibility with the existing on -site land uses or surrounding land uses would
occur.
2. With approval of the requested General Plan Amendment, implementation of the proposed project
would not result in an impact related to consistency with the General Plan designation for the project
site.
3. The proposed project is consistent with the applicable goals, policies, and objectives of the General
Plan Elements.
4. With approval of the requested Amendment to the Koll Center Newport Planned Community text,
implementation of the proposed project would not result in an impact related to the existing
development regulations and standards for the project site.
5. The proposed project is compatible with the Urban and Industrial designation for the adjacent area
within the City of Irvine and no impact would occur.
6. The proposed project is compatible with the University of California, Irvine (UCI) North Campus
Mixed Use designation for the area directly to the east of the project site and no impact would occur.
7. The proposed project is consistent with the general land use policy of the Airport Environs Land Use
Plan (AELUP) of the Airport Land Use Commission of Orange County (ALUC) and no impact would
occur.
8. The proposed project would be consistent with the applicable policies within the Growth
Management Chapter of the Regional Comprehensive Plan and Guide (RCPG) and no impact would
occur.
9. The proposed project would be consistent with the applicable policies of the Regional Transportation
Plan (RTP) and no impact would occur.
10. The proposed project in conjunction with other past, present, and reasonably foreseeable future
projects, would not result in a cumulative impact related to incompatible land uses or inconsistencies
with land use plan and regulations.
Standard Conditions
SC 4.1 -1 Subsequent project approvals shall be reviewed for consistency with applicable General
Plan and Zoning documents prior to development approval.
SC 4.1 -2 All development shall be reviewed for consistency with applicable provisions of the Building
Code prior to issuance of building permits.
SC 4.1 -4 All subsequent project approvals shall be subject to the provisions of the California
Environmental Quality Act. If changes are made to the project description or new information
becomes available indicating that additional impacts could occur, the project may be subject
to additional review and mitigation measures.
8 1�
SC 4.1 -5 The applicant shall comply with FAA Federal Aviation Regulations (FAR) Part 77, requiring
that the applicant file Form 7460 -1 for all buildings that would penetrate the airport's
imaginary surfaces. In addition, any object which rises above the height of the surrounding
development and all other structures will be clearly marked or lighted in accordance with
FAA requirements.
Population
Implementation of the proposed project will not result in a significant impact related to the regional
and local population.
2. The proposed project in conjunction with other past, present, and reasonably foreseeable future
projects would not result in a significant cumulative impact related to the regional or local population.
Standard Conditions
SC 4.2 -1 The applicant shall comply with the applicable provisions of the Newport Beach Growth
Management Element to ensure that the project is consistent with the goals and policies of
the City that address population, housing and employment.
Water Quality
1. Implementation of the proposed project would not result in a significant impact to water quality.
2. The proposed project in conjunction with other past, present, and reasonably foreseeable future
projects would not result in a significant cumulative impact to water quality.
Standard Conditions
SC 4.3 -1 Prior to issuance of precise grading or building permits, whichever comes first, the applicant
shall submit and obtain approval from Manager, Subdivision and Grading, of a Water Quality
Management Plan (WoMP) specifically identifying Best Management Practices (BMPs) that
will be used on -site to control predictable pollutant runoff. This WoMP shall identify, at a
minimum, the routine, structural and non - structural measures specified in the Countywide
NPDES Drainage Area Master Plan (DAMP) Appendix which details implementation of
BMPs whenever they are applicable to a project, the assignment of long -term maintenance
responsibilities (specifying the developer, parcel owner, maintenance association, lessee,
etc.); and, shall reference the location(s) or structural BMPs.
SC 4.3 -2 Prior to issuance of any grading permits, the applicant shall submit evidence to the Director,
Public Works, that the applicant has obtained coverage under the NPDES statewide
General Stormwater Permit from the State Water Resources Control Board. Consistent with
the Orange County municipal NPDES permit, the proposed project shall include the
incorporation of the following structural and non - structural BMPs into the additional
development proposed for the site:
Structural BMPs
The landscape plan for the proposed project will address the requirements of the County
Water Conservation Plan and include elements in the irrigation plan to save water and
reduce runoff from vegetated areas. Routine inspection of the irrigation system will occur to
prevent inadvertent discharge of water through parking lots.
The landscape design will include plans with lower water requirements to reduce water use
and excess irrigation runoff. 0
1q,
0
Trash containers and dumpsters will be sited to avoid drainage from adjoining roofs or
pavements. Trash containers and dumpsters on the project site will be covered to reduce
the potential for contamination of storm water runoff. If the area is uncovered, runoff will be
required to flow through a water quality inlet prior to discharge into the storm drain system.
All catch basins and inlets to storm drains on the project site will be stenciled to alert the
public to the destination of pollutants discharged into storm water runoff.
Trash racks will be installed and maintained in all inlets on the project site that discharge into
the storm drain system. These racks will be designed to remove floatable debris.
Water quality inlets (e.g., grease traps) are required in areas where the project would have
outdoor storage of oils, solvents, or other materials, such as parking structures, where there
would be potential flows from loading docks where solvents or oils are used, or where
uncovered trash containers are stored. These inlets will be designed to remove free phase
liquid petroleum products, grease, floatable debris, and settleable solids prior to discharge
into the storm drain system.
Non - Structural BMPs
All employees will be provided with materials that document general procedures for the
protection of surface water quality.
Specific activities that could affect water quality will be restricted on the project site. A list of
these activities will be developed, provided to all employees, and posted within common
areas. These activities will include, but not be limited to, the repair and cleaning of private
automobiles on the project site, discharge of any material into storm drains, and the use of
water to flush exposed parking areas or the parking structures.
The maintenance of landscaped areas on the project site will be conducted in accordance
with the County of Orange Water Conservation Program and Management Guidelines for
the Use of Fertilizers and Pesticides. All organic waste generated as a result of maintenance
activities (e.g., grass clippings) will be disposed of at an appropriate location and care will be
taken to keep material from entering the storm drains.
The additional development on the project site will be incorporated into the trash
management and litter control program. Normal maintenance procedures will be conducted
to empty trash receptacles, remove litter, and clean the trash racks leading to the storm
drains.
The additional development on the project site will be incorporated into the existing street
sweeping program to ensure that all internal roadways, parking lots, and parking structures
will be swept on a regular basis.
All BMPs will be subject to routine maintenance and training to ensure that all are
operational and/or in place. The maintenance procedures will identify responsible parties
and schedule inspections to ensure compliance.
SC 4.3 -3 Site grading and construction shall comply with the drainage controls imposed by the Cityls
grading ordinance and all applicable local and State building codes.
SC 4.3 -4 The applicant shall provide for weekly vacuum sweeping of all paved parking areas and
drive upon completion of construction.
10 9
Air Cuali
1. Implementation of the proposed project would not result in a significant short-term impact to air
quality due to construction - related emissions.
2. Implementation of the proposed project would not result in a significant localized air quality impact
related to mobile source emissions.
3. The proposed project is consistent with the Air Quality Management Plan (AQMP) policies and no
impact would occur.
4. As construction impacts associated with the "worst -case" assumptions related to the buildout of the
proposed project would not exceed South Coast Air Quality Management District's (SCAQMD's)
significance thresholds, the proposed project in conjunction with other past, present, and reasonably
foreseeable future projects would not result in a significant cumulative short-term impact to air quality
due to construction - related emissions.
Standard Conditions
SC 4.5 -1 SCAQMD Rule 403 which requires that "... every reasonable precaution (is taken) to
minimize fugitive dust emissions . " from grading operations to control particulate
emissions, shall be implemented during the grading and construction phase.
SC 4.5 -2 Adherence to SCAQMD Rules 431.1 and 431.2 which require the use of low sulfur fuel for
stationary construction equipment.
SC 4.5 -3 The project shall comply with Title 24 energy- efficient design regulations as well as the
provision of window glazing, wall insulation, and efficient ventilation methods in accordance
with Uniform Building Code requirements.
SC 4.5 -4 Water site and clean equipment morning and evening to comply with the AQMP Fugitive
Dust Measure BCM -06.
SC 4.5 -5 Trucks leaving the site shall be washed.
SC 4.5 -6 Grading operations shall be suspended during first and second stage smog alerts.
SC 4.5 -7 All grading operations shall be suspended when wind speeds (as instantaneous gusts)
exceed 25 miles per hour.
Trans portation/C ircu latio n
1. Implementation of the proposed project would not result in an impact to site access.
2. Implementation of the proposed project would not result in an impact related to parking.
3. The proposed project in conjunction with other past, present, or reasonably foreseeable future
projects would not result in a cumulative impact related to access and parking.
Standard Conditions
SC 4.4 -1 Prior to issuance of certificates of occupancy for the proposed project, the circulation system
improvements contained in the Traffic Study shall have been constructed (unless
subsequent project approval requires modification thereto). The circulation system
improvements shall be subject to the approval of the City Traffic Engineer.
9
• SC 4.4 -2 Prior to issuance of the certificates of occupancy, the applicant shall contribute the project's
fair share, as determined by the City, to the Circulation System Improvements for the
affected intersections, described in the Traffic Study.
SC 4.4 -3 If the applicant wishes to occupy the proposed development prior to the completion of the
improvements identified in the Traffic Study, the applicant shall demonstrate to the
satisfaction of the Planning Department and Public Works Department that trip generation
reduction measures or measures equally effective as approved by the City Traffic Engineer
have been implemented. These measures shall remain in effect until the improvements
described in the Traffic Study have been completed.
Noise
1. Implementation of the proposed project would not result in a significant short-term impact due to
construction - related activities.
2. The increase in the noise levels as a result of the proposed project during the Near Term Traffic
Conditions would not be perceptible and no significant impact would occur.
3. The increase in the noise levels as a result of the proposed project during the Long Range Traffic
Conditions with Koll Center Newport would not be perceptible and no significant impact would occur.
4. The increase in the noise levels as a result of the proposed project during the Long Range Traffic
Conditions without Koll Center Newport would not be perceptible and no significant impact would
occur.
5. No significant noise increases as a result of the proposed project related to the mechanical
is equipment pad and central plant operation would be anticipated and no significant impact would
occur.
6. No significant noise increases as a result of mechanical equipment for the new buildings associated
with the proposed project would be anticipated and no significant impact would occur.
7. The proposed project in conjunction with other past, present, or reasonably foreseeable future
projects would not result in a significant cumulative short-term noise impact due to construction
activities.
8. The proposed project in conjunction with other past, present, or reasonably foreseeable future
projects would not result in a significant cumulative long -term noise impact related to mechanical
equipment operation.
Standard Conditions
SC 4.6 -1 Construction activities shall be limited to the hours of 7:00 a.m. and 6:30 p.m. Monday
through Friday and 8:00 a.m. and 6:00 p.m. on Saturday; construction activities are
prohibited on Sunday or any federal holiday.
SC 4.6 -2 All construction activities will comply with applicable state and local construction noise
regulations.
Public Services
1. Implementation of the proposed project would not result in a significant impact to police protection
services.
2. The proposed project in conjunction with other past, present, and reasonably foreseeable future
projects would not result in a significant cumulative impact to police protection services.
12
Standard Conditions
•
SC 4.7.1 -1
The proposed site plan will be subject to review by the Newport Beach Police Department.
SC 4.7.1 -2
The proposed project shall incorporate an internal security system (e.g., security guards,
alarms, access limits after hours, etc.) that shall be reviewed by the Planning Department.
SC 4.7.1 -3
A lighting plan shall be submitted for review by the Police Department to ensure that
adequate lighting of pedestrian walkways and parking areas is provided.
SC 4.7.2 -1
All infrastructure improvements (i.e., fire hydrants, roadways, tum- arounds, etc.) shall be
designed in accordance with City standards as outlined in Design Criteria, Standard Special
Provisions and Standard Drawings for Public Works Construction.
SC 4.7.2 -2
Prior to the issuance of a building permit, the NBFMD shall review the proposed plans and
may require automatic fire sprinkler protection.
SC 4.7.2 -3
The proposed project will be constructed to comply with all applicable Uniform Building and
Fire Code requirements.
SC 4.7.2 -4
The NBFMD shall review and approve fire department/emergency access plans.
SC 4.7.2 -5
All structures shall be equipped with fire suppression systems approved by the NBFMD.
Depending upon the connection of new structures to the existing buildings, the NBFMD may
require fire sprinkler systems for all buildings to be interconnected.
SC 4.7.2 -6
All on -site fire protection (i.e., hydrants and fire department connections) shall be approved
by the NBFMD and Public Works Department.
.
SC 4.7.2 -8
On -site water mains and fire hydrant locations shall be approved by the NBFMD and Public
Works Department.
SC 4.7.2 -9
The applicant shall ensure that all tenants are required to disclose to the NBFMD any
hazardous or flammable chemicals or substances stored on the site. Further, any such
materials shall be stored in accordance with all applicable requirements established by the
NBFMD or other regulatory agency.
Utilities and Service Systems
1. Implementation of the proposed project will not result in a significant impact to electrical and natural
gas service.
2. The proposed project in conjunction with other past, present, and reasonably foreseeable future
projects would not result in a cumulative impact to the provision of electrical and natural gas service.
3. Implementation of the proposed project would not result in a significant impact on water facilities or
supply.
4. The proposed project in conjunction with other past, present, and reasonably foreseeable future
projects would not result in a significant cumulative impact to water facilities and supply.
5. Implementation of the proposed project would not result in a significant impact on sewer service.
6. The proposed project in conjunction with other past, present, and reasonably foreseeable future
projects would not result in a significant cumulative impact to the provision of sewer service.
13 ��
• 7. Implementation of the proposed project would not result in a significant impact to solid waste
disposal services.
8. The proposed project in conjunction with other past, present, and reasonably foreseeable future
projects would not result in a significant cumulative impact to solid waste disposal services.
Standard Conditions
SC 4.8.1 -1 The proposed project shall be designed to conform to Title 24, Paragraph 6, Division T -20,
Chapter 2, Subchapter 4 of the California Administrative Code pertaining to energy
conservation requirements.
SC 4.8 -1 -2 The proposed project should investigate the use of alternative energy sources (e.g., solar)
and, to the maximum extent economically feasible, incorporate the use of said energy
sources into the design of the project.
SC 4.8.1 -3 The Project Applicant will demonstrate that adequate facilities would be available to serve
the proposed project including verification from SCE.
SC 4.8.1 -4 The applicant shaft provide energy�conserving street and parking lot fighting and minimize
SC 4.8.4 -1 Prior to the issuance of the building permit, the applicant shall demonstrate that adequate
sewer facilities would be available to serve the proposed project. This would include
verifications of adequacy from the Utilities Department and the OCSD.
SC 4.8.5 -1 The proposed project will be subject to all applicable goals and strategies of the SRRE
adopted by the City of Newport Beach pertaining to the reduction of solid waste.
SC 4.8.5 -2 Prior to the occupancy of the proposed project, a program for the sorting of recyclable
material from other solid wastes shall be developed by the applicant and approved by the
General Services Department.
14 2
decorative or non - functional lighting in a manner acceptable to the Planning Director.
SC 4.8.2 -1
The proposed project shall be designed to conform to Title 24, Paragraph 6, Division T -20,
Chapter 2, Subchapter 4 of the California Administrative Code pertaining to energy
conservation requirements.
SC 4.8 -2 -2
The proposed project should investigate the use of alternative energy sources (e.g., solar)
.
and, to the maximum extent economically feasible, incorporate the use of said energy
sources into the design of the project.
SC 4.82-3
The Project Applicant will demonstrate that adequate facilities would be available to serve
the proposed project including verification from SCG.
SC 4.83-1
Final design of the proposed project shall incorporate water- saving devices for project
lavatories and other water -using facilities.
SC 4.8.3-2
Where feasible, reclaimed water should be utilized for non - contact purposes such as
irrigation.
SC 4.8.3 -3
Efficient irrigation systems which minimize runoff and evaporation should be installed.
Irrigation should be automatically timed during early morning hours to minimize waste and
evaporation.
SC 4.8.3 -4
The water system for the proposed project shall satisfy the requirements of the Irvine Ranch
Water District.
SC 4.8.4 -1 Prior to the issuance of the building permit, the applicant shall demonstrate that adequate
sewer facilities would be available to serve the proposed project. This would include
verifications of adequacy from the Utilities Department and the OCSD.
SC 4.8.5 -1 The proposed project will be subject to all applicable goals and strategies of the SRRE
adopted by the City of Newport Beach pertaining to the reduction of solid waste.
SC 4.8.5 -2 Prior to the occupancy of the proposed project, a program for the sorting of recyclable
material from other solid wastes shall be developed by the applicant and approved by the
General Services Department.
14 2
Aesthetics •
1. Implementation of the proposed project would not result in significant impacts related to aesthetics or
light and glare.
2. The proposed project in conjunction with other past, present, and reasonably foreseeable future
projects would not result in a significant cumulative impact to aesthetics and light/glare.
Standard Conditions
SC 4.9 -1 The lighting system shall be designed, directed, and maintained in such a manner as to
conceal the light source and to minimize light spillage and glare to the adjacent areas. The
plans shall be prepared and signed by a Licensed Electrical Engineer, with a letter from the
Engineer stating that, in,his or her opinion, this requirement has been met.
SC 4.9 -2 Signage and exterior lighting shall be of similar design theme throughout the project and
shall be approved by the Planning Department and Public Works Department.
SC 4.9 -3 Lighting for the proposed professional office building and parking structures shall comply
with all applicable FAA regulations regarding lighting and glare.
FINDING
The environmental effects listed above are found not to be significant with the incorporation of the standard
conditions identified for each issue.
FACTS IN SUPPORT OF FINDING •
A. The discussion and analysis in the Initial Study indicate that the environmental effects listed above
are insignificant.
B. The Draft EIR concluded that the environmental effects listed above are insignificant or would be
avoided by the implementation of standard conditions of approval identified above.
C. During the 45 -day public review period as mandated by CEQA, the Draft EIR was distributed to all
responsible and trustee agencies and other interested parties and no comments were received
which would modify the above finding.
IV. FINDINGS ON SIGNIFICANT IMPACTS OF THE PROPOSED PROJECT
A. TRANSPORTATION AND CIRCULATION
IMPACT
Short-Term Impacts: During construction of the two parking structures, existing surface and
structural parking will be eliminated, resulting in short-term parking impacts.
Finding: Changes or alterations have been required in, or incorporated into the project, or are
otherwise being implemented which substantially mitigate or avoid the significant effects on the
environment as summarized above and described in detail in Chapter 4.0, Section 4.4 of the EIR.
Facts in Support of the Finding: Implementation of the following mitigation measure will reduce
potential short-term project - related parking impacts resulting from the demolition of the existing •
parking structure to a less than significant level.
15 ('� it
MM 4.4 -1 Prior to issuance of the building permit for the first parking structure, the
applicant shall prepare an interim parking relocation plan that will be
implemented, subject to the review and approval of the City of Newport
Beach, during the construction phases of the proposed parking structures
and 10 -story office building. The interim parking plan will identify the various
methods that will be employed during the construction phase of project
implementation to meet the parking needs of the existing Office Site B
(South) office buildings, including but not limited to:
• Shuttle service to underutilized common area parking within Koll
Center Newport.
• Shuttle service to off -site parking locations.
• Valet parking to increase efficiency (i.e., density) of parking in
Office Site B (South).
All significant environmental effects have been substantially lessened by
virtue of the measure described above. No significant, unavoidable adverse
impacts will remain after implementation of the required mitigation
measures.
2. IMPACT
Long -Term Impacts: Traffic generated by the proposed project will contribute to the cumulative
degradation of the MacArthur Boulevard/Jamboree Road intersection in the City of Newport Beach
during the p.m. peak hour which is forecast to operate at an unacceptable level of service (i.e., 0.95
ICU /LOS E) with the implementation of the proposed project and buildout of other projects.
Finding: Changes or alterations have been required in, or incorporated into the project, or are
otherwise being implemented which substantially mitigate or avoid the significant effects on the
environment as summarized above and described in detail in Chapter 4.0, Section 4.4 of the EIR.
Facts in Support of the Finding; Incorporation of mitigation measures, if determined necessary,
derived from the site specific traffic analysis prescribed in the measure listed below, will reduce
potential long -term traffic and circulation conditions in the vicinity of the subject property; however,
significant impacts at this intersection will remain.
MM 4.4 -2a Prior to issuance of the certificates of occupancy, the applicant shall
contribute the project's fair share as determined by the City, to implement
the following improvements to the MacArthur Boulevard /Jamboree Road
intersection:
Add a second northbound left turn lane
Add a second southbound left turn lane
Add a northbound right turn lane
The City of Newport Beach has previously contemplated these
improvements, prior to the preparation of the KCN Traffic Impact Analysis.
Alternative preliminary design concepts for improvements to this
intersection have been prepared by the City's consultant. A cost estimate
for the design was prepared and submitted to OCTA in an effort to receive
Measure M funding. Improvements are planned for construction in 2002-
2003.
16 ('s
Finding: The measures prescribed above will significantly reduce long -term, project - related traffic
impacts at the MacArthur Boulevard/Jamboree Road intersection. Although these measures will
substantially reduce traffic impacts, they cannot be reduced to a less than significant levels. Specific
economic, legal, social, technological, or other considerations relating to the implementation of the
necessary roadway and circulation improvements make infeasible for the project to mitigate long-
term impacts at this intersection.
Facts in Support of the Finding: Any remaining unavoidable adverse impacts are acceptable when
compared to, and balanced against the facts set forth above and below in the Statement of
Overriding Considerations.
IMPACT
Lonq -Term Impacts: Traffic generated by the proposed project will contribute to the cumulative
degradation of the Jamboree Road/1 -405 NB Ramps in the City of Irvine during the a.m. peak hour
which is forecast to operate at an unacceptable level of service (i.e., 1.03 ICU/LOS F) with the
implementation of the proposed project and buildout of other projects.
Finding: Changes or alterations have been required in, or incorporated into the project, or are
otherwise being implemented which substantially mitigate or avoid the significant effects on the
environment as summarized above and described in detail in Chapter 4.0, Section 4.4 of the EIR.
Facts in Support of the Finding: Incorporation of mitigation measures, if determined necessary,
derived from the site specific traffic analysis prescribed in the measure listed below, will ensure that
future development adequately addresses the transportation and circulation conditions in the vicinity
of the subject property.
MM 4.4 -3 Prior to issuance of the certificates of occupancy, the applicant shall
contribute the project's fair share as determined by the City of Irvine, to
implement the 2020 model geometric improvements to the Jamboree
Road /1 -405 NB Ramps.
All significant environmental effects have been substantially lessened by virtue of the measure
described above. No significant, unavoidable adverse impacts will remain after implementation of the
required mitigation measures.
4. IMPACT
Long -Term Impacts: Traffic generated by the proposed project will contribute to the cumulative
degradation of the Irvine Avenue/Mesa Drive intersection in the City of Newport Beach during the
p.m. peak hour which is forecast to operate at an unacceptable level of service (i.e., 1.05 ICU /LOS
F) with the implementation of the proposed project and buildout of other projects.
Finding: Changes or alterations have been required in, or incorporated into the project, or are
otherwise being implemented which substantially mitigate or avoid the significant effects on the
environment as summarized above and described in detail in Chapter 4.0, Section 4.4 of the EIR.
Facts in Support of the Finding: Incorporation of mitigation measures, if determined necessary,
derived from the site specific traffic analysis prescribed in the measure listed below, will ensure that
future development adequately addresses the transportation and circulation conditions in the vicinity
of the subject property.
MM 4.4 -4 Prior to issuance of the certificates of occupancy, the applicant shall
contribute the project's fair share as determined by the City for the
circulation improvements for the Irvine Avenue/Mesa Drive intersection:
17 �,
• Add a third northbound through lane
• Add a third southbound through lane
• Add a southbound right turn lane
All significant environmental effects have been substantially lessened by virtue of the measure
described above. No significant, unavoidable adverse impacts will remain after implementation of the
required mitigation measures.
5. IMPACT
Long -Term Impacts: Traffic generated by the proposed project will contribute to the cumulative
degradation of the Jamboree Road/Campus Drive intersection in the City of Newport Beach during
the p.m. peak hour which is forecast to operate at an unacceptable level of service (i.e., 0.99
ICU/LOS E) with the implementation of the proposed project and buildout of other projects. No
mitigation measures have been identified. The City of Newport Beach and the City of Irvine are
evaluating the feasibility of implementing improvements to this intersection to mitigate this significant
impact. Until the appropriate mitigation is identified, this impact is considered significant and
unavoidable.
Findin : Specific economic, legal, social, technological, or other considerations relating to the
implementation of the necessary roadway and circulation improvements make infeasible for the
project to mitigate long -term impacts at this intersection. In addition, any changes or alterations are
shared with another public agency (i.e., City of Irvine) and have been, or can and should be, agreed
to and adopted by that other agency.
Facts in Support of the Finding: The unavoidable adverse impacts are acceptable when compared
to, and balanced against the facts set forth in the Statement of Overriding Considerations.
• B. AIR QUALITY
1. IMPACT
Short-Term Impacts from Construction: Project implementation will result in short-term construction
emissions resulting from the use of construction equipment. Project - related emissions of oxides of
nitrogen will exceed the significance threshold established by the SCAOMD.
Finding: Changes or alterations have been required in, or incorporated into the project, or are
otherwise being implemented which substantially mitigate or avoid the significant effects on the
environment as summarized above and described in detail in Chapter 4.0, Section 4.5 of the EIR.
Facts in Support of the Finding: Incorporation of mitigation measures will reduce potential short-term
impacts; however, significant impacts will remain.
MM 4.5 -1a The applicant shall sweep streets if silt is carried over to adjacent public
thoroughfares.
MM 4.5 -1 b Low emission on -site stationary equipment (e.g., clean fuels) shall be used
during the construction activities.
MM 4.5 -1c Traffic speeds on all unpaved road surfaces shall be reduced to 15 miles
per hour or less during construction. (A reduction in travel speeds to 15
miles per hour on unpaved road surfaces normally reduces particulate
emissions from this activity by approximately 40 percent to 70 percent.)
MM 4.5 -1d The construction contractor shall maintain construction equipment engines
by keeping them mechanically tuned.
18 (' 1
MM 4.5 -1e The construction contractor shall utilize existing power sources (e.g., power
poles) or clean fuel generators rather than temporary power generators.
MM 4.5 -1f The applicant shall provide on -site power sources during the early stages of
the project.
MM 4.5 -1g A construction parking plan shall be prepared by the applicant and /or
contractor and submitted to the City for approval. The parking plan shall
minimize traffic interference.
MM 4.5 -1 h A flagperson shall be provided to properly guide traffic and ensure safety at
construction sites.
MM 4.5 -1i The applicant and /or contractor shall schedule operations affecting traffic
for off -peak hours, where feasible.
MM 4.5 -1j A traffic plan to minimize traffic flow interference from construction activities
(the plan may include advance public notice of routing) shall be prepared
and submitted to the City for approval.
MM 4.5 -1k Truck deliveries and deliveries and the movement of goods shall be
scheduled for off -peak hours when feasible.
MM 4.5 -11 An urban tree planting program shall be incorporated into the landscape
concept plan in order to offset the loss of existing trees at the construction
site.
Finding: The measures prescribed above will significantly reduce short-term, project - related
construction impacts. Although these measures will substantially reduce air emissions during
construction, the project site is located within the South Coast Air Basin (SCAB) which has been
designated as a "non- attainment" area. Therefore, project implementation will result in unavoidable
significant adverse impacts. Specific economic, legal, social, technological, or other considerations
relating to the non - attainment status of the SCAB make infeasible for the project to mitigate
construction - related air quality impacts.
Facts in Support of the Finding: Any remaining unavoidable adverse impacts are acceptable when
compared to, and balanced against the facts set forth above and below in the Statement of
Overriding Considerations.
2. IMPACT
Long -Term, Operational Impacts: Project implementation will result in long -term pollutant emissions
resulting from mobile- and stationary sources. Project - related emissions of reactive organic gas and
oxides of nitrogen will exceed the significance thresholds established by the SCAOMD.
Findin : Changes or alterations have been required in, or incorporated into the project, or are
otherwise being implemented which substantially mitigate or avoid the significant effects on the
environment as summarized above and described in detail in Chapter 4.0, Section 4.5 of the EIR.
Facts in Support of the Finding: Potentially significant project - related operational air quality impacts
can be substantially reduced by implementing the mitigation measures identified below, as contained
in the EIR.
MM 4.5 -2a Adequate ingress and egress shall be provided at all entrances to public
facilities to minimize vehicle idling at curbsides.
19 4)
MM 4.5 -2b Provide dedicated turn lanes as appropriate and provide roadway
improvements at heavily congested roadways.
MM 4.5 -2c Improve thermal integrity of the buildings and reduce thermal load with
automated time clocks or occupant sensors.
MM 4.5-2d Install energy efficient parking lot lighting.
MM 4.5 -2e Capture waste heat and re- employ it in nonresidential buildings.
MM 4.5 -2f Landscape with native drought- resistant species to reduce water
consumption and to provide passive solar benefits.
MM 4.5 -2g Provide lighter color roofing and road materials and tree planning programs
to comply with the AOMP Miscellaneous Sources MSC -01 measure. This
measure reduces the need for cooling energy in the summer.
MM 4.5 -2h Provide bicycle lanes, storage areas, and amenities, and ensure efficient
parking management.
MM 4.5 -2i Provide preferential parking to high occupancy vehicles and shuttle
services. Also, designate additional car pool or vanpool parking.
MM 4.5 -2j Encourage employers to provide variable work hours and telecommuting to
employees to comply with Advanced Transportation Technology ATT -01.
MM 4.5 -2k Provide dedicated parking spaces with electrical outlets for electrical
vehicles.
MM 4.5 -21 Develop a trip reduction plan to comply with SCAOMD Rule 2202.
SCAOMD Rule 2202 has revamped the requirements for carpooling. In
general, mandatory carpooling is no longer required. Compliance with Rule
2202 will be mandatory.
MM 4.5 -2m Encourage employers to provide ridematching, guaranteed ride home, or
car pool or vanpool to employees as a part of the TDM program and to
comply with the ACIMP Transportation Improvements TCM -01 measure.
Finding: The measures prescribed above will significantly reduce long -term, project - related
operational impacts. Although these measures will substantially reduce operational emissions, the
site is located in a "non- attainment" area and the incremental increase constitutes an unavoidable
significant adverse impact Specific economic, legal, social, technological, or other considerations
relating to the non - attainment status of the South Coast Air Basin make infeasible for the project to
mitigate air quality impacts.
Facts in Support of the Finding: Any remaining unavoidable adverse impacts are acceptable when
compared to, and balanced against the facts set forth in the Statement of Overriding Considerations.
C. NOISE
IMPACT
Short-Term, Construction - Related Impacts: Short-term construction levels at Receptor Site 2 (UCI
Child Development Center) may reach 69 dB, depending on the type of construction equipment used
20
at the site, resulting in an increase of 4 dB over the maximum noise threshold of the City's Noise
Element (i.e., 5.5 dB over the ambient noise levels at that location).
Finding: Changes or alterations have been required in, or incorporated into the project, or are
otherwise being implemented which substantially mitigate or avoid the significant effects on the
environment as summarized above and described in detail in Chapter 4.0, Section 4.6 of the EIR.
Facts in Support of the Finding: Construction noise sources are not strictly relatable to a noise
standard because they occur only during selected times and the source strength varies sharply with
time. In accordance with the Citys General Plan Noise Element, construction activities will be limited
to within the hours specified by that Element to help minimize any potential nuisance to nearby
sensitive receptors. Therefore, project - related construction noise impacts identified above can be
substantially reduced by the mitigation measure listed below.
MM 4.6 -1 All construction equipment will be muffled and will be maintained in good
working order to reduce equipment related noise generation.
All significant environmental effects have been substantially lessened by virtue of the measures
described above. No significant, unavoidable impacts will remain after implementation of the
required mitigation measures.
D. PUBLIC SERVICES
IMPACT
Long -Term Impacts: Should closure of OCFA Station 27 occur prior to buildout of the proposed
project, or other changes occur that affect the existing level of service provided by the NBFMD,
significant impacts may occur to the current level of fire protection and emergency service to the site.
Finding: Changes or alterations have been required in, or incorporated into the project, or are
otherwise being implemented which substantially mitigate or avoid the significant effects on the
environment as summarized above and described in detail in Chapter 4.0, Section 4.7.2 of the EIR.
Facts in Support of the Finding: Potentially significant project - related impacts to police and law
enforcement services and facilities can be substantially reduced by implementing the mitigation
measure identified below, as contained in the EIR.
MM 4.7.2 -1a If the closure of OCFA Station 27 should occur prior to the buildout of the
proposed project, the Applicant shall be required to assist in the cost of an
evaluation of the current call loads, response times, and fire station
deployment in order to provide a continued adequate level of service to the
project site. If determined to be necessary by the evaluation, the Applicant
shall be responsible for the project's proportional share of the required
facilities, equipment, and staff resources identified.
MM 4.7.2 -2b Should the proposed project be subject to a business excise tax (BET), a
portion of that tax shall be directed to the NBFMD for public safety
improvements.
All significant environmental effects have been substantially lessened by virtue of the measure
described above. No significant, unavoidable adverse impact will remain after implementation of the
required mitigation measure.
0
21
• E. AESTHETICS
1. IMPACT
Long -Term Impacts: Introduction of the 2 -level parking structure in the southern portion of Office Site
B may result in changes to the site that could adversely affect the visual character of the site by
exposing portions of the parking structure and automobile parking surfaces that do not currently
exist.
Finding: Changes or alterations have been required in, or incorporated into the project, or are
otherwise being implemented which substantially mitigate or avoid the significant effects on the
environment as summarized above and described in detail in Chapter 4.0, Section 4.9 of the EIR.
Facts in Support of the Finding: Potentially significant project - related visual impacts can be
substantially reduced by implementing the mitigation measure identified below, as contained in the
EIR.
MM 4.9 -1a The concrete sides of the 2 -level parking structure shall be textured and
colored for faced with brick or other material consistent with the structure's
associated buildings. Exposed, uncolored concrete sides shall be avoided.
MM 4.9 -1b Linear planters and /or trellises with shrubs and cascading vines shall be
provided along the outside of the upper parking level to soften the visual
appearance of the structure.
All significant environmental effects have been substantially lessened by virtue of the measure
• described above. No significant, unavoidable adverse impact will remain after implementation of the
required mitigation measure.
The EIR analyzed the cumulative impacts of the project when considered together with other past,
present and reasonably foreseeable future projects which were identified in the EIR. The EIR
concluded that, with the exception of the cumulative impacts on traffic and circulation with respect
to two intersections in the City and long-term, cumulative operational air quality impacts, all of the
cumulative impacts of the project when considered together with the related projects were less than
significant. For these two unavoidable, adverse cumulative impacts, specific economic legal, social,
technological, or other considerations, including provision of employment opportunities for highly
trained workers, make infeasible mitigation measures or alternatives which would avoid or
substantially lessen the significant cumulative environmental effects identified in the EIR. Any
remaining unavoidable, cumulative traffic and circulation impacts and long-term, cumulative air
quality impacts are acceptable when compared to, and balanced against the facts set forth above
and below in the Statement of Overriding Considerations.
V. FINDINGS REGARDING ALTERNATIVES TO THE PROPOSED PROJECT
CEOA requires that an EIR describe a range of reasonable alternatives to the project, or to the location of the
project, which could feasibly attain most of the basic objectives of the project and to evaluate the comparative
merits of the alternatives. Section 15126(d)(1) of the State CEOA Guidelines states that the "... discussion
of alternatives shall focus on alternatives to the project or its location which are capable of avoiding or
substantially lessening any significant effects of the project, even if these alternatives would impede to some
degree the attainment of the project objectives, or would be more costly."
The proposed project has been compared to several "feasible" alternative development scenarios, including
the No Project alternative as prescribed by CEOA. These alternatives include: (1) No Project (i.e., Existing
City General Plan and Koll Center Newport PC); (2) No Development (no additional development, including
15,000 square feet of allowable retail use); (3) Reduced Development Intensity (82,000 square feet of
22
91
professional office development); (4) Alternative Land Use (Industrial/Research and Development); and (5) •
Alternative Location.
The analysis contained within the EIR concludes that, with the exception of the project - related cumulative
traffic impacts, air emissions that contribute to and exacerbate the existing ambient conditions in the SCAB
that has been identified as a "non- attainment" area, and cumulative solid waste impacts, the proposed project
will not result in any other long -term project- specific adverse impacts that cannot be mitigated to a less than
significant level. Further, the potential impacts of the proposed project itself have not been found to
significantly impact any sensitive environmental resource which might be avoided by development at another
location. The following discussion summarizes the potential environmental consequences and highlights the
comparative merits associated with each alternative identified as "potentially feasible" and analyzed in the
EIR as well as the "No Development" alternative.
A. NO PROJECT (EXISTING GENERAL PLAN /KOLL CENTER NEWPORT PC)
The No Project alternative would allow development of the subject property in accordance with the Koll
Center Newport Planned Community land uses adopted by the City of Newport Beach for Office Site B.
According to the Koll Center Newport PC, approximately 15,000 square feet of yet undeveloped retail (10,000
square feet) and restaurant (5,000 square feet) uses have been approved within Office Site B; however,
these uses have not been implemented.. The No Project alternative analyzes the development of the
remainder of the approved retail and restaurant uses approved for Office Site B.
SUMMARY OF MAJOR ENVIRONMENTAL EFFECTS
Potential impacts identified in the Draft EIR that would be anticipated from implementation of the proposed
project would also occur if the "No Project" alternative were approved by the City; however, some of the most
significant impacts (e.g., traffic, noise, aesthetics, etc.) would be reduced proportionately with the elimination
of the 250,000 square feet of office development that would be replaced with the 15,000 square feet of retail •
space and restaurant uses permitted by the adopted Koll Center Newport Planned Community.
Proiect Obiectives: Although implementation of this alternative would be consistent with the adopted plans for
the site, it is inconsistent with the desired major project objectives. In particular, this alternative would not
achieve the goal of facilitating connectivity with the existing and future Conexant development located
adjacent to the subject property.
Feasibility: This alternative is feasible and can be implemented pursuant to the adopted plans for the site
Elimination /Reduction of Significant Impacts: This project is effective at reducing potential traffic and (long-
term) air quality impacts; however, other impacts will be similar as described for the proposed project.
Comparative Merits: With the exception of the No Development alternative, this alternative, along with the
reduced development intensity alternative would reduce project - related impacts and is comparatively superior
to the proposed project.
B. NO DEVELOPMENT (NO ADDITIONAL EXPANSION)
This alternative would allow the continuation of the existing professional office and parking facilities that
currently occupy the site. Although the KCN Planned Community has been approved for additional 15,000
square feet of retail and restaurant uses (refer to the description of the No Project alternative), this alternative
assumes that such development would not occur, even though permitted by the Koll Center Newport PC land
use allocations. No additional land use entitlements would be requested or required.
SUMMARY OF MAJOR ENVIRONMENTAL EFFECTS
The same environmental consequences identified in the City's General Plan EIR would also be anticipated
under this alternative; however, they would most likely occur at a slower rate than those anticipated as a
23 n
-1 �
• result of implementing the proposed project. This is due, primarily, to the limited activities undertaken by the
Community Development Commission pursuant to the Central City Redevelopment Plan.
Proiect Obiectives: Without additional professional office development as proposed, none of the
applicant/City objectives would be achieved. IN particular, facilitating connectivity with the adjacent
Conexant project and providing additional jobs in the City of Newport Beach 'would not occur.
Feasibility: Although the No Development alternative is considered to be "environmentally superior"
to the other alternatives, it is not feasible when considering the current demand for additional office
space in the City of Newport Beach and the availability of land currently designated for professional
office and administrative uses. Implementation of this alternative may have the effect of placing
development pressures for professional office development in other areas of the City (or subregion)
that are currently not designated fur use uses.
Elimination /Reduction of Significant Impacts: By eliminating all of the project - related impacts, this
alternative is considered to be the "environmentally superior" alternative when compared to the other
alternatives.
Comparative Merits: Implementation of this alternative would effectively reduce all of the project -
related impacts, including those resulting from increased traffic, short- and long -term air quality
emissions, short-term noise increases, and potential impacts to fire protection.
C. REDUCED DEVELOPMENT INTENSITY
This alternative includes the same land use (i.e., professional office); however, the intensity of development
has been reduced to yield only 82,000 square feet of gross leasable area in order to eliminate the proposed
project's potential traffic and circulation impacts. Based on this figure, the proposed building would be
approximately four stories in height and occupy the same location as the proposed project. In addition, rather
than requiring two parking structures (i.e., a 6 -level structure to replace the existing 2 -level structure and an
additional 2 -level structure), this alternative would require either increasing the capacity of the existing 2 -level
structure (i.e., demolish the 2 -level and replace it with a 3- or 4 -level structure) or constructing a 2 -level
structure as currently proposed in the southern parking lot to accommodate the additional, 235 parking
spaces that would be required for the 82,000 square foot addition. While less intense than the proposed
project, this alternative would still necessitate the approval of a General Plan Amendment and amendment to
the PC District regulations, as well as a TPO approval and other related approvals similar to the proposed
project.
SUMMARY OF MAJOR ENVIRONMENTAL EFFECTS
Implementation of this alternative will generally result in the similar, but proportionately reduced
environmental consequences described for the proposed project. Specifically, project - related traffic resulting
from this alternative will not reach the "significance thresholds" established by the Citys TPO and Orange
County CMP criteria. Further, when receiving credit for the retail and restaurant development, no significant
traffic impacts would occur. Therefore, the significant, unavoidable traffic impacts would be avoided. Other
long -term air quality and noise impacts would be reduced proportionately. As a result, impacts to the Citys
sewer, water, storm drain and circulation system could be exacerbated.
Proiect Obiectives: Although the project and City objectives of creating connectivity with the adjacent
Conexant project and providing additional jobs in the City of Newport Beach would occur, it would do
so to a limited degree and may not be adequate to meet the current demands for additional office
space in the area by Conexant or other potential tenants of the project.
Elimination /Reduction of Significant Impacts: Similarly to the No Project alternative, implementation
of this alternative would effectively reduce all of the significant project - related impacts, including
• those resulting from increased traffic (e.g., noise, air quality).
24 C
Feasibili : Although this alternative may be feasible, it is not a completely efficient use of the site for •
the proposed use in order to meet the current demand for professional office development in the City
of Newport Beach.
Comparative Merits: This alternative is considered to the comparatively "superior," along with the No
Project alternative, when compared to the proposed project and other alternatives. As indicated
above, project - related impacts would be reduced and no significant unavoidable impacts would
occur.
D. ALTERNATIVE LAND USE (INDUSTRIAL/RESEARCH AND DEVELOPMENT)
Given the proximity to Industrial Site 1 within Koll Center Newport as well as the type and character of
development in the area surrounding the subject property, light industrial/research and development uses
could be reasonably developed on the subject property. This alternative although similar in intensity as the
proposed project, would comprise light industrial development, similar in nature to the adjacent Conexant
facility located within Industrial Site 1, also in the KCN Planned Community. Up to 250,000 (gross) square
feet of laboratory and office support facilities could be developed on within Office Site B. In addition to this
expansion, site development would also necessitate similar facilities as the proposed parking structure,
including the likely demolition of the 2 -level parking structure and replacement with a 6 -level facility as well as
an additional 2 -level parking structure.
SUMMARY OF MAJOR ENVIRONMENTAL EFFECTS
Implementation of the Alternative Land Use will result in virtually the same impacts as the proposed project.
The 250,000 square feet of industrial /research and development space on the subject property would
generate cumulative degradation of several intersections in the City of Newport Beach, resulting in projected
unacceptable levels of service in the long -term. Similarly, air quality impacts would also be commensurate
with the proposed project and would be significant. Both unavoidable traffic and air quality impacts would be
the same as described for the proposed project. Other impacts, including those to water quality, noise, and
aesthetics would be similar to the proposed project as well.
Proiect Objectives: Due to the similarity of this alternative with the proposed project, virtually all of the
applicant/City objectives would be achieved. Most importantly, connectivity with the adjacent
Conexant project would occur, as with the proposed project, and additional jobs would be created in
the City of Newport Beach.
Elimination /Reduction of Significant Impacts: Implementation of this alternative would generally result
in all of the impacts that were described for the project, including increases in traffic, short- and long-
term air quality emissions, short-term noise increases, etc.).
Feasibili : This alternative is feasible and, as indicated above, would allow the applicant to achieve
all of the project objectives.
Comparative Merits: When comparing this alternative to the other alternatives, its impacts are similar
to those of the proposed project and are greater than most of the alternatives.
E. ALTERNATIVE SITE
The State CEOA Guidelines require, where feasible alternative locations exist, that an EIR analyze such an
alternative location if potential project impacts would be lessened by implementing the project in another
location. Such a potential site exists within the Koll Center Newport PC north of the proposed location within
Office Site B. This alternative includes development of the proposed project at a site located north of the
subject property and west of Industrial Site 1, also within Office Site B. The project parameters are the same
as the proposed project and include the development of 250,000 (gross) square feet of professional office
space. In addition to the office space, adequate parking would also be required to serve the site. This parking •
could be in the form of parking structures, surface parking or a combination of these two forms.
25 G �{
SUMMARY OF MAJOR ENVIRONMENTAL EFFECTS
Implementation of the Alternative Site will result in virtually the same impacts as the proposed project. The
250,000 square feet of industrial/research and development space on the subject property would generate
cumulative degradation of several intersections in the City of Newport Beach, resulting in projected
unacceptable levels of service in the long -term. Similarly, air quality impacts would also be commensurate
with the proposed project and would be significant. Both unavoidable traffic and air quality impacts would be
the same as described for the proposed project. Other impacts, including those to water quality, noise, and
aesthetics would be similar to the proposed project as well.
Proiect Objectives: Due to the similarity of this alternative to the proposed project, all of the project
objectives would be achieved, including those that would benefit the City of Newport Beach. Most
importantly, connectivity with the adjacent Conexant project could occur, as with the proposed
project, and the City of Newport Beach would receive the benefit of additional jobs that would be
created to satisfy the local demand.
Elimination /Reduction of Significant Impacts: Implementation of this alternative would generally result
in all of the impacts that were described for the proposed project, including those resulting from
increased traffic (i.e., short- and long -term air quality emissions and short-term noise increases). In
addition, traffic impacts will remain significant, as identified and described for the proposed project.
Feasibili : As indicated above, this project is not only similar to the proposed project but it would also
achieve the stated project objectives and is feasible to implement. Further, the development would
be provided on a site that is currently designated to accommodate the proposed use.
Comparative Merits: When comparing this alternative to the proposed project and the other
. alternatives, its impacts are similar to those of the proposed project and are greater than the other
alternatives.
0
VI. GENERAL FINDINGS
1. The plans for the project have been prepared and analyzed so as to provide for public
involvement in the planning and CEQA processes.
2. The degree that any impacts described in the EIR are perceived to have a significant effect
on the environment, or such impacts appear ambiguous as to their effect on the
environment, any significant effect of such impacts has been substantially lessened or
avoided by the standard conditions and mitigation measures set forth in the Final EIR or is
outweighed by the facts set forth in the Statement of Overriding Considerations.
3. Comments regarding the Draft EIR received during the public review period have been
adequately responded to in written Responses to Comments attached to the Final EIR. Any
significant effects described in such comments were avoided or substantially lessened by
the standard conditions mitigation measures described in the Draft EIR or are outweighed by
the facts set forth in the Statement of Overriding Considerations.
4. The analysis contained in the Draft EIR of the environmental effects and mitigation
measures represent the independent judgment and analysis of the City of Newport
Beach.
26
EXHIBIT EIR -4:
STATEMENT OF OVERRIDING CONSIDERATIONS
9
•
)�
STATEMENT OF OVERRIDING CONSIDERATIONS
OFFICE SITE B EXPANSION - KOLL CENTER NEWPORT PC
I. INTRODUCTION
This City Council adopts and makes this Statement of Overriding Considerations concerning the
Koll Center Newport project's unavoidable significant impacts in order to explain why the project's
benefits override and outweigh its unavoidable impacts.
The project will bring substantial benefits to the City of Newport Beach, including but not limited
to, the provision of jobs for highly- trained workers, the provision of additional professional office
development in close proximity to existing and proposed residential sectors, the realization of a net
annual recurring revenue surplus of approximately $52,000, the payment of a traffic mitigation fee
of $8.00 per square foot of the allowed additional building entitlement, or $2 million, the payment
of $0.45 per square foot of the allowed additional building entitlement, or $112,500, for the purpose
of funding a Planning Study for the John Wayne Airport area, and the payment of a $60,000 "fair
share" fee to contribute to the cost of a new fire station to serve the Koll Center Newport Planned
Community and other nearby areas of the City.
The City Council finds that the project's unavoidable impacts are acceptable in light of the project's
benefits. Each benefit set forth in this Statement constitutes an overriding consideration warranting
approval of the project, independent of the other benefits, despite each and every unavoidable
is impact.
II. UNAVOIDABLE ADVERSE IMPACTS
The Environmental Impact Report and City staff review identified the following impacts that could
not be mitigated to a less than significant level.
Transportation and Circulation
At two intersections where significant cumulative traffic impacts are forecast as a result of project -
related traffic, i.e. MacArthur Boulevard/Jamboree Road and Jamboree Road/Campus Drive, no
feasible mitigation measures have been identified. The feasibility of implementing improvements to
these intersections that will mitigate the significant impacts are being evaluated. However, until the
appropriate improvements are identified, these impacts are considered significant and unavoidable:
Impact 4.4 -2: Traffic generated by the proposed project will contribute to the cumulative
degradation of the MacArthur Boulevard/Jamboree Road intersection in the
City of Newport Beach during the p.m. peak hour, which is forecast to
operate at an unacceptable level of service (i.e., 0.95 ICU/I.OS E) with the
implementation of the proposed project and buildout of other projects. [note:
above ICU number is correction of typographical error in Draft EIR]
Impact 4.4 -5: Traffic generated by the proposed project will contribute to the cumulative
degradation of the Jamboree Road/Campus Drive intersection in the City of
Newport Beach during the p.m. peak hour, which is forecast to operate at an
unacceptable level of service (i.e., 0.99 ICU/LOS E) with the
implementation of the proposed project and buildout of other projects.
Air Quality
Because an individual development cannot carry out measures that would substantially reduce
vehicle trips (VT) generated or vehicles miles traveled (VMT), effective programs that reduce
single- occupant vehicle trips must be more regional in nature. Transit availability, bicycle paths,
park -and -ride facilities, HOV lanes, etc., as important elements of any VT/VMT reduction
programs, can only be integrated on a City- or county- or basin -wide basis rather than through the
efforts of any single residential subdivision. The ability of any developer to effect pollution
reducing travel mode choices by future occupants is small. As a result, the project - related air quality
impacts and cumulative impacts will remain significant and unavoidable. These significant
unavoidable air quality impacts include:
Impact 4.5 -1: Project implementation will result in short -term construction emissions
resulting from the use of construction equipment. Project- related emissions
of oxides of nitrogen (NOx) will exceed the significance threshold
established by the SCAQMD.
Impact 4.5 -2: Project implementation will result in long -term pollutant emissions resulting
from mobile and stationary sources. Project - related emissions of reactive
organic gas ROG) and oxides of nitrogen (NOx) will exceed the significance
thresholds established by the SCAQMD.
In addition to the impacts of the project described above, the project, in conjunction with other past,
present, and reasonably foreseeable future projects will result in significant cumulative impacts
related to several intersections within the City for which no feasible mitigation measures have been
identified. Additionally, the project, in conjunction with other past, present and foreseeable future
projects will exacerbate the currently degraded regional ambient air quality and will have an
unavoidable significant long -term cumulative impact on air quality, even after implementation of
mitigation.
III. OVERRIDING CONSIDERATIONS
The proposed project consists of the adoption of a General Plan Amendment, an Amendment to the
Planned Community District Regulations adopted for the Koll Center Newport Planned
Community, a development agreement, and related actions. Analysis in the Environmental Impact
Report (EIR) for this project has concluded that implementation of the proposed project will result
in long -term, project - related and cumulative impacts that cannot be mitigated to a less than
significant level. Impacts in these and other cases have been mitigated to the extent considered
feasible. All significant adverse impacts are identified in the EIR and are addressed in the Statement
2
0 of Findings for the project
The Newport Beach City Council determines that the residual unavoidable adverse air quality and
traffic impacts identified in Section II which will remain after mitigation are outweighed by specific
economic, legal, social, technological, or other benefits of the project. In making this determination,
the following factors and public benefits were considered as overriding considerations that apply to
each unavoidable impact.
1. The project provides short-term construction jobs and will also foster the provision
of jobs for highly- trained workers that will strengthen the City's existing general
employment base.
2. The project provides additional professional office development in close proximity to
existing and proposed residential sectors of the City and County, thereby providing
the opportunity to reduce commute distances and reduce traffic and air emissions.
3. The proposed development is designed and landscaped so as to provide an
aesthetically pleasing business environment that is compatible with the surrounding
professional office and commercial areas within the John Wayne Airport complex.
4. Project implementation will result in a net annual recurring revenue surplus of
approximately $52,000, based on the fiscal impact analysis prepared for the project.
As a result, the project will pay for itself and will not require City funds or resources
to provide needed public facilities and services.
5. The Project will provide resources to the Newport-Mesa Unified School District via
payment of a floor area development fee assessed to new commercial development
under state law.
6. The Project will pay transportation fees to the San Joaquin Hills Transportation
Corridor Joint Powers Authority and/or Transportation Corridor Agencies for
improvements to regional transportation facilities, including the San Joaquin Hills
Transportation Corridor.
7. The Project will pay "Fair Share Traffic Fees" in the amount of $235,570 for
circulation improvements that will be constructed in the City of Newport Beach.
These improvements will be undertaken by the City to alleviate unacceptable service
levels at intersections and along roadway segments both in the project area and in the
City of Newport Beach.
8. The Project will pay a Traffic Phasing Ordinance fee of $70,000 to contribute to the
improvements identified for the MacArthur Boulevard/Jamboree Road intersection.
These improvements include the construction of a second northbound left turn lane
on MacArthur Boulevard, a second southbound left -turn lane on MacArthur
Boulevard, and a second northbound right -turn lane on MacArthur Boulevard.
3
Implementation of these improvements will fully mitigate the short -range impacts of
project trips at that intersection.
9. The Project will pay a mitigation fee of $8.00 per square foot of the allowed 250,000
gross square feet of additional entitlement, or $2 million. Those funds will be used to
pay for mitigating the long -range traffic impacts at intersections in the area of the
project.
10. The Project will pay a fee of $0.45 per square foot for the allowed 250,000 gross
square feet of additional entitlement, or $112,500, to the City of Newport Beach to
be used by the City solely for the purpose of funding a Planning Study for the John
Wayne Airport area. The planning study will determine the type and intensity of
further development which should be permitted in the area and the road and other
infrastructure improvements which will be needed to accommodate existing and
future development.
11. The Project will pay a $60,000 "fair share" fee of the estimated $2,000,000 needed to
construct and equip a new fire station in the City of Newport Beach that will serve,
not only the Kell Center Newport Planned Community, but also a larger service area
identified by the City. The $60,000 paid by the project applicant will be used solely
to fund the acquisition of a new fire station site, the construction of a new fire
station, and/or the equipment/staffing of the station.
12. The proposed project will help to achieve several goals and policies articulated in the
Newport Beach General Plan, including the following:
a. The City shall provide for su)fficient diversity of land uses so that schools,
employment, recreation areas, public facilities, churches and neighborhood
shopping centers are in close proximity to each resident of the community: The
project consists of the intensification of office development on a project site that
is already designated for and substantially developed in Administrative,
Professional and Financial Commercial use. Since the project site is located in
proximity to residential areas, the additional employment opportunities resulting
from construction of a new 250,000 square -foot office tower on the site would
contribute to a more desirable jobs- housing balance in the area.
b. The siting of new buildings and structures shall be controlled and regulated to
insure, to the extent practical, the preservation of public views, the preservation
of unique natural resources, and to minimize the alteration of natural land forms
along bluffs and cliffs: The site of the new office tower is set back substantially
from both MacArthur Boulevard and Jamboree Road in order to mitigate visual
impacts from public streets. One of the new parking structures will be located
close to the intersection of MacArthur and Jamboree. However, this two -level
structure will be depressed partially below grade and the perimeter of the
structure will be heavily landscaped in order to soften public views. Additionally,
4 0
• the existing two -level parking structure just north of the existing twin ten -story
office towers will be replaced with a new six -level structure located 200 feet
further back from Jamboree and 50 feet further back from MacArthur than the
existing structure. Per design standards added to the PC text, both new parking
structures will be textured and landscaped to soften their visual impacts.
•
c. The City shall develop and maintain suitable and adequate standards for
landscaping, sign control, site and building design, parking and undergrounding
of utilities and other development standards to insure that the beauty and charm
of existing residential neighborhoods is maintained, that commercial and office
projects are aesthetically pleasing and compatible with surrounding land uses
and that the appearance of, and activities conducted within, industrial
developments are also compatible with surrounding land uses and consistent
with the public health, safety and welfare: The PC District Plan, i.e. the KCN
Planned Community text, contains extensive landscaping standards for different
building heights. In the case of the proposed ten -story building, substantial
landscaping will be required within Office Site B to soften and mitigate the
development. The PC text also contains detailed standards for parking, signs and
other development standards.
5 col
EXHIBIT EIR -5: •
MITIGATION MONITORING AND REPORTING PROGRAM
•
LJ
16)�
MITIGATION MONITORING AND REPORTING PROGRAM
•
KOLL CENTER NEWPORT
INTRODUCTION
The California Public Resources code Section 2108.16 requires that a lead or responsible agency
adopt a mitigation monitoring and reporting program (MMRP) when approving or carrying out a
project where an environmental document, either an environmental impact report (EIR) or a
mitigated negative declaration, has identified measures to reduce potential adverse environmental
impacts to levels that are less than significant. An EIR has been prepared for this project which
addresses the potential environmental impacts and, where appropriate, recommends measures to
mitigate these impacts. An MMRP is, therefore, required to ensure that adopted mitigation
measures are successfully implemented. The City of Newport Beach is the lead agency for the
Koll Center Newport Planned Community (PC) project and, therefore, is responsible for
implementation of the MMRP. This report describes the MMRP for the Koll Center Newport PC
project and identifies the department in the City of Newport Beach that will be responsible for
monitoring implementation of the MMRP.
MITIGATION MONITORING AND REPORTING PROGRAM MANAGEMENT
The MMRP for the Koll Center Newport PC project will be active through all phases of the project,
including design, construction, and operation. The proposed project will be developed in phases
and will include building permits, occupancy permits and other permits required for
implementation of the project components. There are mitigation measures that must be
. continuously implemented throughout the development of the project site. For example, mitigation
measures implemented 'prior to building permits" must be implemented prior to the issuance of
each building permit issued for the project. The enforcement of the MMRP is also the
responsibility of the City of Newport Beach. The City personnel responsible for verifying
compliance with the mitigation measures are identified in the MMRP and include the Planning
Director, the Director of Public Works, Utilities Director, and the City Engineer, and City Traffic
Engineer (or their designees). These department heads are responsible for ensuring that the
mitigation measures are implemented by the project applicant. If an adopted mitigation measures
is not being properly implemented, the designated monitoring personnel shall require corrective
actions to ensure adequate implementation.
MITIGATION MONITORING AND REPORTING PROGRAM
The attached table identifies the mitigation program required to be implemented by the project
applicant for the Koll Center Newport PC project. The mitigation program includes the following
components: (1) standards conditions (SCs); and (2) mitigation measures (MMs). The table
identifies the timing of implementation, the respective measure (i.e. SC or MM) required, and the
individual responsible for monitoring compliance. The MMRP also includes columns that will be
used by the compliance monitor to document when implementation of the measure is completed.
Mitigation Monitoring and Reporting Program
Koji Center Newport PC - Office Site B
Page 1
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EXHIBIT EIR -6: .
ERRATA CORRECTIONS TO DRAFT EIR
0
0
)''l
• ERRATA CORRECTIONS TO DRAFT ENVIRONMENTAL
IMPACT REPORT
KOLL CENTER NEWPORT
OFFICE SITE B
1. Table 1 -1, (Transportation and Circulation), Page 1 -8
Delete entry in last row of table related to Jamboree Road/Bristol Street North (Potential Impacts,
Mitigation Measures and Level of Significance after Mitigation.
2. Table 3 -1, Page 3 -5
Revise column 5 (P.C. Text - Square feet) in line 2 (Office Site B) to read:
963,849 square feet.
Revise column 5 (P.C. Text - Square feet) in line 8 (Sub -Total Office) to read:
2,385,600 square feet
Revise column 5 (P.C. Text - Square Feet) in line 12 (Total) to read:
• 2,981,485 square feet
3. Section 3.4.1, Page 3.6
Delete the third paragraph and replace it with the following text:
"The General Plan Amendment proposes a 250,000 square -foot increase in the Land Use Element's
maximum gross floor area for Office Site B. In addition to this General Plan Amendment, the KCN Planned
Community District Plan (PC text) must also be amended to increase the amount of office square footage
allocated to Office Site B.
"The General Plan Land Use Element specifies building square footage as gross floor area. By contrast, the
PC text lists square footage as net floor area. Per the Zoning Code, gross floor area includes all floor area
within the exterior wall surface of a building while net floor area excludes non - habitable space, such as
equipment rooms, elevator shafts, stairwells, etc.
"As used by the City, net floor area is considered to be 95 percent of gross floor area. Therefore, the
proposed General Plan increase in gross floor area of 250,000 square feet corresponds to an increase in net
floor area in the PC text of 237,500 square feet. Currently, 963,849 net square feet of office development is
permitted within Office Site B. Approval of the proposed PC text amendment would bring the total amount
of professional and business office use in Office Site B to 1,201,349 net square feet (i.e., 963,849 net square
feet + 237,500 net square feet).
. "In addition to the PC's allocated office use, there are separate unused allocations for 5,000 square feet of
restaurant space and 10,000 square feet of retail /service space in Office Site B. The PC text provides that
these 15,000 square feet, if not used, will automatically revert to office use. Therefore, the proposal includes
115
this `reverted" restaurant/retail space within the 237,500 square feet of new office use. (Thus, the total .
increase in net square footage will actually be 222,500 (i.e., 237,500 net square feet - 15,000 net square
feet). For purposes of clarity, the PC text amendment will explicitly convert the above restaurant/retail space
to office use."
4. Section 3.4.2, Page 3 -7
Change Zone Change (Koll Center Newport Planned Community District Regulations "bullet' to
read:
Approval of an amendment to the Koll Center Newport Planned Community District
Regulations dated May 5, 1972 (Amended August 10, 1988) to increase the amount of office
space within Office Site B. In addition, the PC text will be revised as necessary to permit the
proposed 250,000 (gross) square feet (i.e., 237,500 net square feet, based on 95 percent of
gross) of additional professional office development, including the elimination of the currently
approved but not developed restaurant and retail area remaining within Office Site B. As a
result, a total of 222,500 net square feet of office space (237,500 net square feet - 15,000 net
square feet of restaurant/retail space) will be added to the PC text for Office Site B.
Amendment No. 26, as currently proposed, is included as Appendix C.
5. Section 1.5, Page 1 -7 (Row 2, Column 1) and Section 4.4.5, Page 4.4 -25
Replace Impact 4.4 -2 with the following:
Impact 4.4 -2 Traffic generated by the proposed project will contribute to the cumulative degradation of •
the MacArthur Boulevard/Jamboree Road intersection in the City of Newport Beach during
the p.m. peak hour which is forecast to operate at an unacceptable level of service (i.e., 0.95
ICU/LOS E) with the implementation of the proposed project and buildout of other
projects.
6. Section 4.4.5, Page 4.4 -26
Delete Impact 4.4 -6 and MM 4.4 -6.
Section 4.4.6, Page 4.4 -27
Add the following impact as a significant, unavoidable impact before Impact 4.4 -5:
Impact 4.4 -2 Traffic generated by the proposed project will contribute to the cumulative degradation of
the MacArthur Boulevard/Jamboree Road intersection in the City of Newport Beach during
the p.m. peak hour which is forecast to operate at an unacceptable level of service (i.e., 0.95
ICU/LOS E) with the implementation of the proposed project and buildout of other
projects.
0
2 '�W
8. Chapter 9.0, Section 4.4 (Transportation and Circulation), Page 9 -5
Delete MM 4.4 -6.
9. Chapter 10.0, Section 4.4 (Transportation and Circulation), Page 10 -1
Add the following impact before Impact 4.4 -5:
Impact4.4 -2 Traffic generated by the proposed project will contribute to the cumulative degradation of
the MacArthur Boulevard/Jamboree Road intersection in the City of Newport Beach during
the p.m. peak hour which is forecast to operate at an unacceptable level of service (i.e., 0.95
ICU/LOS E) with the implementation of the proposed project and buildout of other
projects.
L
0
�) I
0
ATTACHMENT 5:
DRAFT DEVELOPMENT AGREEMENT ORDINANCE
0
0
}`!
. ORDINANCE
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH APPROVING A DEVELOPMENT
AGREEMENT FOR KOLL CENTER NEWPORT OFFICE
SITE B [DEVELOPMENT AGREEMENT NO. 161
WHEREAS, Koll Center Newport Number A ( "Developer "), 1900 Main Street, Suite 350,
Irvine, California, has applied to the City of Newport Beach ( "City ") for a General Plan
Amendment and a Planned Community Amendment for "Office Site B" of the Koll Center
Newport (KCN) Planned Community in order to allow future additional development on Parcel 1
of PMB 114/22 -24 and Parcels 1, 2, and 7 of PMB 181/13 -19; and
WHEREAS, the proposed General Plan Amendment would increase the allowable building
floor area of KCN Office Site B by 250,000 gross square feet, to a maximum of 1,310,898 gross
square feet; and
WHEREAS, a Development Agreement was prepared, attached hereto as Exhibit "DA -1" ;
and
• WHEREAS, the Development Agreement provides for certain rights, obligations, and
assurances on the parts of both the City and the Developer; and
WHEREAS, on August 3 and September 7, 2000 and June 7, 2001, the Planning
Commission held duly- noticed public hearings, and, at the conclusion of the hearing and after
considering the evidence and arguments submitted by the City staff, Developer, and all interested
parties, adopted a resolution recommending that the City Council approve the Development
Agreement; and
WHEREAS, on June 26, 2001, the City Council held a public hearing and considered the
Development Agreement, the recommendation of the Planning Commission, and the evidence and
arguments submitted by the City staff, Developer, and all interested parties A notice of time, place
and purpose of the public hearing was duly given and testimony was presented to and considered by
the City Council at the public hearing.
THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH DOES HEREBY
ORDAIN AS FOLLOWS:
•
gal
SECTION 1: ENVIRONMENTAL REVIEW. Pursuant to CEQA and the CEQA
Guidelines, an Environmental Impact Report (EIR) has been prepared for the project addressed by
the Development Agreement. Subsequent to the preparation and distribution of the Draft EIR for
public review and comment, the City of Newport Beach and the project applicant mutually agreed
to enter into a Development Agreement for the proposed project. The Development Agreement
provides additional mitigation for project impacts in the form of fees for road improvements and
other items. Although this discretionary action was not identified in the project description
contained in the Draft EIR, a review of its implications on the environmental analysis conclusively
shows that its implementation will not result in any additional significant impacts beyond those
addressed in the Draft EIR, result in a substantial increase in the severity of any significant impacts
addressed in the Draft EIR, and/or require the incorporation of additional mitigation measures.
Therefore, the environmental analysis presented in the Draft EIR adequately evaluated all of the
potential impacts of project implementation, including those related to the approval and
implementation of the Development Agreement. After reviewing the EIR, all comments received
during the public review process, and all responses to those comments, the City Council has
certified the EIR as complete, reflecting the independent judgment of the City of Newport Beach. .
All records pertaining to preparation, review, and comment on the EIR are retained in the Planning
Department of the City of Newport Beach.
SECTION 2: DEVELOPMENT AGREEMENT.
a. The Development Agreement is consistent with the objectives, policies, general land
uses, and programs of the General Plan of the City in that it supports and implements
the project and its associated General Plan Amendment and Zoning Amendment, which
provide for land use designations and other components which are consistent with the
General Plan, as amended.
b. The City Council hereby approves and adopts the Development Agreement, attached
hereto as Exhibit "DA -1 ". The Mayor is hereby authorized to execute the Amendment
and, following such execution, the City Clerk shall cause a copy thereof to be recorded
with the Orange County Recorder.
2 1.
SECTION 3: The Mayor shall sign and the City Clerk shall attest to the passage of this
Ordinance. This Ordinance shall be published once in the official newspaper of the City, and the
same shall become effective thirty (30) days after the date of its adoption.
This Ordinance was introduced at a regular meeting of the City Council of the City of Newport
Beach held on June 26, 2001 and adopted on July 10, 2001 by the following vote, to wit:
ATTEST:
CITY CLERK
Fj
AYES, COUNCIL MEMBERS
NOES, COUNCIL MEMBERS
ABSENT COUNCIL MEMBERS
MAYOR
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EXHIBIT DA -1:
DEVELOPMENT AGREEMENT
Recording Requested By and
When Recorded Return to:
City Clerk
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92660
DEVELOPMENT AGREEMENT
BETWEEN
THE CITY OF NEWPORT BEACH
AND •
KOLL CENTER NEWPORT NUMBER A
Approved , 2000
Ordinance No. 00-
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0 DEVELOPMENT AGREEMENT
This Development Agreement ( "Agreement') is executed as of
2000, ( "Approval Date ") by and between the CITY OF NEWPORT BEACH ( "CITY "), and
KOLL CENTER NEWPORT NUMBER A ( "OWNER ").
1. RECITALS.
1.1 Property /Ownership Status. OWNER owns all of the real property
( "Property') described on Exhibit "A" and depicted on Exhibit "B," consisting of
approximately five (5) acres.
1.2 Planning Status. The Property comprises a portion of Office Site B" known
as "Professional and Business Office Site B" of the Koll Center Newport Planned
Community, which is currently entitled with approximately one million (1,000,000) square
feet of office development.
1.3 Project. OWNER has asked CITY to approve a general plan amendment,
zoning amendment and related permits that would authorize the construction of
approximately two hundred and thirty -five thousand (235,000) square feet of additional
office use on the Property.
1.4 Hearings. The Newport Beach Planning Commission and the Newport
Beach City Council have conducted all required public hearings on the Project and
certified an Environmental Impact Report for the Project that is in full compliance with
CEQA and the CEQA Guidelines. All of these hearings were duly noticed in accordance
with applicable provisions of State law and the Newport Beach Municipal Code.
1.5 General Findings. The Planning Commission and City Council have
determined that the Project and all Project Approvals are consistent with all elements of
the Newport Beach General Plan, the Newport Beach Municipal Code, CEQA and the
CEQA Guidelines. The Project and all Project Approvals are also consistent with all
other relevant plans, policies, ordinances, resolutions and regulations of the CITY.
1.6 Affordable Housing. The CITY and OWNER have determined that the
Project does not constitute a residential development subject to the terms and
conditions of the CITY's Housing Element. Accordingly, no present or subsequently
enacted affordable housing requirement or housing in lieu fee shall be required of
OWNER.
1.7 Purpose of Agreement. The purposes of this Agreement are as follows:
(a) To provide for the orderly completion of development of the
Property consistent with the Project Approvals, Project Conditions
and this Agreement.
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(b) To provide the CITY and OWNER with certainty that the Project will
be developed and maintained as contemplated by the Project
Approvals, Project Conditions and the Development Plan.
(c) To provide assurance to OWNER that OWNER may proceed with
the Project, subject to compliance with Project Conditions, in
accordance with the laws, policies, rules, ordinances, resolutions
and regulations of the CITY in effect as of the Approval Date.
(d) To strengthen the public planning process, encourage private
participation in comprehensive planning, reduce the economic cost
of development, mitigate the impacts of development, and provide
public benefits in excess of those normally secured through the
planning process.
1.8 Authorization. This Agreement is authorized by, and is consistent with, the
provisions of §§ 65864 et seq. of the Government Code of the State of California, and
Chapter 15.45 of the Newport Beach Municipal Code.
1.9 Police Power. The City Council has determined that this Agreement:
(a) Is in the best interests of the health, safety and general welfare of
the CITY, its residents and the public;
(b) Was entered into pursuant to, and is a valid exercise of, the CITY's
police power; and
(c) Has been approved in accordance with the provisions of State and
local law that establish procedures for the approval of development
agreements.
1.10 City Ordinance. On , 2000, after giving appropriate notice and
holding all appropriate public hearings, the City Council conducted the first reading of
Ordinance No. authorizing the CITY to enter into this Agreement. The City
Council approved the Adopting Ordinance on , 2000, after giving appropriate
notice and holding all appropriate public hearings. The Adopting Ordinance shall be
considered effective as specified in Section 8.1.
1.11 CEQA Review. The City Council has independently reviewed, approved
and certified the EIR for the Project. In so doing, the City Council determined, among
other things, that the EIR was prepared in full compliance with CEQA and the CEQA
Guidelines. The City Council also adopted all feasible mitigation measures, made
appropriate findings and adopted a statement of overriding considerations with respect
to any significant effect that could not be mitigated to a level of insignificance. The City
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Council also adopted a Mitigation Monitoring Program for the Project as required by
CEQA and the CEQA Guidelines.
2. DEFINITIONS.
2.1. "Adopting Ordinances" refers to:
(a) Ordinance No. 2000- adopted by the City Council on
2000, approving Zoning Amendment No. 905 and
this Agreement;
(b) Resolution No. 2000- adopted by the City Council on
2000, approving GPA 97 -3(B);
(c) Resolution No. 2000- adopted by the City Council on
2000, approving Traffic study No. 119 and making
findings pursuant to Chapter 15.40 of the Code;
(d) Resolution No. 2000- adopted by the City Council on
2000 certifying the EIR as fully compliant with CEQA
and the CEQA Guidelines, adopting all feasible mitigation
measures, and containing the statement of overriding
considerations.
2.2. "Agreement" refers to this Development Agreement.
2.3. "Annual Review" refers to the review of OWNER's and CITY's good faith
compliance with this Agreement, as set forth in Section 7.
2.4. "Approval Date" means 2000, the date on which the City
Council approved the Adopting Ordinances.
2.5. "Assign" means all forms of use of the verb "assign" and the nouns
"assignment" and "Assignee" shall include all contexts of hypothecation, sales,
conveyances, transfers, leases, and assignments.
2.6. "CEQA" and the "CEQA Guidelines" refers to the California
Environmental Quality Act and the CEQA Guidelines promulgated by the Secretary of
Resources of the State of California.
2.7. "CITY" refers to the City of Newport Beach, California.
2.8. "Cure Period" refers to the period of time during which a Default may be
cured pursuant to Article 10.
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2.9. "City Council' refers to the City Council of the CITY. 0
2.10. "Day" or "days" refers to a calendar day, unless expressly stated to be a
business day.
2.11. "Default' refers to any material default, breach, or violation of the
provisions of this Agreement. A "CITY Default" refers to a Default by the CITY, while an
"OWNER Default" refers to a Default by OWNER.
2.12. "Develop" means all forms of use of the verb "develop" and the noun
"Development", whether or not capitalized, means the improvement of the Property for
the purposes 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 buildings and structures; and the installation of landscaping and parking
facilities and improvements. "Develop" or "Development' also includes the
maintenance, repair, alteration, reconstruction or redevelopment of any building,
structure, improvement, landscaping or facility after the initial construction and
completion so long as consistent with the Project Approvals, the Development Plan and
this Agreement. "Develop" or "Development' also includes the use of the Property in a
manner consistent with the permitted general, primary, and secondary uses as set forth
in the PC Text and the Development Plan.
2.13. "Development Plan" means and constitutes the plan for the development
of the Property, as embodied and stated in the Project Approvals, Project Conditions and
this Agreement
2.14. "Effective Date" shall be the date this Agreement becomes effective as
specified in Section 8.1.
2.15. "EIR" refers to Environmental Impact Report 158 (State Clearinghouse No.
99091120) prepared for the Project and certified as fully compliant with CEQA and the
CEQA Guidelines by the CITY Council on the Approval Date.
2.16. "Estoppel Certificate" refers to the document certifying the status of this
Agreement required by Section 7.4.
2.17. "Exhibit' refers to an Exhibit to this Agreement. All Exhibits are
incorporated as a substantive part of this Agreement. The Exhibits to this Agreement are
as follows:
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• Exhibit : Description:
A Legal Description of the Property
B Map depicting the Property
C Project Approvals comprising the Development Plan
D List of Project Conditions
2.18. "Existing General Regulations" means those General Regulations
approved by the CITY on or before the Approval Date (irrespective of their Effective Date)
and not rescinded or superseded by CITY action taken on or before the Approval Date.
2.19. "Future General Regulations" means those General Regulations adopted
or approved by the CITY in any way, after the Approval Date.
2.20. "General Plan" refers to the CITY's General Plan in effect on the Approval
Date, plus all amendments to the General Plan adopted by the CITY on or before the
Approval Date as part of the Project Approvals, Project Conditions or the Development
Plan.
2.21. "General Plan Amendment" or "GPA" means General Plan Amendment
97 -3(B) amending the General Plan of the CITY as approved by the City Council on
, 2000.
. 2.22. "General Regulations" means all laws, ordinances, resolutions, codes,
rules, regulations and official policies of CITY governing the development and permitted
uses of land, including, without limitation, the permitted use of land, the density or
intensity of use, subdivision requirements, the maximum height and size of proposed
buildings, the provisions for reservation or dedication of land for public purposes, and
the design, improvement and construction standards and specifications applicable to
the development of the Property and provisions relating to applicable fees, charges,
assessments and levies. The foregoing includes the Traffic Phasing Ordinance (TPO),
the Fair Share Traffic Contribution Fee Ordinance (Fair Share Ordinance) and water
and sewer connection fee ordinances. General Regulations do not include any CITY
ordinance, resolution, code, rule, regulation or official policy identified in or governing
the following ( "Governmental Exceptions "):
(a) The provisions of Titles 1, 3, 5, 6, 7, 9, 10, 11, 12, 13, 14, 15
(except Chapters 15.38 and 15.40) and of the Newport Beach
Municipal Code;
(b) Property taxes and assessments;
(c) The control and abatement of Nuisances (subject to the provisions
of Section 3.4);
• (d) The exercise of the power of eminent domain;
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(e) The provision of, or charges for, water, sewer, refuse, police, fire •
and other municipal services that are generally applicable to all
owners or lessees of commercial property in the CITY; and
(f) The manner in which property is used that are related to the
amount and time of noise from permitted activities, the use of
alcohol, and the nature and timing of special events.
2.23. "Governmental Reservations" refers to those actions that CITY may
take that may affect the Project or the operation of the Project, as follows:
(a) Enforcement of the specific provisions, limitations and restrictions
contained in the Project, Project Approvals, Development Plan and
Project Conditions;
(b) Enforcement of the provisions and conditions of this Agreement;
(c) Enforcement of, or pursuant to, Governmental Exceptions or
Governmental Reservations; and
(d) Enforcement of Existing General Regulations
2.24. "Include" and all contexts and forms of the words "includes" and
"including" shall be interpreted to also state "but not limited to."
2.25. "OWNER" refers to Koll Center Newport Number A, a California general
partnership.
2.26. "Mortgagee" refers to the holder of a beneficial interest under any
mortgage, deed of trust, sale - leaseback agreement, or other transaction under which all
or a portion of OWNER's interest in the Property is used as security.
2.27. "Notice" refers to any written notice or demand between the Parties
required or permitted by this Agreement.
2.28. "Parties" refers to the CITY and OWNER and a "Party" refers to the CITY
or OWNER.
2.29. "PC Text" refers to the "Koll Center Newport Planned Community
Development Plan" as amended by the City Council on the Approval date and any
subsequent modification of the PC Text with respect to the Property that are approved
by the City Council and to which OWNER consents. Except for the modifications
expressly permitted by the terms of this Agreement, OWNER shall be under no
obligation to consent to modifications of the PC Text •
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0 2.30. "Planning Commission" refers to the Planning Commission of the CITY.
2.31. "Project" refers to the existing and proposed development of the Property
pursuant to, and consistent with the Project Approvals, consistent with and subject to
Project Conditions, and as described in the Development Plan. The Project includes
those improvements existing on the Property as of the Approval Date.
2.32. "Project Approvals" refers to all approvals, amendments, permits,
licenses, consents, rights and privileges, and other actions required or authorized to be
approved, issued or taken by CITY in connection with development of the Property,
including but not limited to the following discretionary actions:
(a) General Plan Amendment No. 97 -3(B);
(b) Zoning Code Amendment No. 898 (Koll Center Newport Planned
Community Development Plan);
(c) Traffic Study No. 119; and
(d) Environmental Impact Report No. 158 (State Clearinghouse No.
99091120).
• Project Approvals also means any grants of easements, vacations, subdivisions,
resubdivisions, lot line adjustments or other actions necessary to the implementation of
the Project. Project Approvals also include any and all discretionary or ministerial
permits related to construction of the Project including grading permits, building permits,
and occupancy permits.
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2.33. "Project Conditions" means all conditions to OWNER's right to proceed
with Development pursuant to the Project Approvals, including the provisions of this
Agreement, the PC Text, the mitigation measures identified in the EIR and adopted by
the City Council, conditions to approval of the Traffic Study, conditions to Project
Approvals, Existing General Regulations and Governmental Reservations. The Project
Conditions are generally described in Exhibit D.
2.34. "Property" refers to the real property described on Exhibit "A" and
depicted on Exhibit "B ".
2.35. "Subsequent Development Permits" means all Project Approvals
granted or issued by the CITY subsequent to the Approval Date in connection with
development of the Property.
2.36. "Vested Entitlement" or "Entitlement" refers to the development rights •
granted OWNER pursuant to this Agreement and the Project Approvals that are subject
to Project Conditions.
3. DEVELOPMENT OF THE PROPERTY
3.1 Development Program. This Agreement vests OWNER's right to
proceed with the development described in the Project Approvals and Development
Plan. OWNER acknowledges that its right to proceed with the Vested Entitlement is
subject to the Project Conditions. OWNER acknowledges that City grants no assurance
that OWNER will receive necessary permits or approvals from any other public agency
with jurisdiction over the Project or that Project Approvals will not be subject to and
affected by legal or other challenges or procedures initiated by third parties.
(a) Permitted Uses. The Property shall be used and developed only in
the manner provided in the Project Approvals and the Development
Plan. CITY acknowledges that, from time to time, OWNER may
seek and obtain, in accordance with applicable provisions of State
and local law, minor amendments to the Development Plan and the
Project Approvals. The Planning Director of the CITY ( "Planning
Director") shall determine, subject to appeal by OWNER to the •
Planning Commission, whether a proposed amendment is a "minor
amendment" for purposes of this Agreement. A minor amendment
is one that does not increase vehicular trips or other environmental
impacts associated with Project Approvals or the Development
Plan.
(b) Permitted Density of Development. OWNER shall have the
vested right to develop the Property and receive the CITY's
approval of all Project Approvals consistent with the permitted
density and level of intensity authorized by the Project Approvals
and as described in the Development Plan. The CITY shall not
impose any condition on any Project Approval that reduces the
permitted density and level of intensity allowed in the Development
Plan and discretionary Project Approvals. CITY acknowledges that
the boundaries of the parcels shown on the Development Plan and
the Project Approvals are approximate and are subject to minor
variation prior to recordation of final map(s) for the Project,
provided OWNER complies with the applicable procedures for
subdivision maps. CITY may impose standard conditions of
approval on any subdivision or resubdivision requested by OWNER
so long as the condition(s) do not reduce the permitted density or
intensity, or substantially increase the cost of the development, •
allowed in the Project Approvals and described in the Development
Plan.
(c) Maximum Height and Size of Structures. OWNER shall have the
vested right to develop the Property with the maximum height and
size of structures as set forth in the Development Plan and the
Project Approvals.
3.2 Compliance with Project Conditions. OWNER acknowledges that City
Council approval of the Project Approvals, the Development Plan and this Agreement is
subject to compliance with the Project Conditions. The Project Conditions are, among
other things, designed to minimize or eliminate any adverse impacts of the Project and
protect and enhance the environment. In certain instances, the Project Conditions
exceed those that might otherwise be appropriate under "nexus" and "rough
proportionality tests recently articulated by the courts. By entering into this Agreement,
OWNER agrees to be bound by, and waives any protest of, any Project Conditions. Any
Project Conditions imposed by the CITY after the Effective Date shall be consistent with
the Project Approvals, Development Plan and this Agreement.
3.3 Compliance with General Regulations. OWNER shall comply with the
Existing General Regulations. Except as otherwise specified in this Agreement,
OWNER shall not be obligated to comply with any Future General Regulations that are
in conflict with the Development Plan or this Agreement. Any Future General
Regulation(s) that are inconsistent with this Agreement and /or the Development Plan
and which do not fall within the definition of Governmental Reservations or
Governmental Exceptions shall not be applicable to the development or use of the
Property. With respect to Existing General Regulations that require the payment of
fees, costs, and expenses, the applicable fee, cost, or expense shall be that in effect
on the Approval Date subject to any automatic increases or decreases mandated by
the text of the Existing General Regulation as of the Approval Date. OWNER shall,
however, comply with: (a) any Future General Regulation that does not impair or affect
its ability to develop the Property in accordance with the Development Plan or increase
OWNER's cost or cause delays in timing. OWNER shall also comply with all provisions
of the Uniform Codes for building, fire, plumbing, mechanical and electrical, whether
adopted before or after the Approval Date by the CITY, which are in effect at the time
applications for specific Project Approvals are submitted.
3.4 Public Health and Safety /Uniform Codes. This Agreement shall not
prevent the CITY from adopting, and applying to the Project, Future General Regulations,
including Uniform Codes (as referred to above), that are based on recommendations of a
multi -state professional organization relating to the specifications for the constructions of
improvements ( "Building Codes ") and become applicable throughout CITY. This
Agreement shall not prevent the CITY from adopting, and applying to the Project,
conditions inconsistent with the Development Plan or Project Approvals, when the
• conditions are adopted by the City Council after a noticed public hearing and pursuant to
a determination by the City Council that the conditions are necessary to abate a public
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nuisance (Nuisance). In no event shall the CITY impose any condition pursuant to a
determination of Nuisance unless the OWNER has been given notice of, and the right to
present evidence at, a public hearing. Any determination of Nuisance, and the rational
relationship between the Nuisance and the conditions imposed, must be supported by
substantial evidence in the record of the hearing.
4. BENEFITS TO OWNER.
4.1 Right to Develop. During the term of this Agreement, OWNER shall have
a vested right to develop, and receive building and occupancy permits for construction
on the Property to the full extent permitted by the Project Approvals and the
Development Plan subject to the Project Conditions. CITY shall only take action with
respect to the Property that complies and is consistent with the Project Approvals and
the Development Plan unless OWNER gives its written consent to the action or CITY is
permitted to take the action pursuant to this Agreement. OWNER may refuse to grant
consent in OWNER's sole and absolute discretion. CITY shall not impose or increase
any condition or requirement (whether in the form of a fee, tax, requirement for
dedication or reservation of and, or any other type of exaction) on the Project, except as
expressly permitted by this Agreement, Existing General Regulations, Governmental
Reservations or Governmental Exceptions. However, CITY may impose or increase a
condition or requirement when such action is required (as opposed to permitted) by
State or federal law and then only to the minimum extent and duration necessary to .
comply with State or federal law. Except as otherwise provided by this Agreement, the
ordinances, plans, resolutions, and policies governing the permitted use and
development of the Property shall be those described in the Project Approvals and the
Development Plan.
4.2 Reservations or Dedications of Land. No dedication or reservation of
any portion of the Property shall be required of OWNER in conjunction with the
application or issuance of any Project Approval except as may be provided in the
Project Approvals, Project Conditions, Development Plan or this Agreement.
4.3 No Additional Traffic Related Fees or Conditions. OWNER's
satisfaction of the provisions of Article 5 shall be deemed full compliance with all
Existing General Regulations, Future General Regulations and CEQA relative to traffic
impacts or traffic fees. Except as provided in Article 5, CITY shall not impose or
increase the amount of any traffic - related fee, charge, dedication, or improvement
relative to, or as a condition to, development of the Project.
4.4 Storm Drain. The CITY shall provide storm drain capacity to the exterior
boundaries of the Property to the extent, and subject to the same conditions, that
capacity is provided to similarly situated commercial property in the CITY. OWNER
agrees to accept, during the term of this Agreement, all storm drain inflow from facilities
in place as of the Effective Date. 0
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4.5 Park Fees. OWNER and CITY acknowledge that the Project may
generate some incidental demand for, and usage of, park and open space land within
the CITY but that the Project is exempt from the Park Dedication Ordinance (Chapter
19.50 of the Newport Beach Municipal Code) and any Existing General Regulation
relating to the dedication of land for park or open space purposes or the payment of
park or open space fees.
4.6 Future Impact Fees, Conditions, and Exactions. So long as OWNER is
not in default under this Agreement, CITY will not impose, or increase the amount of,
any impact fee, condition, mitigation measure, or exaction other than as expressly
required by the Project Approvals, Project Conditions, Existing General Regulations, the
Development Plan, or this Agreement. CITY shall not, without the written consent of
OWNER, form, or cause the formation of, any new governmental entity for the purpose
of imposing fees, conditions or exactions the CITY could not directly impose pursuant to
this Section. CITY may form or cause the formation of an assessment district (or similar
vehicle) comprised of the Property and other property in the area for the purpose of
funding public improvements that provide a special benefit to the Property. However,
CITY may not include the Property in any assessment district formed to fund
construction of public improvements that CITY is prohibited from imposing on OWNER
because of this Agreement.
4.7 Time for Construction and Completion of Project. OWNER shall have
the right to develop the Project in the manner and at the time that OWNER deems
appropriate in the exercise of its business judgment. The Parties acknowledge that
OWNER cannot predict the timing of the development of the Project because of
numerous factors not within the control of OWNER, such as market demand, economic
conditions, interest rates and competition. Subject to compliance with the provisions of
this Agreement and Project Conditions, OWNER shall, at any time during the term of
this Agreement, be entitled to apply for, and receive, Project Approvals consistent with
the Development Plan.
4.8 Development Standards. Because the Development Plan has been
prepared to meet the unique design parameters of this Project, the City Council has
determined that rigid consistency with the Existing General Regulations and Future
General Regulations is neither necessary nor appropriate. The terms and provisions of
the Project Approvals, Development Plan or this Agreement shall prevail in the event of
any conflict with Existing General Regulations or Future General Regulations.
4.9 Tentative Maps.
(a) Improvement Security. As a condition of approving a final
subdivision map or any future resubdivision for all or a portion of
the Property, the CITY may require the furnishing of appropriate
and reasonable improvement agreements and security pursuant to
the Municipal Code and the Subdivision Map Act. Nothing in this
Agreement shall be construed as altering or relieving OWNER of
any obligation imposed pursuant to the Municipal Code or the
Subdivision Map Act. The improvement requirements, exactions or
other conditions of approval of a subdivision map, parcel map or lot
line adjustment shall be consistent with this Agreement but CITY
may impose standard conditions of approval generally applicable to
similar projects subject to the provisions Section 3.1(b).
(b) Expiration. Any current or future tentative maps for resubdivision
of the Property shall expire concurrently with the termination of this
Agreement or after the maximum period for the expiration of
tentative maps authorized by Government Code § 66452.6,
whichever is later. Should the time periods authorized by
Government Code § 66452.6 be lengthened after the execution of
this Agreement, OWNER shall be entitled to further extensions of
any tentative subdivision map applicable to the Property, to the
maximum extent authorized by law.
(c) Resubdivisions. The Parties acknowledge that resubdivisions, lot
line adjustments, or similar modifications may be necessary to
develop the Project and are contemplated by this Agreement.
These modifications or adjustments shall be approved provided
they are in substantial conformance with the Development Plan
and the Project Approvals.
4.10 Processing and Issuance of Permits.
(a) Processing of Permits. As a material term of this Agreement
benefiting OWNER, the CITY shall promptly accept for
processing /review, and expeditiously approve, permit applications
for the development and use of the Property that are in substantial
conformance with the Project Approvals, Development Plan,
Existing General Regulations, and this Agreement.
(b) Issuance of Ministerial Project Approvals. CITY shall issue to
OWNER all necessary use, building, occupancy, and other permits
and approvals upon request, provided that applications are
submitted in accordance with the Existing General Regulations and
are in substantial conformance with the Project Approvals,
Development Plan and this Agreement.
(c) Vesting of Project Approvals. Any permit, license or approval
issued pursuant to this Agreement shall be vested and deemed a
Project Approval when granted.
4.11 Future Approvals. The future approval or issuance of any Project
Approval that is consistent with the Development Plan, including any permit, license or
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authorization to proceed, subdivisions, resubdivisions, lot line adjustments, vacations
and similar actions shall not require an amendment of this Agreement
5. PUBLIC IMPROVEMENTS
5.1 Regional Transportation Facilities Fees. OWNER acknowledges that
CITY is bound by provisions of ordinances, agreements, rules and regulations related to
the financing, construction and operation of major transportation improvements that
benefit large areas of Orange County including the Property. OWNER shall comply with
the provisions of all such ordinances, agreements, rules and regulations, including the
payment of fees required by the San Joaquin Hills Transportation Corridor Joint Powers
Agreement and/or the Transportation Corridor Agency (collectively, the "TCA ").
OWNER acknowledges that it is required to comply with Chapter 15.42 of the Newport
Beach Municipal Code. OWNER shall have the right to appeal or contest the imposition
and /or amount of fees through any procedure adopted or used by the TCA for that
purpose. OWNER shall also have the right to commence litigation relative to the
amount, method of calculating or timing of any fees or the procedure utilized by the
TCA or other agency to resolve disputes relative to fees. OWNER shall hold CITY
harmless with respect to any loss, damage claim or liability arising out of any litigation
commenced by OWNER that is related to this Section. OWNER agrees that satisfaction
of the provisions of this Section is a condition to any discretionary or ministerial Project
Approval. CITY shall not be required to issue any discretionary or ministerial Project
Approval until OWNER provides proof that all fees required to be paid to the TCA,
whether pursuant to ordinance, settlement or judgment, have been paid.
5.2 Fair Share Traffic Fees. OWNER shall pay two hundred and thirty -five
thousand, five hundred and seventy dollars ($235,570) in fees required pursuant to
Chapter 15.38 of the Code (Project Fair Share Fees). The Project Fair Share Fees are
based on the one thousand seven hundred and seventy (1770) additional average daily
trips generated by the Project multiplied by the current per trip fee of one hundred thirty
three dollars and nine cents ($133.09). The Project Fair Share Fees shall be paid at the
time specified in Chapter 15.38 of the Code.
5.3 TPO Improvements. OWNER shall contribute funds to be used by CITY
for the construction of the circulation system improvements identified in Traffic Study
119 (TPO Improvements). OWNER's contributions to the funding of the TPO
Improvements equal or exceed the requirements of the TPO and OWNER's
contributions to the funding of the TPO Improvements is in addition to all other fees,
charges or contributions required by this Agreement and /or existing General
Regulations. OWNER's contribution to the TPO Improvements shall be the sum of
seventy thousand dollars ($70,000) to fund construction of a second northbound
(MacArthur) left turn lane, the construction of a second southbound (MacArthur) left turn
lane and the construction of a second northbound (MacArthur) right turn lane at the
MacArthur /Jamboree intersection (MacArthur Project). City has prepared preliminary
plans, specifications and cost estimates for the MacArthur Project. The MacArthur
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Project fully mitigates the impacts of Project trips at the MacArthur /Jamboree
intersection as required by the TPO. The MacArthur Project is anticipated to cost one
million seven hundred and sixty thousand dollars ($1,760,000). OWNER's contribution
to the MacArthur Project represents four percent (4 %) of the cost of the TPO
improvements and has been calculated as specified in the TPO. CITY agrees to
provide any supplemental funds necessary to ensure that construction of the MacArthur
Project is complete no later than one year after occupancy of any development
authorized by the Project Approvals.
5.4 Long Range Traffic Improvements.
(a) Introduction. The EIR evaluated the "long term" impacts of the
Project on major intersections in Newport Beach and Irvine (Long -range
Analysis). The Long -range Analysis assumed construction of all
entitlement and all circulation system improvements authorized in the
Land Use and Circulation Elements of the Newport Beach General Plan
(including the TPO Improvements). The Long -range Analysis also
assumed the construction of entitlement and circulation system
improvements contemplated for the year 2020 in the Land Use and
Circulation Elements of the Irvine General Plan. The Long- range Analysis
concluded that the Project would, depending on the construction of the J5
Ramp, have significant long -range adverse traffic impacts on four (4) or
five (5) major intersections. The potential cost of mitigating the long -range
impacts of the Project on intersections in the airport area could be
significant. For example, mitigation of the impact of Project trips on
service levels may require the construction of a grade separation and
access ramps at the MacArthur /Jamboree intersection. The CITY has
prepared conceptual plans for a grade separation at the
Jamboree /MacArthur intersection and very preliminary cost estimates
indicate that improvement costs, exclusive of right -of -way, could be in the
range of fifteen million dollars ($15,000,000) to twenty million dollars
($20,000,000). Moreover, the approval of the Project will result in an
increase in average daily trips in the vicinity of the Project that may require
other property owners to make improvements pursuant to the TPO that
would not be necessary but for the Project.
(b) OWNER Commitments. OWNER agrees to do the following:
(i) Pay the CITY, within sixty (60) days after the Effective Date,
forty -five cents ($.45) per square foot of additional entitlement
granted pursuant to the Project Approvals to be used by the CITY
solely for the purpose of funding a Planning Study for the Airport
Area.
(ii) Pay the CITY the sum of eight dollars ($8.00) per square
foot of additional entitlement authorized by the Project Approvals
14 ' r.�
• (Mitigation Fee). In the event a building permit is not issued within
twelve (12) months after the Effective Date, the amount of the
Mitigation Fee shall be increased by fifty cents ($.50) every twelve
months after the Effective Date.
(c) Payment. OWNER shall pay the Mitigation Fee prior to the
issuance of any building permit for the Project.
(d) Compliance. OWNER's compliance with the provisions of this
Section shall relieve OWNER of any obligation to participate in any
circulation system funding program developed and implemented by the
CITY including a specific area plan or major thoroughfare program for the
airport area. OWNER's compliance with the provisions of this Article shall
constitute full and complete satisfaction of any obligation to make or fund,
in whole or in part, any CITY circulation system improvement as a
condition to development of the Project.
5.5 Fire Station Fee. The EIR concludes that fire suppression service to
the Project will not meet CITY response time standards in the event of the closure of
OCFA Station 27. CITY has conducted studies of fire service needs in the airport area
and options for providing fire suppression and paramedic services consistent with CITY
standards. The options for providing fire suppression and paramedic services include
• the construction, equipping and staffing of a new fire station in the airport area or
immediately south of Bristol Street in Santa Ana Heights (New Fire Station). The current
estimated cost of constructing and equipping a New Fire Station is two million dollars
($2,000,000). OWNER shall pay CITY a fire suppression impact fee (FSIF) of sixty
thousand dollars ($60,000) to be used solely to fund the acquisition of a fire station site,
the construction of the New Fire Station, and /or the equipping /staffing of the station.
OWNER shall pay the FSIF within ten (10) days after obtaining any permit for grading
or construction on the Property pursuant to this Agreement or any Project Approval.
Payment of the FSIF shall fully discharge OWNER from any obligation to pay any fee
pursuant to fire suppression facility impact fee program (Program) for area served by
the New Fire Station.
6. SPECIAL PROVISIONS
6.1 Sales Tax Principles. OWNER has the right, pursuant to the Bradley
Bums Uniform Local Sales and Use Tax Law (Tax Law) to make a direct sales or use tax
(Tax) payment through a "direct pay permit" for certain purchases, leases and sales
(Eligible Transactions). CITY receives substantially more Tax from OWNER if OWNER
directly pays the Tax on all Eligible Transactions.
6.2 Tax Program. OWNER shall, within thirty (30) days after the Effective Date,
prepare, and submit to the Revenue Manager of CITY for approval, a Sales and Use Tax
Program (Program) that, at a minimum, has the following components:
(a) OWNER's commitment to, during the term of this Agreement, .
maintain a direct pay permit or similar authorization to directly pay Tax on all
Eligible Transactions;
(b) Procedures that Owner will implement to maximize the amount of
Tax paid to the City with respect to construction of the Project;
(c) Procedures pursuant to which OWNER will provide City with
information identifying all buyers and sellers with whom OWNER and/or
OWNER's contractors do business.
The Program shall also contain other information relevant to OWNER's compliance with
the terms and conditions of this Agreement pertaining to the direct payment of Tax.
OWNER shall, within thirty (30) days after the Effective Date, submit the Program to the
Revenue Manager of CITY for approval. OWNER shall modify the Program in
accordance with any and all reasonable recommendations of the Revenue Manager that
are consistent with the intent of this Section. OWNER shall, during the term of this
Agreement, fully implement the Program approved by the Revenue Manager.
7. ANNUAL REVIEW.
7.1 CITY and OWNER Responsibilities. Each Party shall review the other •
Party's good faith substantial compliance with this Agreement once each year (the
"Annual Review "). As part of the Annual Review, OWNER shall submit to CITY an
annual review statement describing its actions in compliance with this Agreement and
the Development Plan.
7.2 Procedure. In connection with the Annual Review, each Party shall have
a reasonable opportunity to advise the other of alleged or potential breaches of this
Agreement or the Development Plan, to explain the basis for that Party's position, and
to receive from the other Party a statement of its position. A Party may issue a written
"Notice of Non - Compliance" specifying the factual basis for the notice if, on the basis of
the Annual Review, that Party concludes that the other Party has not complied in good
faith with the terms of this Agreement or the Development Plan. The Party receiving a
Notice of Non - Compliance shall have thirty (30) days to respond in writing. If a Notice of
Non - Compliance is contested, the Parties shall have up to sixty (60) days to arrive at a
mutually acceptable resolution of the matter(s) occasioning the Notice. In the event that
the Parties are not able to arrive at a mutually acceptable resolution of the matter(s) by
the end of the sixty (60) day period, the Party alleging the non - compliance may pursue
the remedies provided in this Agreement.
7.3 Mitigation Monitoring. The Annual Review shall include an analysis of
compliance with the various conditions and mitigation measures related to the Project.
16 1 J
•7.4 Estoppel Certificate. Either Party may at any time deliver written Notice
to the other Party requesting an estoppel certificate (the "Estoppel Certificate ") stating:
(a) The Agreement is in full force and effect and is a binding obligation
of the Parties.
(b) The Agreement has not been amended or modified either orally or
in writing or, if amended, identifying the amendments.
(c) To the best of the signing Party's knowledge, no Default in the
performance of the requesting Party's obligations under the Agreement
exists or, if a Default does exist, the nature of the Default.
A Party receiving a request for an Estoppel Certificate shall provide a signed certificate
to the requesting Party within thirty (30) days after receipt of the request. The City
Manager may sign an Estoppel Certificate on behalf of the CITY.
7.5 Failure to Conduct Annual Review. The failure to conduct an Annual
Review shall not constitute a Default of either Party or be asserted as a Default by either
Party.
• 8. GENERAL PROVISIONS
8.1 Effective Date. This Agreement shall bind the Parties as of the Approval
Date subject to the Adopting Ordinance becoming effective. The Adopting Ordinance
shall be deemed effective when ordinances are generally effective pursuant to
provisions of the Newport Beach City Charter.
8.2 Term of Agreement. The term of this Agreement (the "Term ") shall begin
on the Effective Date and continue for a term of twenty -five (25) years unless otherwise
terminated or modified pursuant to this Agreement, or extended pursuant to the
provisions and conditions of Section 11.
8.3 Assignment. OWNER has the absolute right to assign its rights and /or
delegate its obligations under this Agreement and the Development Plan as part of an
assignment of all or a portion of the Property. Any assignment shall be subject to the
provisions of this Agreement. As long as OWNER owns /leases any part of the Property,
OWNER may (at its election) assign the benefits of this Agreement without delegating
the obligations for the portion of the Property assigned. If that occurs, however, the
benefits assigned shall remain subject to the performance by OWNER of the
corresponding obligations. Upon any assignment of all or a portion of the Property,
OWNER shall be released from all obligations under this Agreement that relate to the
portion of the Property being transferred as of the date the assignment is effective.
• Where an assignment includes the delegation of the corresponding obligations, those
obligations become solely the obligations of the Assignee. If an Assignee is in Default,
17 )`,A
then as to OWNER or any Assignees not in Default, the Default shall not: (i) constitute
their Default; (ii) give grounds for termination of their rights under this Agreement; or (iii)
be a basis for an enforcement action against them.
8.4 Amendment of Agreement.
(a) Consent. Subject to the provisions of Subsection 8.4(b), this
Agreement may be amended from time to time by the mutual consent of
the Parties, or their successors in interest, but only in the manner
provided by the Government Code, the Newport Beach Municipal Code
and this Agreement. After any amendment, the term "Agreement" shall
refer to the amended Agreement.
(b) Amendments. The Parties acknowledge that OWNER may
determine that amendments to the Development Plan and /or Project
Approvals are appropriate and desirable. In such event, OWNER may
apply in writing for an amendment to prior Project Approvals or the
Development Plan. CITY shall process and act on the application. CITY
shall have no obligation to grant any application that amends the
permitted land uses, the overall intensity or density of the Project, or
otherwise is an amendment of the Development Plan that could have one
or more significant adverse environmental impacts. Any approved
amendment shall be incorporated into this Agreement by reference and •
may be further amended from time to time as provided in this Section.
8.5 Enforcement. This Agreement is enforceable by each of the Parties and
their respective successors and assigns, provided, however, in the event of a Default the
remedies shall be limited to those specified in Section 10.7.
8.6 Termination. This Agreement shall be deemed terminated and of no
further effect upon the occurrence of any of the following events:
(a) Expiration of the term in accordance with Section 8.2;
(b) Entry, after all appeals have been exhausted, of a final judgment or
issuance of a final order directing the CITY to set aside, withdraw, or
abrogate the CITY's approval of this Agreement or any material part of the
Project or Project Approvals; or
(c) The effective date of a Party's election to terminate the Agreement
as provided in Section 10.3 of this Agreement.
8.7 Right to Terminate Upon Specified Events. Notwithstanding any other
provision of this Agreement, OWNER retains the right to terminate this Agreement upon
thirty (30) days written notice to CITY in the event that OWNER reasonably determines •
that continued development of the Project consistent with the Development Plan has
18 )�-Ij
• become economically infeasible due to changed market conditions, increased
development costs, burdens imposed by the CITY or other governmental entity as
conditions to future discretionary approvals of the Project consistent with this
Agreement, the CITY's exercise of the Governmental Reservations in a way deemed by
OWNER to be inconsistent with the Development Plan, or similar factors.
9. CONFLICTS OF LAW.
9.1 Conflict with State and Federal Laws and Regulations. Where State or
federal law or regulation prevents compliance with one or more provisions of this
Agreement, those provisions shall be modified to the minimum extent necessary to
comply with the State or federal laws or regulations, and the modified Agreement shall
remain in effect, subject to the following:
(a) The CITY shall not request modification of this Agreement pursuant
to this provision unless and until the City Council makes a finding, based
on substantial evidence in the record of a public hearing where OWNER
has notice and an opportunity to present evidence, that the modification is
required (as opposed to permitted) by State and federal law or regulation;
(b) The modifications must be limited to those required (as opposed to
permitted) by the State or federal law or regulation;
(c) The modified Agreement must be consistent with the State or
federal law or regulation requiring the modification;
(d) The intended material benefits of this Agreement must still be
received by each of the Parties after modification; and
(e) The modification and any applicable local, State, or federal law or
regulation does not render the modified Agreement impractical to enforce;
9.2 Controlling Law. This Agreement shall be governed by the laws of the
State of California.
10. DEFAULT, REMEDIES AND TERMINATION.
10.1 General Provisions. In the event of a Default the Party alleging a Default
shall give the other Party a written Notice of Default. The Notice of Default shall specify
the nature of the alleged Default, and a reasonable manner and sufficient period of time
(not less than thirty (30) days) 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 the Agreement or institution of legal proceedings. If the
alleged Default is cured within the Cure Period then a Default shall be deemed not to
19 l ��
exist. Neither Party shall initiate nor pursue legal proceedings if the Default in question .
is not susceptible of cure within the applicable Cure Period, and the Defaulting Party
commences its cure within the Cure Period and diligently pursues the cure to
completion.
10.2 Option to Institute Legal Proceedings or to Terminate. The noticing
Party must give the Defaulting Party a Notice of intent to terminate this Agreement if the
noticing Party intends to terminate the Agreement and the alleged Default is not cured
within the Cure Period. The City Council shall, no later than forty -five (45) days after a
Notice of intent is served on either Party, hold a public hearing in the manner specified
in the Government Code and /or the Municipal Code to consider and review the alleged
Default.
10.3 Notice of Termination. After the public hearing described in Section
10.2, the Party alleging the Default, at its option, may give written Notice of termination
of the Agreement to the other Party. The Agreement shall be terminated immediately
upon giving the Notice. A termination shall be valid only if good cause exists and a
preponderance of the evidence presented to the City Council at the public hearing
establishes the continued existence of a Default after the Cure Period. The findings of
the City Council as to the existence of a Default shall have no weight in any legal
proceeding brought to determine the existence of a Default. The validity of any
termination may be challenged pursuant to Section 12.17, in which case the court shall
render an independent judgment as to the existence of a Default and good cause for
termination. Termination may result only from a material Default of a material provision
of this Agreement.
10.4. Waiver. Failure or delay in giving Notice of Default shall not waive a
Party's right to give future Notice of the same or any other Default.
10.5 Default by OWNER. Subject to and after termination of this Agreement in
compliance with Sections 10.1 through 10.3, if OWNER Defaults, the CITY shall have
no obligation to perform any of CITY's obligations under this Agreement (as opposed to
the CITY's obligations under the Development Plan and the General Regulations),
unless otherwise ordered by a court of competent jurisdiction. The CITY's election not
to perform as permitted by this provision shall not constitute a Default.
10.6 Default by the CITY. Subject to and after termination of this Agreement in
compliance with Sections 10.1 through 10.3, if the CITY Defaults, OWNER shall have
no obligation to perform any of OWNER's obligations under this Agreement, unless
otherwise ordered by a court of law. However, OWNER shall not be entitled to receive
Project Approvals or take any other action inconsistent with provisions of the
Development Plan, the Newport Beach General Plan, or relevant zoning ordinances
unless otherwise permitted by law. OWNER's election not to perform as permitted by
this provision shall not constitute a Default.
10.7 Specific Performance.
•
20 1,15
(a) The Parties agree that, except as provided in Subsection 9.7.b., the
loss by either of them of their respective rights under this Agreement
would not be compensable through monetary damages. Therefore, the
remedy for a Default for each Party shall be limited to specific
performance and /or injunctive relief.
(b) Notwithstanding the foregoing, in the event any development fees
or taxes are imposed on development of the Property other than those
authorized pursuant to this Agreement or the Development Plan, OWNER
shall be entitled to recover from CITY restitution of all improperly
assessed fees or taxes, together with interest thereon at the maximum
allowable non - usurious rate from the date such sums were paid to CITY to
the date of restitution.
10.8 Effect of Termination. The termination of this Agreement shall not affect
the rights, duties and obligations of the any successor to OWNER to comply with the
provisions of Section 5.3.
11. ENCUMBRANCES AND RELEASES ON PROPERTY.
11.1 Discretion to Encumber. This Agreement shall not prevent or limit
OWNER, in any manner, at OWNER's sole discretion, from encumbering the Property
or any portion thereof or any improvement on the Property by any mortgage, deed of
trust, or other security device securing financing with respect to the Property or its
improvements.
11.2 Entitlement to Written Notice of Default. A Mortgagee shall, upon
written request to CITY, be entitled to receive from CITY written notification of any
default by Owner of the performance of OWNER's obligations under this Agreement
which has not been cured within thirty (30) days following the date of the Notice of such
default.
(a) Notwithstanding OWNER's default, this Agreement shall not be
terminated by CITY as to any Mortgagee to whom Notice is to be given
and to which either of the following is true:
(i) The Mortgagee cures any default by OWNER involving the
payment of money within sixty (60) days after the Notice of default;
provided, however, that if any such default cannot, with diligence,
be cured within the sixty (60) day period, then the Mortgagee shall
have additional time as may be reasonably necessary to cure the
default if the Mortgagee commences the cure within the sixty (60)
day period and diligently pursues the cure to completion.
21 )�I�
(ii) As to defaults requiring title or possession of all or a portion
of the Property to cure: (i) the Mortgagee agrees in writing, within
sixty (60) days after receipt from CITY of the written Notice of
default, to perform the proportionate share of OWNER's obligations
under this Agreement allocable to that part of Property in which the
Mortgagee has an interest conditioned upon the Mortgagee's
acquisition of the required portion of the Property by foreclosure
(including a trustee sale) or by a deed in lieu of foreclosure; (ii) the
Mortgagee commences foreclosure proceedings to reacquire title to
the Property or applicable portion thereof within the sixty (30) days
and thereafter diligently pursues foreclosure to completion; and (iii)
the Mortgagee promptly and diligently cures the default after
obtaining title or possession. Subject to the foregoing, in the event
of any Mortgagee records a Notice of default as to its mortgage or
deed of trust, CITY shall consent to the assignment of all of
OWNER's rights and obligations under this Agreement to the
Mortgagee or to any purchaser of OWNER's interest at a
foreclosure or trustee sale and OWNER shall remain liable for such
obligations unless released by CITY or unless the applicable
portion of OWNER's Property is transferred.
(b) Notwithstanding Subsection 11.2.a. of this Agreement, if any
Mortgagee is prohibited from commencing or prosecuting foreclosure or
other appropriate proceedings including by any process of injunction
issued by any court or by reason of any action by any court having
jurisdiction of any bankruptcy or insolvency proceedings involving
OWNER, the times specified in Subsection 11.2.a of this Agreement for
commencing or prosecuting foreclosure or other proceedings shall be
tolled during the period of the prohibition.
(c) OWNER's execution or breach of this Agreement shall not defeat,
render invalid, diminish or impair the lien of any existing or future
mortgage or deed of trust on OWNER's Property made in good faith and
for value.
11.3. Mortgagee Not Obligated. Except as provided in this Agreement, no
Mortgagee shall have an obligation or duty under this Agreement to perform the
obligations of OWNER or other affirmative covenants of OWNER or to guarantee such
performance. No Mortgagee shall be liable for any Default or monetary obligations of
OWNER arising prior to acquisition of title to the Property by the Mortgagee or their
respective successors or assigns. However, to the extent any covenant to be performed
by OWNER is a condition to the performance of a covenant by CITY, the performance
shall continue to be a condition precedent to CITY's performance. In the event a
Mortgagee elects to develop the Property in accordance with the Development Plan,
the Mortgagee shall be required to assume and perform the obligations or other
affirmative covenants of OWNER under this Agreement.
22 ) �
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12. MISCELLANEOUS PROVISIONS
12.1 Notices. All Notices shall be written and delivered by personal delivery
(including Federal Express and other commercial express delivery services providing
acknowledgments or receipt), registered, certified, or express mail, or telegram to the
addresses set forth below. Receipt shall be deemed complete as follows:
(a) For personal delivery, upon actual receipt; and,
(b) For registered, certified, or express mail, upon the delivery date or
attempted delivery date as shown on the return receipt.
Notices shall be addressed as follows:
To the CITY: City Manager - City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92660
Attention: City Manager
To OWNER: Koll Center Newport Number A
4343 Von Karman Ave.
Newport Beach, CA 92660
Attn: Don Koll
CC: Starpointe Ventures
Either party may give the other a "Notice of a New Address" to modify this Subsection.
12.2 Enforcement Delay; Extension of Time of Performance. Neither Party
shall be deemed to be in Default where delays or non - performance are due to war,
insurrection, strikes, walkouts, riots, floods, earthquakes, fires, oil spills, casualties, acts
of nature, unavailability of materials, governmental restrictions imposed or mandated by
governmental entities other than CITY, suspension of rights in accordance with the
existence of unforeseen circumstances, governmental moratorium other than a
moratorium enacted by CITY, litigation, or similar bases for excused performance. An
extension of time for performance shall be deemed granted for the period of the delay,
or longer as may be mutually agreed upon, but in no case shall the extension of time for
performance exceed six (6) months.
12.3 Severability. If any material part of the Agreement is found by a court to
be invalid, void, or illegal, the Parties shall modify the Agreement to implement the prior
intent of the Parties. These steps may include the waiver by either of the Parties of their
right under the unenforceable provision. If, however, the Agreement objectively cannot
be modified to implement the prior intent of the Parties and the Party substantially
benefited by the material provision does not waive its rights under the unenforceable
23
provisions, the entire Agreement shall become void. For purposes of this Section, and
without excluding the possible materiality of other provisions of this Agreement, all
provisions of Sections 3, 4 and 5 are deemed "material ".
12.4 Entire Agreement. This Agreement constitutes the entire understanding
and Agreement of the Parties regarding the subject matter. This Agreement supersedes
all negotiations and previous offers and understandings between the Parties regarding
the subject matter.
12.5 Waivers. All waivers of the provisions of this Agreement must be in writing
and signed by the Party making the waiver.
12.6 Incorporation of Recitals. The Recitals in Section 1 are part of this
Agreement.
12.7 Covenant of Good Faith and Fair Dealing. Neither Party shall do
anything that has the effect of harming or injuring the right of the other Party to receive
the benefits of this Agreement.
12.8 Covenant of Cooperation. The CITY shall cooperate with OWNER to
obtain any permits from other public agencies that may be required for development of
the Project. OWNER may challenge any ordinance, measure, moratorium, or other
limitation in a court of law if litigation is necessary to protect the development rights
vested in the Property pursuant to this Agreement.
12.9 Justifiable Reliance. CITY acknowledges that, OWNER will reasonably
be relying on CITY's performance of its covenants in this Agreement when OWNER
invests money and effort in construction of the Project.
12.10 Further Actions and Instruments. Upon the request of either Party, the
other Party shall promptly execute documents, with acknowledgment or affidavit if
reasonably required, and take any other action reasonably necessary to implement the
terms and conditions of this Agreement or permit development of the Project in
accordance with the Development Plan.
12.11 Successors and Assigns. Subject to Section 8.3 above, the burdens of
this Agreement shall be binding upon, and the benefits of the Agreement inure to, all
successors -in- interest and assigns of the Parties.
12.12 Construction of Agreement. All language in all parts of this Agreement
shall be construed as a whole and given its fair meaning. The captions of the Sections
and Subsections are for convenience only and shall not be considered or referred to in
resolving questions of construction. This Agreement does not, and is not intended to,
impermissibly contract away the police power, legislative authority or governmental
functions of the CITY in general or with respect to the Property.
24 1 �1(I
12.13 Authority to Execute. The person executing this Agreement on behalf of
OWNER warrants and represents that he /she has the authority to do so and the
authority to bind OWNER to the performance of OWNER's obligations under this
Agreement.
12.14 Consent. Any consent required by the Parties in carrying out the terms of
this Agreement shall not be unreasonably withheld.
12.15 Effect on Title. This Agreement shall not continue as an encumbrance
against any portion of the Property as to which this Agreement has terminated.
12.16 Recording. The City Clerk shall cause a copy of this Agreement to be
executed by the CITY and recorded in the Official Records of Orange County no later
than ten (10) days after the Effective Date. The recordation of this Agreement 6 is a
ministerial act and the failure of the CITY to record the Agreement as required by this
Section and Government Code § 65868.5 does not make the Agreement void or
ineffective.
12.17 Institution of Legal Action. In addition to any other rights or remedies,
either Party may institute legal action to cure, correct, or remedy any Default, to enforce
any provision of this Agreement, to enjoin any threatened or attempted violation of this
Agreement, or to obtain any remedies consistent with the purpose of this Agreement.
• Legal actions shall be instituted in the Superior Court of the County of Orange, State of
California.
12.18 Attorneys' Fees. In any arbitration, quasi - judicial, administrative, or
judicial proceeding between the Parties initiated with respect to this Agreement, the
prevailing party shall be entitled to reasonable attorneys' fees and all costs, expenses,
and disbursements in connection with such action.
12.19 Relationship of the Parties. The contractual relationship between CITY
and OWNER arising out of the Agreement is one of independent contractor and not
agency. This Agreement does not create any third party beneficiary rights.
12.20 Indemnification. OWNER and CITY agree to cooperate in the defense of
any legal action filed and prosecuted by any person or entity other than the Parties that
challenges the validity or manner of approval of this Agreement, the Project Approvals
or the Project Conditions (Third Party Lawsuit). CITY will promptly notify OWNER of any
Third Party Lawsuit upon service. CITY may retain counsel to defend the Third Party
Lawsuit and, in such event, OWNER shall pay all attorneys fees and costs incurred by
the CITY in the defense of the Third Party Lawsuit. OWNER shall also indemnify and
hold harmless the CITY and its officers and employees with respect to any costs,
expenses, judgment, damages or award, including an award of attorney fees and /or
costs to any third party, arising out of any Third Party Lawsuit. OWNER acknowledges
. and agrees that CITY has fully complied with all applicable statutes, ordinances,
including the provisions of CEQA, the State Zoning and Planning Act, and Existing
25 150
General Regulations in the initiation, processing, evaluation and approval of all Project
Approvals. OWNER's obligations pursuant to this Section shall commence as of the
Approval Date and continue for the period specified in Section 8.2 or until this
Agreement terminates, whichever occurs first. The obligation of OWNER to defend,
indemnify and hold CITY harmless shall not apply to the fraud or willful misconduct of
the CITY or its officers or employees that occurred on or before the Approval Date. The
obligation of OWNER to defend, indemnify and hold CITY harmless shall not apply to
the fraud, willful misconduct or violation of law by the CITY or its officers and employees
that occurs after the Approval Date.
12.21 Payments. Any payment due pursuant to this Agreement shall bear
interest at the rate of ten percent (10 %) per annum on the unpaid balance from the date
due until paid with interest compounded monthly.
Dated: 2000
CITY OF NEWPORT BEACH
M
Mayor
•
Dated: 2000 KOLL CENTER NEWPORT NUMBER A •
Its:
26
•
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ATTACHMENT 6:
DRAFT GENERAL PLAN AMENDMENT RESOLUTION
L�
RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
NEWPORT BEACH APPROVING A GENERAL PLAN
AMENDMENT TO INCREASE THE MAXIMUM
ALLOWABLE BUILDING SQUARE FOOTAGE IN OFFICE
SITE B OF THE KOLL CENTER NEWPORT PLANNED
COMMUNITY [GPA 97 -3(B)]
WHEREAS, pursuant to Section 65300 of the California Government Code, the City of
Newport Beach has adopted a comprehensive, long -term General Plan for the physical development
of the City; and
WHEREAS, Koll Center Newport Number A, 1900 Main Street, Suite 350, Irvine,
California, has applied to the City of Newport Beach for a General Plan Amendment for "Office
Site B" of the Koll Center Newport (KCN) Planned Community in order to allow future additional
development on Parcel 1 of PMB 114/22 -24 and Parcels 1, 2, and 7 of PMB 181/13 -19; and
WHEREAS, the proposed General Plan Amendment would increase the allowable building
floor area of KCN Office Site B by 250,000 gross square feet, to a maximum of 1,310,898 gross
square feet; and
WHEREAS, an Environmental Impact Report (EIR) was prepared in accordance with the
California Environmental Quality Act (CEQA) to address the environmental impacts of the subject
amendments. The EIR, comments on the EIR, and responses to those comments were reviewed by
the City Council and certified as complete, reflecting the independent judgment of the City of
Newport Beach; and
WHEREAS, on August 3 and September 7, 2000 and June 7, 2001, the Planning
Commission held duly- noticed public hearings, and, at the conclusion of the hearing and after
considering the evidence and arguments submitted by the City staff, Developer, and all interested
parties, adopted a resolution recommending that the City Council approve the General Plan
Amendment; and
40 WHEREAS, on June 26, 2001, the City Council held a public hearing, at which time the
General Plan Amendment was considered. A notice of time, place and purpose of the public
i
`J
hearing was duly given and testimony was presented to and considered by the City Council at the
public hearing; and
WHEREAS, the City Council of the City of Newport Beach hereby finds as follows with
regard to GPA 97 -3(B):
1. The project consists of the intensification of office development on a project site that is
already designated for and substantially developed in Administrative, Professional and
Financial Commercial use. Since the project site is located in proximity to residential
areas, the additional employment opportunities resulting from construction of a new
250,000 square -foot office tower on the site would contribute to a more desirable jobs -
housing balance in the area. Therefore, the project is consistent with Policy A of the
General Plan Land Use Element.
2. The intent of Policy B of the Land Use Element is to establish limits on land use
intensity in order to insure that the City's circulation system operates at an acceptable
level of service. Provisions to implement this policy, such as the Traffic Phasing
Ordinance and development limits, have been incorporated into the Municipal Code.
The proposed project is subject to these provisions and has been reviewed under them in
the EIR. The EIR traffic study indicates that the proposed project will generate a
significant increase in the number of vehicle trips through major intersections, including
MacArthur Boulevard/Jamboree Road and Jamboree Road/Campus Drive, where no
feasible mitigation measures have yet been identified. However, the project will provide
for both direct intersection improvements and the payment of traffic mitigation fees.
Such fees will be available for the mitigation of impacts at the above intersections when
feasible improvements are identified. Therefore, the project is consistent with Policy B.
3. The site of the new office tower is set back substantially from both MacArthur
Boulevard and Jamboree Road in order to mitigate visual impacts from public streets.
One of the new parking structures will be located close to the intersection of MacArthur
and Jamboree. However, this two -level structure will be depressed partially below grade
and the perimeter of the structure will be heavily landscaped in order to soften public
views. Additionally, the existing two -level parking structure just north of the existing
twin ten -story office towers will be replaced with a new six -level structure located 200
2
feet further back from Jamboree and 50 feet further back from MacArthur than the
existing structure. Per design standards added to the PC text, both new parking
structures will be textured and landscaped to soften their visual impacts. Therefore, the
project is consistent with Policy D of the Land Use Element.
4. The PC District Plan, i.e. the KCN Planned Community text, contains extensive
landscaping standards for different building heights. The PC text also contains detailed
standards for parking, signs and other development standards. Therefore, the project is
consistent with Policy F of the Land Use Element.
5. The amendment will retain compatibility between land uses in that it will allow
intensification of office development on a site that is already designated for and
substantially developed in Administrative, Professional and Financial Commercial use.
NOW THEREFORE BE IT RESOLVED, that:
1. The City Council hereby adopts, by reference, the CEQA - required "Statement of
Findings ", attached as Exhibit "EIR -3" to the resolution certifying the project
Environmental Impact Report (EIR). The Statement of Findings constitutes a set of
binding obligations effective upon this project approval. Pursuant to Section 15091 of
the State CEQA Guidelines, the Statement of Findings summarizes the impacts of the
project, the mitigation measures required to avoid or substantially lessen each of those
impacts, and the "substantial evidence in the record" supporting the finding of each such
impact which will be avoided or substantially lessened.
2. The City Council hereby adopts, by reference, the "Statement of Overriding
Considerations ", attached as Exhibit "EIR -4" to the resolution certifying the project
Environmental Impact Report. The EIR identifies certain environmental impacts of the
project which cannot be avoided or substantially lessened. The City Council has
balanced these significant adverse environmental impacts against environmental
benefits and other benefits resulting from approval of the proposed Project, which are
identified in the Statement of Overriding Considerations, and hereby finds that the
benefits override the identified adverse environmental impacts.
3. The City Council hereby adopts, by reference, the "Mitigation Monitoring and
Reporting Program" (MMRP), attached as Exhibit "EIR -5" to the resolution certifying
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3
the project Environmental Impact Report, and directs that mitigation measures be
implemented in accordance with the MMRP.
4. In light of the preceding findings and actions, the City Council hereby approves GPA
97 -3(B), consisting of the increase in gross building square footage allowable in Office
Site B as specified in Exhibit "GP -1 ", attached hereto.
ADOPTED this 26'h day of June, 2001 by the following vote, to wit:
AYES, COUNCIL MEMBERS
NOES, COUNCIL MEMBERS
ABSENT COUNCIL MEMBERS
MAYOR
ATTEST:
CITY CLERK
40
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• EXHIBIT GP -1:
REVISIONS TO LAND USE ELEMENT TEXT
(GENERAL PLAN AMENDMENT 97 -3(B))
IN THE SECTION OF THE LAND USE ELEMENT TEXT ENTITLED "AIRPORT AREA
(STATISTICAL AREA L4) ":
Amend Paragraph 1 -2, "Office Site B ", to read as follows (deletions are s•F�e ):
"This site is designated for Administrative, Professional and
Financial Commercial land use and is allowed 1,069;898 1,310,898
sq.ft. Support retail commercial uses are allowed within this
allocation. [GPA 97- 3(B)]"
2. Amend the table entitled "Estimated Growth FOR STATISTICAL AREA LA" to
reflect the preceding increase in gross floor area for KCN Office Site B.
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ATTACHMENT 7:
DRAFT ZONING AMENDMENT ORDINANCE
0
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,P
0 ORDINANCE
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH APPROVING A ZONING
AMENDMENT INCREASING THE MAXIMUM
ALLOWABLE BUILDING SQUARE FOOTAGE IN OFFICE
SITE B OF THE KOLL CENTER NEWPORT PLANNED
COMMUNITY [ZONING AMENDMENT 9051
WHEREAS, Koll Center Newport Number A ('Developer "), 1900 Main Street, Suite 350,
Irvine, California, has applied to the City of Newport Beach ( "City ") for a General Plan
Amendment and a Zoning Amendment for "Office Site B" of the Koll Center Newport (KCN)
Planned Community in order to allow future additional development on Parcel 1 of PMB 114/22 -24
and Parcels 1, 2, and 7 of PMB 181/13 -19; and
WHEREAS, the proposed Amendment to the Koll Center Newport Planned Community
text would increase the maximum allowable building floor area in KCN Office Site B to a total of
1,201,349 net square feet while eliminating restaurant and retail - service uses; and
rWHEREAS, on August 3 and September 7, 2000 and June 7, 2001, the Planning
Commission held duly- noticed public hearings, and, at the conclusion of the hearing and after
considering the evidence and arguments submitted by the City staff, Developer, and all interested
parties, adopted a resolution recommending that the City Council approve the Zoning Amendment;
and
WHEREAS, on June 26, 2001, the City Council held a public hearing and considered the
Zoning Amendment, the recommendation of the Planning Commission, and the evidence and
arguments submitted by the City staff, Developer, and all interested parties A notice of time, place
and purpose of the public hearing was duly given and testimony was presented to and considered by
the City Council at the public hearing.
THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH DOES HEREBY ORDAIN AS
FOLLOWS:
SECTION 1: ENVIRONMENTAL REVIEW. Pursuant to CEQA and the CEQA
. Guidelines, an Environmental Impact Report (EIR) has been prepared for this project. After
reviewing the EIR, all comments received during the public review process, and all responses to
those comments, the City Council has certified the EIR as complete, reflecting the independent
judgment of the City of Newport Beach. All records pertaining to preparation, review, and
comment on the EIR are retained in the Planning Department of the City of Newport Beach.
SECTION 2: FINDINGS. The City Council finds as follows with regard to Zoning
Amendment 905:
1. The amendment is consistent with the General Plan in that it provides for an increase in
square footage commensurate with that allowed by the accompanying General Plan
Amendment.
2. The internal consistency of the Planned Community text will be retained in that all
development square footages and open space acreages have been adjusted to retain
appropriate development and open space percentages.
SECTION 3: ZONING AMENDMENT.
1. The City Council hereby adopts, by reference, the CEQA - required "Statement of
Findings ", attached as Exhibit "EIR -Y to the resolution certifying the project
Environmental Impact Report (EIR). The Statement of Findings constitutes a set of
binding obligations effective upon this project approval. Pursuant to Section 15091 of
the State CEQA Guidelines, the Statement of Findings summarizes the impacts of the
project, the mitigation measures required to avoid or substantially lessen each of those
impacts, and the "substantial evidence in the record" supporting the finding of each such
impact which will be avoided or substantially lessened.
2. The City Council hereby adopts, by reference, the "Statement of Overriding
Considerations ", attached as Exhibit "EIR -4" to the resolution certifying the project
Environmental Impact Report. The EIR identifies certain environmental impacts of the
project which cannot be avoided or substantially lessened. The City Council has
balanced these significant adverse environmental impacts against environmental
benefits and other benefits resulting from approval of the proposed Project, which are
identified in the Statement of Overriding Considerations, and hereby finds that the
benefits override the identified adverse environmental impacts.
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3. The City Council hereby adopts, by reference, the "Mitigation Monitoring and
Reporting Program" (MMRP), attached as Exhibit "EIR -5" to the resolution certifying
the project Environmental Impact Report, and directs that mitigation measures be
implemented in accordance with the MMRP.
4. In light of the preceding findings and actions, the City Council hereby approves Zoning
Amendment 905, consisting of the amendments to the Koll Center Newport Planned
Community Development Standards specified in Exhibit "ZA -1 ", attached hereto,
subject to the mitigation measures identified in the Environmental Impact Report and
listed in Exhibit "EIR -5" as conditions of approval of the Zoning Amendment, as
stipulated in Exhibit "ZA -1 ".
SECTION 4: The Mayor shall sign and the City Clerk shall attest to the passage of this
Ordinance. This Ordinance shall be published once in the official newspaper of the City, and the
same shall become effective thirty (30) days after the date of its adoption.
This Ordinance was introduced at a regular meeting of the City Council of the City of Newport
Beach held on June 26, 2001 and adopted on July 10, 2001 by the following vote, to wit:
3 1 ��
AYES, COUNCIL MEMBERS
NOES, COUNCIL MEMBERS
ABSENT COUNCIL MEMBERS
MAYOR
ATTEST:
CITY CLERK
0
1Ll Ll
EXHIBIT ZA -1:
KOLL CENTER NEWPORT PLANNED COMMUNITY
TEXT AMENDMENT (AMENDMENT NO. 905)
The Planned Community Development Standards for Koll Center Newport is amended as set
forth following, with deletions shown str-urkevee and additions shown double underlined
( "TBD" = amendment footnote number to be determined):
Page 1:
DEVELOPMENT CONSIDERATIONS
First Two Paragraphs: [No changes]
Insert New Third Paragraph: "All development and land use within the Koll Center Newport Planned
Community shall be subject to implementation of the mitigation measures
specified in the applicable Environmental Impact Report Mitigation
Monitoring and Reporting Program (MMRP) for that project and/or land
use (including, but not limited to, the MMRP related to EIR No. 158 for
the Koll Office Site B expansion project)." (TBD)
Remainder of Section on [No changes]
"DEVELOPMENT
CONSIDERATIONS"
Pages 14 -16:
PART fl. COMMERCIAL
Section I. Site Area and Building Area
Interior noise shall be mitigated to the levels prescribed in the Airport Environs
Land Use Plan and the City of Newport Beach General Plan Noise Element. Also,
rooftop obstruction lighting shall be provided for buildings ten stories or higher in
accordance with Federal Aviation Administration standards.
Group I. PROFESSIONAL & BUSINESS OFFICES
Acreages shown are net buildable land area, including landscape setbacks with
property lines. (4)
A. Building Sites [No changes]
B. Allowable Building Area
10
C.
Note: Building areas shown in this Part II are net floor areas,
excluding non - habitable space such as equipment rooms, elevator
shafts, stairwells, etc. (Net floor areas shall generally be taken as 95 to
percent of gross floor area.)
Site A:
340,002 square feet (16)
Site B: 963,949
1,201,349 square feet (13)(16) (TBD)
Site C:
674,800 square feet (10)(15)
Site D:
240,149 square feet (8)(13)
Site E:
32,500 square feet (4)
Site F:
24,300 square feet (4)
Site G:
45,000 square feet (8)
2;320,689
2,558,100 square feet (15) (TBD)
Statistical Analysis (4)
The following statistics are for information only. Development may
include but shall not be limited to the following:
Story heights shown are average heights for possible development. The
buildings within each parcel may vary.
Assumed Parking Criteria:
a. [No changes] 0
b. One (1) space _ 399 squafe tee of net timid... »
, n n
"b
e to- Sites ^. B ap.d Q For Sites A, B and C, the
Parking Pool Exception of Part III, Section I -B shall apply: (11)
(TBD)
For the first 125,000 square feet, parking shall be provided at
one space per 250 square feet of net floor area.
For the next 300,000 square feet, parking shall be provided at
one space per 300 square feet of net floor area.
For any additional floor area, parking shall be provided at
one space per 350 square feet of net floor area.
C. Parking structures within commercial and office sites shall
incorporate the following design features in order to soften [heir
visual impacts:
• he sides of parking structures open [o public view shall be
textured and col9ledros faced with brick or other materia
consistent with the structure's associated buildings. Exposed
m— ncolored concrete sides sha ll be avoided.
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Site A
2. Site B
• Linear, lanters and/or trellises with shrubs and-cascading
vines shall be provided alone the outside oLparking level,
visible from public roadways.
the
intersection of MacArthur boulevard and Jamboree Road.
tees within planters and/or trellis structures with trailine
vines shall be provided within the interior of the too parkine
level. Also, the finish grade of the top level of this parking
structure shall substantially match and follow the ore - existing
Surface -grade and shall not extend more than two feet above
the pre- existing surface grade at any point.
In Office Site B. in order to ensure implementation of the
oreceding design features, site. grading landscape. and
architectural plans for both parking structures in that Site shall
be submitted by the developer to the Planning Commission for
review and approval prior—Io the issuance of any building
permits hese lans shall conform to the receding design
reouirements and the applicable development agreem -wL
[No changes]
Allowable Building Area: 963,849 1,201,349 net square feet
(13)(16) (TBD)
Site Area: 43.703 acres (4)(1 1)
a. Building Height
Land Coverage (16) (TBD)
Two story development
............4 196 13.93 acres
Three story development
.............. X38 9.29 acres
Four story development
.............. 333 6.97 acres
Five story development
.............. 4-.4-3 5.57 acres
Six story development
.............. 3-69 4.64 acres
Seven story development
.............. 346 3.98 acres
Eight story development
..............2-:P 3.48 acres
Nine story development
.............. 2.46 3.10 acres
Ten story development
..............224- 2.79 acres
Eleven story development
.............. 2:A�1- 2.53 acres
Twelve story development
............... 84 2.32 acres
b. Parking Land Coverage (I 1)(13)(16)(TBD)
3,213 eaFs 26.77 ...._....
3,719 cars ................ 19.35 acres
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Group V
c. Landscaped Open Space (t 1)
Two story development
Three story development
Four story development
Five story development
Six story development
Seven story development
Eight story development
Nine story development
Ten story development
Eleven story development
Twelve story development
Land Coverage (I 1)(13)(16)(TBD)
.............. 3-84 10.42 acres
..............9.55 15.06 acres
............4 -1-:40 17.38 acres
............ 12.50 18.78 acres
............ 13.24 19.71 acres
............413-44 20.37 acres
............14.16 20.873 acres
............44.44 21.25 acres
............ 14.72 21.56 acres
............ 14.92 21.82 acres
............13.$9 22.03 acres
(No charges in remainder of Paragraph C1
Pages 21 -24:
RESTAURANTS (1)(4)
A. Building Sites
Maximum acreages for Site 2 shall not exceed 1.25 (18) acres.
Maximum acreage for Site 3: 1.765 acres. Maximum acreages for Sites
4 and 5 shall not exceed 3.0 acres. Maximum acreage for Sites 6 and 7
shall not exceed 2.2 acres. (8)
(The following acreages are for information only.)
Site I Deleted (see Group VII) (18)
Site 2 1.25
yes transferred to office use (TBD)
Site 3
1.765 acres
Site 4
1.50 acres
Site 5
1.50 acres
Site 6
1.50 acres (8)
Site 7
0.70 acres (8)
9.213 6.965 acres (TBD)
Site 1 Deleted see Group VII Private Club (18)
Site 3 located within Office Site "F'. (4)
Sites? 4 and 5 located within Office Site "B ". (4) (16) (TBD)
Sites 6 and 7 located within Office Site "G ". (8)
Any portion or all of the restaurant, bar, theater /nightclub acreage for
Sites 2, 4, 5, 6, or 7 not utilized for that purpose shall revert to
professional and business office use. Any portion or all of the restaurant
acreage for Site 3 not utilized for that purpose shall revert to either
professional and business office use or service station use.(4)(8) (18)
The following statistics are for information only. Development may
include but shall not be limited to the following:
E
1]
1v
• B. Building Area (4)
Siten/�nn
2 5,009 sq. ft.
0.11 a_
Site 3 10,000 sq. ft.
.,
0.22 acres
Site 4 7,000 sq. ft.
0.16 acres
Site 5 7,000 sq. ft.
0.16 acres
Site 6 (8) 7,000 sq. ft.
0.16 acres
Site 7 (8) 3,000 sq. ft. 0.07 acres
34,000 sq. ft. 0.78 acres(8)(18)(TBD)
C. Parking
Criteria: 300 occupants/ 10,000 sq. ft.
1 space /3 occupants and 120 cars per acre.
Si 2
56aFS
0.42
—
Site 3
100 cars
aeFe.
0.84 acres
Site 4
70 cars
0.58 acres
Site 5
70 cars
0.58 acres
Site 6 (8)
70 cars
0.58 acres
Site 7 (8)
30 cars
0.25 acres
340 cars 2.83 acres(8)(18)(TBD)
• D. Landscaped Open Space (4)
Site 2
0.72
ae c` s
Site 3
0.70
acres
Site 4
0.76
acres
Site 5
0.76
acres
Site 6 (8)
0.76
acres
Site 7 (8)
0.38
acres
498 3.36 acres (8)(18)(TBD)
E. Building Height
Building height of structures shall be limited to a height of thirty -five (35)
feet.
Group VI. RETAIL & SERVICE CENTER
A. Building Sites (4) (5) (TBD)
Site 1: 5.026 acres
Site 1,500 acres
6.926 5.026 acres
Site 1 shall be t ' a i Offs Si "B." An..�.� en ,... ..11 of the
Fetail and ^
p.efessional -and businesseff:se ;;sv)
I
B. Allowable Building Area (5) (TBD) •
*Retail Site No.I (sq. ft.) 102,110 sq. ft. (14)
Rp'tQ:I S;ite ";a2 (sq. ft.) 10,G00 sq. ft.
[No changes in remainder of Paragraph B.]
C. Landscape Area (5)
Twenty -five (25) percent of the 5.026 acres constituting retail and service
center Site No. I shall be developed as landscape area.
If twenty -five (25) percent of the 5.026 acres constituting retail and service
center Site No. I is not developed as landscape area, a specific site plan
shall be submitted to the City of Newport Beach Planning Commission for
approval prior to the issuing of a building permit.
D. Statistical Analysis (5)
The following statistics are for information only. Development may
include but shall not be limited to the following.
Assumed parking criteria: One (1) space per 200 square feet of net
building area at 120 cars per acre.
Site I [No change] •
2. Site 2 (TBD)
iir
•.
•... _
E. Building Height
Building height of structures shall be limited to a height of thirty -five (35)
feet above mean existing grade as shown on Exhibit "B ". (5)
•
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(In PART V1, Add the following amendment footnote:l
(TBD) Planned Community Text revisions (Amendment No.905, adopted
Ordinance ) including the following changes:
a. Increase the allowable building area in Professional and Business Office Site `B"
by 237,500 net square feet.
b. Convert Restaurant Site 2 (5,000 net square feet) to professional and business
office use within Office Site `B ".
C. Convert Retail and Service Center Site 2 (10,000 net square feet) to professional
and business office use within Office Site `B ".
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ATTACHMENT 8:
FISCAL IMPACT ANALYSIS
[Distributed separately due to bulk. Available for public review at the City's Planning Department]
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ATTACHMENT 9:
RESOLUTION FOR PROJECT DENIAL
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1��
0 RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
NEWPORT BEACH DENYING GENERAL PLAN AND ZONING
AMENDMENTS TO INCREASE THE MAXIMUM ALLOWABLE
BUILDING SQUARE FOOTAGE IN OFFICE SITE B OF THE KOLL
CENTER NEWPORT PLANNED COMMUNITY [GPA NO. 97 -3(B)
AND ZONING AMENDMENT NO. 9051
WHEREAS, pursuant to Section 65300 of the California Government Code, the City of
Newport Beach has adopted a comprehensive, long -term General Plan for the physical
development of the City; and
WHEREAS, Koll Center Newport Number A, 1900 Main Street, Suite 350, Irvine,
California, has applied to the City of Newport Beach for a General Plan Amendment and a
Planned Community Amendment for "Office Site B" of the Koll Center Newport (KCN)
Planned Community in order to allow future additional development on Parcel 1 of PMB 114/22-
24 and Parcels 1, 2, and 7 of PMB 181/13 -19; and
•
WHEREAS, the proposed General
Plan Amendment
would increase the allowable
building floor area of KCN Office Site B
by 250,000 gross
square feet, to a maximum of
1,310,898 gross square feet. The proposed
Amendment to the
Koll Center Newport Planned
Community text would increase the maximum allowable building floor area in KCN Office Site
B; and
WHEREAS, an Environmental Impact Report (EIR) was prepared in accordance with
the California Environmental Quality Act (CEQA) to address the environmental impacts of the
subject amendments, which EIR was reviewed by the Planning Commission and, by separate
resolution, forwarded to the City Council with a recommendation for certification as complete;
and
WHEREAS, on August 3 and September 7, 2000 and June 7, 2001, the Planning
Commission held a public hearing, at which time the proposed amendments were considered. A
notice of time, place and purpose of the public hearing was duly given and testimony was
presented to and considered by the Planning Commission at the public hearing; and
1J l
WHEREAS, on June 26, 2001, the City Council held a public hearing, at which time the •
proposed amendments were considered. A notice of time, place and purpose of the public
hearing was duly given and testimony was presented to and considered by the City Council at the
public hearing;
NOW THEREFORE BE IT RESOLVED, the City Council of the City of Newport
Beach finds, based upon the entire record including the findings contained within the
Environmental Impact Report, that the increased development intensity of the proposed project
will create environmental impacts, some of which cannot be mitigated to a less than significant
level.
NOW THEREFORE BE IT FURTHER RESOLVED, that the City Council hereby
denies General Plan Amendment No. 97(3) -B and Zoning Amendment No. 905.
ADOPTED this 26th day of June, 2001 by the following vote, to wit:
AYES:
NOES: •
ABSENT
MAYOR
ATTEST:
CITY CLERK
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